IN THE COURT OF APPEAL (JOS DIVISION)
ALOYSIUS IYORGYER KATSINA-ALU JUSTICE, COURT OF APPEAL (Presided)
OBINNA YA ANUNOBI OKEZIE JUSTICE, COURT OF APPEAL
RAPHAEL OLUFEMI ROWLAND JUSTICE, COURT OF APPEAL, .(Delivered the lead judgment)
MAIGIDA JAURO MILLA APPELLANT
THE STATE RESPONDENT
MACAULAY, J.C.A. (Delivering the Lead .Judgment): The appellant before us was arraigned, tried, convicted and sentenced to death by the learned trial Judge, Hon. Justice D.E.Y.
Aghahowa, sitting at Yola High ,Court on 19th November, 19HI, for the culpable homicide of Sember Sarikin Power, (also known and described by others as Sambo Sarikin Pawa), an offence punishable with death, contrary to Section 221 (a) of the Penal Code Law. At face value, the facts may look refreshingly simple. The thrust of the prosecution case is that, on or about the 13th March, 1978, the appellant in Tugga village, within the Gongola Judicial Division, stabbed the deceased with a knife on his abdomen with the intention of causing the latter's death, and this act, it was said resulted in the death of the said Sembe Power. (Italics mine)
The prosecution called four (4) witnesses none of which was an eye-witness of what actually happened either before, or at the time of the alleged, stabbing. The gloom is not entirely unrelieved, because the accused who later gave his own account of what he said had happened, must be taken to have been the only eye-witness. In addition to this, the prosecution is also predicated and founded on the appellant's own statement, which the learned trial Judge adjudged and acted upon as a voluntary confession. This statement, as well as both tell-tale exhibits 2 and 5, allegedly collected, variously, at the scene of the crime and still later, exhibits 2A. 3 and 3A allegedly found at the appellant's house , obviously completed the scenario, as perceived by the learned trial Judge. The exhibits themselves, not to speak of the way, perhaps the manner in which they were recovered, at least received for that purpose by the Police, lend themselves to various explanations and/or interpretations, as it would appear that no search warrant of any kind was produced unless, perhaps, it must be presumed that a proper, in the sense of legal, search was ever conducted. The learned trial Judge, by and large, in his reconstruction of the scenario, accepted some explanation and rejected others, from what amounted to the basic of his belief or disbelief in the way and manner, some or the other of the various pieces, were eventually recovered.
Of the 4 (four) prosecuting witnesses who testified, (2) two (PW2 and PW3), were police sergeant and Corporal, respectively attached to Mayahelwa police station which is on the way to Yola. and Wasa Police Outpost (in Kafanchan Division of Kaduna State), obviously, two different commands, P.W. 1, an expatriate, was the doctor who performed the autopsy, whilst P.W. 4, also called Bobbei Tugga, was the Ward Head at Tugga. and who, I believe quite truthfully, deposed to the fact that he knew both the deceased Samho Sarkin Pawa, and the appellant quite well. He said that 12/3/78, as a result of what one Inuwa told him, he preceded to a spot, presumably the scene of the crime, where he saw the prostrate body of Sambo Sarkin Pawa which he said, was clearly showing three (3) separate wounds on different named parts of the anatomy. It would appear, though it is unclear from his, testimony, that he went there alone. At least, the record shows that, on receipt of the information, his first care was to despatch Inuwa on one Hammajam's motor cycle, obviously with instructions to alert the police at Mago-Belwa of the finding, whilst he himself kept vigil over the corpse pending the expected arrival of the police on the following day, which would be perhaps 13/3/78. Perhaps I should say that the date show on the particulars of the charge which state the offence, show that the incident took place on or about the 13th March 1978, not 12/3/78. (all Italics are mine).
Be that as it may, on 12/3/78, one Inuwa Kachala who, on the records does not appear to have been the same person who brought any message by way of Hammajam from PW .4 to the police at Mago-Belwa. (unless he was indeed the same person), alerted the police as to. I quote,
" a case of culpable homicide which had happened in their village called Tugga" (unquote, Italics suplied).
There is however on evidence on the record whether the Inuwa despatched by PW.4 is the same person as lnuwa Kachalla who took the news to the station to cover the investigation, followed Inuwa Kachalla to the scene where, at the same lime and place, in addition to collecting the body for onward H transmission to Yola General Hospital for autopsy, they also found on the scene (i) the left foot of Ii pair of rubber shoes (ii) a knife. It would appear that none of them seemed to have seen, or been seen, by P.W.4 who said he kept vigil over the corpse throughout the night of 12/3/78, at least up to whatever time when all three travelled back that same day from the scene aboard the van which conveyed the corpse, now entrusted to the custody of the Corporal and lnuwa Kachalla enroute to Yola Hospital, PW.2 having alighted at his police station. There is no evidence that after this visit, the police visited the scene again on 13/3/78, assuming that this was their date of arrival on the scene. Albeit, if PW4 said that it was when the police visited the scene on this day, that is 13/3/78, that they saw one of a pair of shoes which he witness identified to be similar to the one he had always seen with the accused, then he must be taken to have seen the investigation party that left Mago-Belwa police station. To use his own words, I quote.
"..... When the policeman carne to the scene on the following day, I saw ...... Some policemen, Inuwa and I were present at the spot when the one leg of the shoe belonging to the accused was found at tile spot . ...... (unquote, Italics is mine).
It does not appear that P. W. 2 recollected seeing either Kachalla or PW4 during this visit of the 13/3/78; at least, he never said so. Rather, he said that it was (2) two days later, (and that would be after the initial report on 12/3/78, that is on 14/3/78), that Inuwa Kachalla carne to the station, this time with Exhibit 4, (a bicycle) which he told them, he (Kachalla) had recovered from the scene of the crime on 13/3/78. The presence of the bicycle at the scene must have escaped the attention of both police officers. Somehow, D there is no evidence as to whether PW.4 also saw the knife, half-pair of shoes, and latterly, the bicycle. Perhaps he was too near the wood to see the trees. If anything, whilst PW2 said "I do not know the owner of the bicycle", PW.4 who must have slept on carbon papers besides the corpse, contrived to see none of these items. He was however on hand when a footwear he described blandly as the second leg, was, found at the house of appellant. In his own words, I quote:
"It was when we discovered the other pair of shoe in the house of the accused, that we concluded that both the two pairs, including the one that was found at the scene, belonged to the accused."
Under cross-examination, though, he admitted that it was when the police were looking for the accused in his house that they discovered the other leg of the pair of the shoes. He said further, I quote:
"I was present when the police came to the house of the accused. The shoe found at the scene was never used to test the foot of the deceased. The accused was found in his house when I got there with the police. I do not know of where the police subsequently arrested him .........." (unquote) (all Italics are mine)
PW.2 filled this gap in his testimony when he said that it was in the course of his investigation that, following a police signal on 17/3/78 from Yola, that the appellant had already reported himself there, that he went to bring the accused hack to Mago-Belwa.
Significantly, there has been no mention of the accused having been arrested, or charged for any offence, at any time, either before or after, he left Yola. However, the witness said he cautioned the accused in Fulfude after he brought him back, in the course of which, the accused volunteered a statement which he recorded in that language, counter-signed as recorded. The accused had thumb-printed same as correct, when read over to him. That statement, Exhibit I, together with the English translation, according to him, was later verified and authenticated as Exhibit 1 A. before his superior police officer. That officer was not called and did not give evidence in the Court below, so one may never know how he did the authentification. It is obvious that even though the accused flatly denied making the statement, not least the English translation, the learned trial Judge treated same as confessional statements, and admitted them as such. He also admitted the two half-pairs as Exhibits 2 and 2A. On the records, there is evidence that on 18/3/78, PW2, PW3, "the Corporal," (now identified as the one named Bulus) together with the appellant, did visit the latter's house -this time apparently without the ubiquitous Inuwa KachalJa and there, they were alleged to have recovered the following items, viz :-
It is significant to note that whereas PW2, who was at the scene sometime after 7p.m. on 17/3/78, possibly on the morning of 13/3/78, hut not on 18/3/78, found only one left foot of the rubber shoes, (Exhibit 2A), a knife, now Exhibit 5, PW4 who said he was present when the discovery was made by some policemen, lnuwa and himself at the scene, recognized only "one leg of an identifiable shoe which he said belonged to the accused; that the "other pair" was discovered at the residence of the accused in his presence, and whilst the police were looking for the accused in his house. There is no direct evidence by him as to which leg he saw, at cither venues, firstly, at the scene of the crime, and latterly, which "other pair" was discovered at the residence of the accused. He obviously fell into the deep sleep of Endymion and was perhaps either too near the corpse to see with Exhibit 2A, 3, 3A or indeed Exhibits 4 and 5. Did he infact see anything?
On the evidence of P. W. 2, it is now clear that his reference to "the Corporal" was the Corporal named Bulus who had accompanied him to the search of the appellants' house on 18/3/78. Bulus Bahago.P. W.3 attached to Wasa Post, was then in his accompaniment during his first ever visit to the scene on 12/3/78, or early 13/3/78,. If he is the same Corporal, then his evidence is that it was Oil 19/3/78 that one Inuwa Kasa, quote:
"came with a report that there was a body lying down on the road to Tugga village. Sergeant Tabuo Grimpura (not Abbas Yola PW2) , and I left for the scene ....................... We saw the body and a bicycle lying about three feet away from the body."
This rather disparate group according to this witness, made the following findings, and observation listed below, I say disparate because they appear to have been a different set from that which set out from Mago-belwa after 7p.m. Oil 12/3/78.
(i) A knife which was about two feet away from the body.
(ii) At the spot, the left foot of a pair of rubber shoes.
(iii) It was there and then that one Inuwa Kachalla identified the bicycle as belonging to the accused. This confirmed that they also found a bicycle .
(iv) The Sergeant, Inuwa, the village Head (presumably PW4) and himself then went to the house of the accused but could not find him nor anyone in his house.
(v) All of them then returned to the scene and collected the bicycle, the knife and a left foot of the rubber shoe for safe custody in their Exhibit room at Mago-belwa Police station and (they)"came down to the General Hospital in Yola with the body of the deceased ......." The witness, it would appear, didn't say so.
Unless Inuwa Kasa who made the report on 19/3178 was different from Inuwa Kachalla who had earlier made a similar report to PW2 at the, station on 1213178 around 7p.m., then it may safely be assumed that this Inuwa Kasa also went with the body to Yola where the body was taken for autopsy by PW1, the doctor. The doctor who performed the autopsy on 14/3/78 on the body of one Sambe Sarkin Pawa, said that the body was identified to him by one Inuwa Sabala of Kungun village whose relationship to the deceased (if any); was not disclosed to him. Who then was this Inuwa Kasa who does not appear to have been known by either PW2, Abbas Yola, or P.W. 4, but only to P.W. 3? Mr. Kangaji has told the Court that Sergeant Tabuo Grimpura who had followed P.W. 3 to the scene, was the same person as Corporal Bulus Bahago who, on the records, was at Yola, or even at the autopsy. How could Corporal Bulus P. W. 3 also be the same person as Sergeant Grimpura? If the autopsy was conducted by the doctor P.W. 1 on 14/3/78, which body did Inuwa Kasa identify at Vola Mortuary, assuming the body got there 'on 13/3178, or whatever date it eventually reached Yola, after P. W. 2 had alighted at Mayo-Belwa police station on his way from the scene of the crime? May be after a re-run of the facts as they are on the records, the reading apart, the jig-saw puzzle thrown up, do not make them so refreshingly simple, after all.
Learned counsel, Mr. R.C. Nwaiwu for the appellant and I.A. Mangaji, learned Senior State Counsel Grade I for the State, both filed briefs of argument. By leave of the Court, the original grounds of appeal filed earlier, were withdrawn and accordingly struck out.
Learned Counsel for the appellant, as indeed, the learned State Counsel formally adopted their briefs of arguments and concentrated their oral representations on the additional grounds filed and argued. For ease of reference, without reciting the particulars, the new grounds filed are set out below, seriatim to avoid repetition.
The learned trial Judge erred in Law when he convicted the appellant of Culpable Homicide punishable with death despite material contradictions ill the prosecution evidence, and that error has occasioned a miscarriage of justice.
The learned trial Judge erred in Law when he adopted an unusual and unorthodox procedure to associate the appellant with Exhibits 2 and 2A at the trial and that error has led to a miscarriage of justice.
The learned trial Judge erred in law on the facts when he held that Exhibit 1 was made by the appellant and on law when he relied on Exhibit 1 to convict the appellant when it had not been properly and conclusively proved to have been made by the appellant.
The learned trial Judge erred in Law when he accepted and acted on inadmissible evidence, and such error has led to a miscarriage of justice.
The learned trial Judge erred in Law when he rejected the defence submission that failure of the prosecution to call Kachalla as a material witness was fatal to the prosecution case, Kachalla having been shown by evidence to have played key roles in the discovery of the crime.
The decision is unreasonable, unwarranted and could not be supported, C having regard to the evidence.
At the hearing of this appeal, learned Counsel Mr. Nwaiwu made the following additional oral submissions. In adopting his brief of argument, he laid particular stress on three issues:
(a) The inconsistency and/or discrepancy in the evidence of PW3 and PW4 with regard to the discovery of the bicycle Exhibit 4. The main plank of this submission is that the learned trial Judge used hearsay evidence on it (the bicycle) to corroborate the alleged confessional statements, Exhibits 1 and 1A He contended that, having himself conceded that there was no proof that the bicycle "elonged to the appellant, he nevertheless wrongly proceeded to act on it He said that Exhibits 3 and 3A strengthen the point on Exhibit 4. (see p.33, line 22)
(b) He contended that the learned trial Judge adopted an unorthodox method in Court when he made the appellant try on for size Exhibit 2 and 2A, at the end of which exercise, he came to a conclusion prejudicial to the appellant, and this, in the face of the denied of ownership of the shoes -the separate legs allegedly recovered, both at the scene of the crime, and at the appellant's house. And this also, not withstanding the appellant's denial of the ownership of the other legs, allegedly recovered by PW2 and PW3, even when PW2, under cross-examination, admitted that he did not know whether Exhibits 2 and 2A are of the same pair.
Learned counsel contended that the person killed, Sambe Sarkin Power (Pawa), was not identified to PWI by anyone who knew the deceased, but by a stranger from Kunguma village, who, not only was not called, but whose blood relationship with the body, the doctor did not know, since he was not told. He said that even though there was no
eye-witness to the alleged crime, the police did nothing to bring a proper person who knew the deceased, and who should have identified the body to PW.1. He said that Inuwa Kachalla was not even the person mentioned by the doctor. Whereas, he said, the incident took place at Tugga village where PW.4 might have been expected to identify the body, that task was left to a complete stranger, a man from another village, Kunguma.
Finally, learned counsel played his trump card when he contended that the confessional statements, Exhibit 1, 1A, tendered through PW2, were not properly proved to have been made by the appellant. In his follow-through submission, he pressed home the argument that, once the appellant denied ever making the statement at all, the superior Police Officer who verified the alleged confessional statement, should have been called. In effect, he contended that the prosecution case, propped as it is on that confession, fails and must fail once that statement is removed. In the event, he submitted that the prosecution has not discharged the onus placed on it by the law under Section 137 (1) of the Evidence Act, and the appellant therefore, deserves a reverse verdict of acquittal.
In his reply, Mr. Mangaji, learned Senior State Counsel Grade I, intimated the Court that he would be adopting his brief of argument in its totality, and would answer the points raised in Appellant's brief of argument, seriatim. He however proceeded to address all the concerns raised in the grounds of appeal, together. In the process, he conceded that there are indeed contradictions, and that the evidence of PW3 relating to the discovery of the bicycle was hearsay; that the learned Judge in his judgment having rejected this evidence, which he said he had expunged from the records, there was nothing left to connect the appellant with the bicycle, in so far as Inuwa Kachalla has not been called by the prosecution to give evidence. This he conceded, left the Court with Exhibits 2 and 2A, one of which was found during the search conducted at the appellant's house: He submitted that the ownership of these exhibits is only explicable on the premise that the contents of Exhibits 1 and IA are true. He said there was a police signal from Yola and conceded that the fight took place on 12/3/78, and the police were on tire scene on 13/3/78. He said that though PW1 and PW4 observed different wounds on the body, the latter being a layman should be excused for the lapse which did not ensure to rob him of his ability, perhaps qualifications, to testify to the fact of his personal knowledge of the deceased. Learned counsel submitted that on the point of identification, the ratio decidendi laid down in the R. v. Laoye 6 WACA 6, could be distinguished in that, in the case cited, barring medical evidence, there was no scintilla of injury sustained on the body. Though he contended that the learned trial Judge found Exhibits 1 and 1A properly proved, and thereby admitted them, he conceded that in their absence, there would have been no case made out by the prosecution against the appellant, since the latter's case wholly rests 011 them.
When asked by the Court what Exhibits 1 and 1A proved if accepted, the learned Senior State Counsel submitted that, on the admitted evidence of a sudden fight, admitting also that on the face of the Exhibits it was the deceased who provoked the fight, the Court could return a guilty verdict and the appellant convicted under Section 224, particularly as the appellant did not confess to culpable homicide under Section 221(1) of the Penal Code.
I shall now take the additional grounds of appeal, seriatim, as canvassed and replied to in the respondent's brief of argument.
It is trite law that it is not the duty of the Judge to refer in his judgment to every inconsistency or inaccuracy in the evidence of witnesses. It is enough that the learned counsel for the respondent has conceded that there are inconsistences and has narrowed that margin to a consideration of the material ones with respect to the bicycle and the shoes, Exhibits 2 and 2A, and Exhibit 4. There is no doubt that there was no proof as to the ownership of Exhibit 4, neither was there any suggestion that it belonged to the appelllant. It is' also not in dispute that Exhibits 2 and 2A and 4 were picked up Hi somehow, albeit at different times, at the scene and at the house of the appellant, respectively. As to the latter exercise, there is no evidence as to how the search was conducted, much less, whether any search warrants were executed at all, and if so, on whom. In the result, it is possible but just probable, that Exhibit 2, 2A, 3, 3A, 40reven 5, may all have been planted, either by Inuwa Kachalla or anyone else for that matter, and it would be unsafe even to speculate that they have any connection with the appellant, only because they were recovered as attested to. In my view, therefore, grounds 1and 4 succeed.
ISHOLA vs. THE STATE (1978) 2 L.R.N. and the authorities cited t herein at pages 125/7, lay down the accepted postulate that inconsistencies, where found, could be ignored if they are insignificant or de minimus, and not otherwise material.
GROUND 2: (see page 9)
The decision in R. v. Gould (1840) 9 C & P 364, accords with the requirements of Section 29 of the Evidence. Law, which in effect postulates that, facts discovered in consequence of inadmissible information given by the accused, together with evidence that such discovery was made in consequence of the information, may be given even where the information itself, would 1I0t be admissible in evidence. To parody that statement, I am of the view that evidence of the finding of the right leg of the rubber shoe (Exhibit 2A), allegedly from the house of the appellant together with the evidence that the said discovery was gleaned from Exhibit 1, 1A, may be given where these Exhibits themselves, that is, the confessional statements, would not be F; admissible. The only proviso however is that, if the fact discovered is relevant, evidence of it is admissible irrespective of the source. In Sadan & Anor. v. State (1968) N.M.L.R. 208, following Kuruma vs. The Queen (1955) A.C. 197, it was held that if evidence is relevant, it is admissible and the Court is not concerned how it was obtained. In Criminal cases, however, a Judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. Whether, as suggested by Mr. M:tngaji that this "unorthodox", exercise or procedure was surplussage which the learned trial Judge permitted himself to be indulged in, there was nothing wrong in the Judge asking (there is no evidence he embarked on any force) the appellant to try to two halves for size even if, after all, the shoes were in fact not his, and/or were otherwise planted by a person or persons whose feet might well have fitted, equally splendidly. This ground fails.
GROUD 3: (See page 9)
Confession as a specie of admission is defined in Section 27(1) of the Evidence Act as an admission made at any time by a person charged with a crime, stating or suggesting the inference, that he committed that (particular) crime. "Admission" is often used as an admission of some fact relevant to a crime; whilst "confession" is sometimes confined to a full admission of guilt (see an Introduction to Evidence, 4th Edition p.298 by Professor Nokes). As I pointed out earlier, the charge and particulars stated that the appellant killed Sambe Sarki Power On or about the 13th day of March, 1978, at Tugga village......... Exhibit 1A which is the English translation of the Fulfude version, is at the worst, the appellant's perception, in his own words, of what he said happened. The learned trial Judge must have seen it in that light. How otherwise did he interpret it when at page 30 (lines 26-28) he said, inter alia;
"...... I propose to receive his story stating his own side of the case in the form in which he decided to present it ............ This I think I can do by reason of Section 181(2) of the Evidence Law"
"Earlier on, at the same page, he had said, "The accused did not give any reason for refusing to affirm or swear an oath and so section 181(1) cannot apply to the case in hand. There is no provision in the Criminal Procedure Code which allows an accused to make an unsworn statement in the High Court.. .. "
(But see Section 191 Criminal Procedure Law as read with Sections 230 and 231 Criminal Procedure Law). Under section 231, the accused can only swear if he so wishes and cannot be asked any questions as to why he refused to affirm or swear on oath. At page 32 of the record (lines 1-4) the learned trial Judge, after reviewing the evidence of P.Ws. 2, 3 and 4, concluded by saying "I believe that the accused made the statement voluntarily as to Exhibit 1 ......."
At page 33 (lines 2-8) he said quote;
"I further hold that Exhibit 1 was made by the accused ...... Having found that Exhibit I is a confessional statement, does it amount to a confession of murder? It is true that at the time the accused made Exhibit 1 he did not know that he was confessing to murder as he was then not aware that the deceased had died but........ .intends the natural and foreseable consequences of his act ...... (unquote)
In further argument before this Court, the learned Senior State Counsel Grade I had conceded that the appellant did not confess to culpable murder, and if there was any conviction at all, it could have been under Section 224 of the Penal Code. It seems to me that the learned Judge didn't attempt to answer the question he asked himself whether Exhibit 1 amounts to a confession to murder.
Without going further, it seems to me that on the evidence before this Court Exhibit 1 and 1A which is the sheet-anchor of the prosecution's case, might well be the last plank in the drifting shipwreck in the face of the prosecution's admission that, in the absence of Exhibit 1 and 1A, there would have been no case made out against the appellant. Was that statement, freely accepted as the appellant's own story, a confessional statement, made voluntarily? If it was a confessional statement voluntarily made, was it satisfactorily proved? If it was not, was the learned trial Judge entitled to use it? It is settled law that where an accused person confesses to a crime, even as in this case, where there is no eye-witness of the killing, there is no law which prevents his being convicted on his confession alone, provided it is positive, direct and properly proved, though invariably, there are other circumstances outside the confession which help to stabilise it (The State v. Oji Oronsi (1969) 1 NMLR 204 at 206): But it is only advisable to have some other evidence outside it, no matter how slight, to show that the confession was made Kanu & Anor. v. The King 14 WACA 30). In James Obi Achabua v. The State (1976) 12 S.C. 63) the Supreme Court held that confession alone, even without corroboration, can support a conviction so long as the Court is satisfied of the truth, and this beyond reasonable doubt. (Section 137(1) of the Evidence Law) Any lingering doubts as in this case, not greatly lowered by the prosecution's failure to prove conclusively both the confession and the subsequent authentification of the alleged confession before the Senior Police Officer before whom the appellant was taken, must create a doubt which can only ensure to the benefit of the appellant under Section 137(1) of the Evidence Act. At bottom line, as the law stands, in all cases, the whole of the confession should be given in evidence. As the Federal Supreme Court stated in The Queen v. Itute (1961)1 All NLR. 462 at 465.
....... The whole of an account which a party gives of a transaction must be taken together, and his admission of a fact disadvantageous to himself, shall not be received, without receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that he has made such assertion, but as admissible evidence of the matter thus alleged by him, in his discharge."
The learned trial Judge himself at page 35 (lines 16-20) said;
"In Exhibit 1 and 1A, however, the accused has private defence of his person, self-defence and or provocation. On his general denial, I do not believe him and prefer the case put forward for the prosecution .......".
Further down at (lines 34-36) he then concluded thus
"The onus is on the accused to prove by evidence the truth of the story that he has told to in Exhibit 1".
But how could he do this after he had said in his defence.
"I was never taken before a superior Police Officer" (page 16, lines 25-26)1 Yet that officer who counter-signed Exhibit I, and who shall have authenticated same on a fresh questionnaire, was not called, if only to assist the learned Judge in weighing up the elements of the confession .he admitted as made voluntarily. Not having done so, any dispassionate observer, not least this Court, may be excused the temptation of adopting the observation of Uwais, J.C.A. (as he then was), in Ibrahim vs. State (1979)3 LRN page 110, where at 1161 7, he said, inter alia,"
...... The Chief Judge concerned himself mainly with the issue whether the confession allegedly made by ........was admissible under Sections 27 and 28 of the Evidence Law, but did not consider in detail, if, after admitting tile confession, he should act on it. ....."
I am also firmly of the view that the appellant's statement did not amount to a confession to culpable homicide, punishable under section 221(1) of the Criminal Procedure Law. On the final concession of the learned State Counsel that if the stabbing allegedly admitted by the appellant in Exhibit 1, 1A did take place, the act would amount to self-defence, it seems to me that, such admission would be a complete answer to the killing. It is clear on the records that the learned judge, after having himself stated the requirements for any reliance on Section 65 of the Penal Code, merely dismissed this aspect of an available defence to the appellant with the bland statement at page 37 (lines 16-18)
"As stated earlier, I do not believe that the deceased attacked the accused with a knife or at 'all......."
Quite clearly, he never considered whether the appellant used a knife at all, and if he did, whether he did so in the agony of the moment when he lashed out with his knife blindly into the darkness...... In my view therefore this ground succeeds.
GROUND 4: (see page 9)
This point has already been disposed of in Ground 1. GROUND 5: (see page 9/10)
The prosecution has a complete discretion with regard to whom it can call as its witness, and would therefore be expected to call such material witness(es) as could be sufficient for it to prove its case. The defence cannot crowd its style. If however, there is a material witness which it has failed or neglected or perhaps, refused to call, the prosecution is obliged by law, and neater practice requires that at the request of the defence. such witnesses will be available to it for cross-examination, or otherwise the statement(s) of such a witness( es) would be made available to it, for whatever use the defence might wish to make of such statements, should it decide against F" getting the facts from the witness box.
In this case, lnuwa the jack in the box, has undoubtedly featured under conditions that would have made his testimony helpful to the fair hearing of this case, if the prosecution chose to call him as a witness. The prosecution not having done so, it is trite law that the accused was at liberty to call any witness including him, if he felt he/or they would assist his case. It is clearly the law that the mere fact that a witness has been called at one stage by the prosecution, will not derogate from his right to call the same witness for his defence. (sec Onifade & Ors. Vs. State (1968) NMLR, 261. Indeed on the records at page 39 (lines 12-21) it would appear as the learned trial Judge observed, that".
"Throughout. the trial till the address by Counsel. the accused and his counsel did not inform the Court that they would want Inuwa Kachalla called as a witness ... " "The failure by the prosecution to call Inuwa Kachalla as a witness does not, in my opinion, affect the strength of the case made against the accused" (unquote)
With regard (see 148 C.C.) of the Evidence Act, it is my view that the proposition of the law in Criminal cases, as advanced by learned Counsel for the appellant, is not a correct statement of the law. Section 148(d), usually called in aid in Civil cases deals with the failure (usually of a defendant), to call evidence, and not the failure to call a particular person. A party is not bound to call a particular witness if he thinks he can prove his case otherwise. Also it must be shown that that party "withheld" the proposed witness, or that his evidence was indispensable in order to enable him establish his case.
In Criminal cases, the calling of a witness, is at the discretion of the prosecution. They are not bound to call a witness who will not speak the truth or who, from the circumstance of the case, is better called by the defence.
"The case of James.v Babatunde v. The State, cited by learned Counsel Mr. Nwaiwu, in fact dealt with Section 148(a) of the Act which postulates the presumption relating to possession of stolen property. It has nothing to do with the prosecution having anything to hide, unless perhaps it can he said that it was the prosecution that with-held such witness or that his evidence was indispensable in Older to enable the appellant rebut the claim of the prosecution with regard to recovery, perhaps possession of the exhibits, particularly Exhibit 4, the bicycle, proof of any of which element, could supply the deadly nexus between the crime and the appellant, or that in the absence of the evidence of Kachalla, the defence case must necessarily fail. For the above reasons, it is my view that ground 5 fails. GROUND 6:(see page 10)
In my view, nothing turns much on the evidence that it was finally one Inua Sabala of Kangarna village who identifi1ed the body to P. W. 1 as that of the deceased Samber Sarkin Pawa who, without doubt, was the same Sambo Sarkin Power named in the information.
Apart from this man P.W. 2,P.W. 3 and P.W. 4 saw the body which was identified by the Ward Head (PW4)as the body of Sambo Salkin Pawa, now dead. I have no hesitation in saying that his corpse was positively identified as the body lying on the road, or that it was the same body that was taken to Yola Hospital by PW3. Inuwa Kachala (possibly Inua Sabala) who identified the body to PW 1. There is evidence that on 12/3/78, possibly sometime after 7 p.m. when Inuwa reported an incident at their village (Tugga) at the Police Station. PW2,PW3 and the inevitable Inuwa Kachalla proceeded to the Scene where they saw the body of the deceased, a left foot of a pair or rubber shoes and a knife. There are conflicting accounts when exactly the party first saw the body. Since there were no eye witnesses, it may never be known whether or not that knife they said they found was the murder weapon, though the dual possibility that it was either planted there or was otherwise the knife of the appellant. cannot he ruled out. Having considered all the evidence, I am of the view that this appeal. having principally succeeded on the vital point of the unproven confession, in view of the inconsistencies and contradictions in important particulars surrounding the alleged confession, it would be dangerous and unsafe to convict the appellant, even under Section 224 of the Penal Code, where an available defence of self-defence was open to him. Regrettably, the learned trial Judge new off al a tangent on some of the issues where legal evidence may have sufficed. On an over view of all the facts. it call hardly he said that this Court has been too generous to the appellant because the learned Judge was obliged by law to look at all the surrounding circumstances of the confession to determine if that confession was satisfactorily proved, and if so, what weight to give to it, at the conclusion of the hearing. I am of the view that he fell short of the guideline laid down in 14 WACA 30 at 32 in PHILIP KANO AND ANOR. vs. THE KING where the observations of Rudley,J.REX vs. SYKES (1913) 8 C.A.R. 233 which I adopt, were cited with approval. In the event, this appeal succeeds on whole. His conviction and sentence by the lower court arc hereby set aside by me. In their place, I enter an order discharge and acquittal in favour of the appellant.
AGBAJE J.C.A. (Presiding): I have had the opportunity of reading in draft the lead judgment just read from my learned brother Macaulay, .JCA. I agree with him that the appellant's appeal should succeed. I propose however to make the following short contribution of my own.
In the case in hand, there was no eye witness account as to the incident which gave rise to the death of the deceased, save that of the appellant as contained in the statement he made to the police and in his statement to the Court during his trial. The appellant in the statement to the Police which the trial Judge described as a confessional statement gave his version of what happened on the fateful day. Before us, counsel for the state conceded it and I agree with him that what the trial Judge regarded as confessional statement was not, in fact, a confessional statement in that, in the said statement, the appellant did not admit the guilt of the offence with which he was charged.
It is pertinent to note that the trial Judge himself noted that the appellant in his statement to the Police raised a pica of self-defence. This is what the trial Judge said in his judgment in this regard:
"The accused stated in exhibit 1 that in his effort to avoid any confrontation with the deceased, he took refuge in a house nearby and that when he later emerged from the house, the deceased was still around awaiting for him. The accused had a duty to take P.W.2 to the said house in confirmation of his story. In fact, he had a duty to call all inmate of the house as a witness or anyone who saw him going into the house. The standard of proof expected from an accused where the fact to be proved is one especially within his knowledge may not in my opinion he as high as that required of the prosecution to prove the guilt of the accused, but the explanation put forward by the accused must be a rational proof of that fact which is within his knowledge. In short, the onus of proving private defence is upon the second accused and proof, in my opinion, goes beyond mere expressions. Section 65 of the Penal Code law provides that the defence of private defence is available to an accused person who causes death while repelling an attack which causes him reasonable apprehension of death of grievous hurt. To be accused in the defence of private defence it is my view that an accused has to satisfy the court by credible evidence that he was put in reasonable apprehension of death or grievous hurt by the act of the deceased. (Italics mine)
In my view, it is it dear misdirection in law on the part of the learned trial Judge to say the burden is on the appellant to prove his plea of self-defence. Once the plea of self-defence is raised by, or available to an accused person, the onus is on the prosecution to negative the defence. See R. Vs Bone. 1968 2 AER 644. There is no onus on the appellant to substantiate the plea. The conclusion I reach therefore, is that the plea of self-defence which was properly raised by the appellant was wrongly rejected by the trial Judge because of the misdirection as to the burden of proof in this regard. On the material before the learned trial Judge. I cannot say that he would have come to the same conclusion if he had properly directed himself that the onus was on the prosecution to negative the defence.
This being so, I feel that I must uphold the plea for self defence properly raised by the appellant. Accordingly, I too allow the appellant's appeal, set aside his conviction and sentence by the learned trial Judge but in their place, enter an order for discharge, and acquittal.
JACKS, J.C.A.: I have read the judgment of my learned brother Macaulay JCA in draft form. There are contradictions and inconsistencies in the evidence adduced by the prosecution which renders the case for the prosecution unsatisfactory. See the judgment of the Supreme Court in ASUQUO WILLIAMS vs. THE STATE (1975) 5 ECSLR 576 at page 582.
Furthermore the learned trial Judge treated Exhibits 1 and (1A) as a confessional statement upon which he relied heavily. The truth is that exhibit 1 (and 1A -the English Translation) is not confessional to culpable homicide.
I am in agreement with the conclusions reached by my learned brother in his judgment. Accordingly the appeal succeeds. The conviction and sentences of the appellant is quashed. He is acquitted and discharged.
R. C. Nwaiwu Esq. -For the Appellant
I. A. Manganji Esq., S.S.C. Grade I, -for the Respondent.