shelawzs: 05/17/16

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This is an appeal against the judgment of the Court of Appeal, Abuja Division wherein the court below upheld the judgment of the Kogi State High Court sitting at Lokoja in which the appellant was convicted and sentenced to death for the offence f culpable homicide punishable under section 221 (b) of the Penal Code.
The record of appeal shows that the Appellant was arraigned on a single count charge of culpable homicide punishable with death contrary to section 221 (b) of the Penal Code, Laws pf Northern Nigeria. The prosecution called a total of th1ee witnesses who gave evidence of the death of one Abubakar Mohammed. In the course of the trial, the prosecution witnesses tendered four negatives and four pictures of the deceased’s corpse and same were admitted in evidence as exhibits A1 - A4 and B1 - B4 respectively. A post mortem examination was conducted on the deceased and the result of the autopsy was admitted in evidence as Exhibit BB
The appellant made two confessional statements. Exhibits C and D are the said confessional statements the appellant made at B Division Police Station, Lokoja and State CID Lokoja respectively. Exhibit E is a gun used to commit the offence while Exhibits F and G are a blood stained cap and a pair of scissors respectively.
It is the case of the respondent (Prosecution) that the appellant committed the offence with which he was charged at the trial court. The appellant admitted in both Exhibits C and D that he shot the deceased with a gun which led to his death. Exhibit D as subjected to trial within trial after which the learned trial judge held that it was voluntarily made. There is no a peal against the aforementioned ruling of the learned trial judge.

On the other hand, the appellant simply denied committing the offence in the course of his evidence before the trial High Court. He narrated that he has a farm land where he planted cassava and yam. He said that a Fulani man came to his farm on 27/2/2009. He further stated that he accosted the Fulani man within the vicinity of his farm. About 6pm of the same date, he became aware of the death of the deceased.
As I stated earlier, the trial court convicted and sentenced the appellant to death under section 221(b) of the Penal Code. An appeal to the lower court was dismissed. The Court of Appeal held that the trial was right in convicting the Appellant on the strength of his confessional statements and that the respondent had proved the ingredients of the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code. Against the decision of the court below, the appellant has further appealed to is court.

On 24th April, 012, the appellant filed his notice of appeal containing for grounds of appeal. Three issues have been formulated from the four grounds of appeal. The issues
are:
Whether the Court of Appeal was correct in holding that the trial courtas right in convicting the Appellant on the strength of’ his confessional statement.
Whether the learned Justices of the Court of Appeal were right in coming to the conclusion that it is obvious from the evidence b ore the trial court that the Appellant intentionally killed the deceased.
At this stage, I must state clearly that although it is desirable to have outside an accused person’s confession to the police some evidence, no matter how slight of the circumstances which make it probable that the confession was true, a voluntary confession of guilt, if true, consistent and probable, and is coupled with a clear proof that a crime has been committed by some persons, is usually accepted as satisfactory evidence on which the court can convict. See Ogoala The State (1991) 2 NWLR (pt 175) 509.
In the instant case, the prosecution, through PW1, PW2 and PW3 succinctly testified before the trial court that the deceased person was dead. It also tendered exhibits Al A4, B1 - B4 and B to confirm the death of the deceased person. Apart from that, the prosecution had tendered Exhibits C and D,’ the confessional statements of the appellant which were adequately tested by the learned trial judge in a trial within trial. There is no appeal against the ruling of the trial court on the trial within trial. Thus, the appellant had accepted the decision of the trial court that the confessional statement was freely and voluntarily made by him. I had earlier stated that a confessional statement tendered in evidence is part of the evidence of the prosecution. See Ikemson v The State (supra).
In Exhibit D, the appellant states clearly what happened before the deceased died. Hear him:
“I aim him with my dane gun and fired him on the chest. Bu he still pursued me with the bullet wound until he fell down and could not rise again. I ran to the village and reported to the village Head one Solomon Ballo “M” of Oyo - wavillage via, Lokoja LGA. The Chief attached one Garba Mohammed to go and check the farm with me. And he reported the same thing to him and the chief ordered that I should be taken to the police station.
On page 43 of the record of appeal particularly line 28, the appellant testified in court that he went back to the farm with Mohammed. This piece of evidence is consistent with his confessional statement in exhibit D. it is a piece of evidence outside the confessional statement which corroborates same. So, apart from the evidence of PW1, PW2 and PW3 including the exhibits listed earlier in this judgment appellant’s evidence in court which is consistent with his confessional statement clearly strengthens and makes the statement most probable. All the issues raised by the learned counsel for the appellant against the statements are issues which were or ought to have been raised during the trial within trial.
Although there was no eye witness when the appellant shot the deceased, the prosecution gave evidence through the PWs which gave vent to the confession of the appellant. And in any case, this court held in Mohammed v State (2007) 11 NWLR (pt1045) 303 at 230 paragraph F that where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone. See also Oche v State (2007) 5 NWLR (pt1027) 219.
For all I have said above, I hold a strong view that the court below was on a strong wicket when it upheld the conviction and sentence of the appellant upon reliance on his confessional statements. Accordingly, I resolve this issue against the appellant.

Although the learned counsel for the appellant in paragraph 5.01 of his brief states that he would argue issues 2 and 3 together, he reneged and argued them separately: The second issues is whether the learned Justices of the Court of Appeal were right in coming to the conclusion that it is obvious from the evidence before the trial court that the appellant intentionally killed the deceased. It is the submission of the learned counsel that the lower court was in error when it held that the appellant intentionally killed the deceased. According to the learned counsel for the appellant the prosecution failed to prove the essential ingredients of the offence of murder a enunciated in the cases of Basil Akpa vs The State (2008) 14 NWLR (pt) 72 at 90, Tunde Adera&anor vs The State (2006) 2 SCN} 255 at 266 - 267, Godwin Idebele vs The State (2006) 2 SCNJ 124 at 133 134 and Isah vs The State (2007) 12 NWLR (1049) 582 at 602 - 604. He opined that the evidence of PW1 - PW3 cannot sustain the essential ingredients of the charge against the appellant.
Learned counsel further submitted that contrary to the finding of the two lower courts, there is no oral or documentary evidence proffered by the prosecution pointing irresistibly, conclusively and compellingly that it was the appellant whointentionally killed the deceased. That there was contradiction in the evidence of PW1 and PW2 in relation to the ownership, recovery and use of the gun i.e. Exhibit E. Therefore, it is unsafe to rely on exhibits C and Dto hold that he appellant used exhibit E. It was his view that the only evidence against the appellant is that found in Exhibits C and D which he opines was wrongly relied upon. He urged the court to resolve this issue in favour of the appellant.
In response, the learned counsel for the respondent submitted that from Exhibits C and D, it is obvious that the appellant intentionally killed the deceased. That when the appellant aimed the gun at the chest of the deceased and shot it, he intended the natural consequence of his action, relying on the cases of Garbav State (2000) 4 SC (pt11) 157 at 163, The State vs Oludamilola(2002) NNLR 582 at 589, Ibikunlevs State (2007) 2 NWLR (pt1019) 555.
On the contention that it was not proved that the appellant used exhibit E - the gun, learned counsel submitted that the answer is found in Exhibit D the confessional statement of the appellant and the gun subsequently recovered from him. Moreso, in view of the fact that the appellant stated that after he shot the deceased, he fell down and did not wake up again, there was no need for medical evidence, referring to Sunday Ihuebekavs State (2000) 4 SC (pt 1) 203 at 212, Oforlete vs State (2000) 7 SC (pt 1) 810 at 96.
As regards issue of contradiction, learned counsel urged the court to hold that there was no such thing as none exists. Also, an accused person need not personally own a gun before he can use it to commit a crime. On the whole, learned counsel urged the court to resolve this issue against the appellant.
It is an elementary proposition of the criminal law that every person is taken to intend the natural and probable consequences of his or her act. And, the consequence of an act may be said to be probable, if a reasonable man would consider its occurrence to be the natural and normal effect of the act. See Shazalivs State (1988) 12 SC (pt 11) 58, (1988) NWLR (pt 931) 164, R v Dim 14 WACA 154 at 155;
, ,
Yakubu vs The State (1980) 3 - 4 SC 84 at 98, Atani vs R (1955) 15 WACA 34. But, what is intention? The Black’s Law Dictionary, Ninth Edition by Bryan A Garner, page 883 defines intention as follows:
“The willingness to bring about something planned or foreseen; the state of being set to do something.”
Also, John Salmond, if his book Jurisprudence, 378 (Glanville L. Williams ed, 10th edition (1947) reproduced in The Law Dictionary first alluded to above, defines intention thus:
“Intention is the purpose or design with which an act is done. It is the foreknowledge of the act coupled with the desire of it, such foreknowledge and desire being the cause of the act, inasmuch as they fulfill themselves through the operation of the will. An act is intentional if, and in so far as, it exists in idea in the fact because of the desire by which it is accompanied.”
Another learned author, P. H. Winfield, in his book A Textbook of the Law of Torts P.19 (5th Edition. 1950) also defines intention in the following words. “This signifies full advertence in the mind of the defendant to his conduct, which is in question, and to its consequences, together with a desire for those consequences.” From the above definitions, it seems to me that in an offence of murder, intention, which is not tangible, can be inferred from the instrument used to commit the crime, the force used and the part of the body on which the injury was inflicted. Also, the force with which the accused applied with the instrument on the deceased is also to be taken into consideration. See Orisakwe v The State (2004) 12 NWLR (pt887) 258, Queen v Moses Onoro(1961) 1 All NLR (pt1) 33, Ejelikwe v State (1993) 7 NWLR (pt307) 554, Nwokearu v State (2013) 4 - 5 SC (pt iv) 95 at 122 paras 25 - 30.
In the instant case, the appellant states emphatically in Exhibit D adjudged to have been freely and voluntarily made that he aimed his gun at the chest of the deceased at close range and shot him. It was his further evidence that the deceased fell down and could not move again. At that point, he ran to the village Head and reported that he had killed a man. In the circumstance, did he intend to kill the man? I had earlier stated in this judgment that a person is taken to intend the natural and probable consequences of his act. So, when the appellant aimed his gun at the chest of the deceased and shot it, did he intend to keep him alive? L do not think so. At least he intended to cause him grievous bodily harm. And in view of the force of a gunshot aimed at the heart, the engine room of a man’s life, it can safely be concluded that the appellant intended to kill the deceased by his action, the report he made to the village head notwithstanding. Had the appellant shot the deceased on the leg, maybe, just maybe, one would have thought otherwise. At the age of the appellant, he ought to have known that the part of the body of the deceased he aimed at (the heart) was the last that could have entered his mind if he had intended the man to stay alive. I agree with the lower court that the appellant intentionally shot and killed the deceased. All the arguments of the learned counsel for the appellant which had nothing to do with whether or not the killing was intentional, are of no moment. They are discountenanced. This issue is accordingly resolved against the appellant.
Having resolved the two issues against the appellant, all that remains to be said is that this appeal is devoid of any scintilla of merit and deserves an order of dismissal. Appeal is accordingly dismissed. The judgment of the Court of Appeal delivered or 22nd day of March, 2012 which upheld the conviction and sentence of the appellant to death, is hereby affirmed.
Appeal dismissed.
JOHN INYANG OKORO JUSTICE, SUPREME COURT COUNSEL:
J. A. Akubo Esq. with G. S Omagbogu Esq. Jacob Ajayi Esq. and Ngozi Okoh (Miss) for the appellant.
B. A. Alfa (Mrs) - DPP Kogi State, with H. E. Yusufu (Mrs) DDPP and D. E. Abu Esq. Snr. Legal Qfficer, for the respondent.
- See more at: http://www.nigeriabar.com/2016/05/court-can-convict-on-voluntary-confession-ndash-sc/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+NigeriaBar+%28Nigerian+Bar%29#sthash.3CSQKgyp.dpuf

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Tuesday, 17 May 2016

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