Supreme Court cannot interfere with concurrent finding of lower courts unless appellant shows sufficient reasons (2)

SC. 241/2013
THE STATE…………………………………………………. RESPONDENT

Scholars have seldom disagreed with judicial authorities on this question, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, 2009) 209 et seq; A. G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan; Spectrum Books Ltd, 1988) passim; Archbold’s Pleadings:

Evidence and Practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passim; K. S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); P. Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq.1 Both the trial court (Page 89 of the record) and the lower court (Pages 10-13 of the record), concurrently, found in favour of the proof of these ingredients. As such, in this further appeal, the Appellant has an onerous duty to discharge. As it is well-known, this court will not disturb concurrent findings of fact of lower courts unless the Appellant is able to fulfill the following pre-conditions: establish a substantial error apparent on the face of the record of proceedings; show that such findings of fact were perverse; the said findings were unsupported by the evidence before the trial court; that the findings and conclusion were arrived at as a result of a wrong approach to the evidence or a wrong application of the principles of substantive law or procedure, Enang v. Adu (1981) 11-12 S.C. (Reprint) 25, 42; Nwadike v Ibekwe (1987) 12 S.C. (Reprint) 12.

The question now is whether the Appellant has shown sufficient reasons why this court should interfere with the said concurrent findings of the lower court and the trial court? In the first place, counsel for the Appellant cited Page 123 of the record. There, the Appellant, testifying in his evidence – in-chief, for the first time purported to raise the defence of alibi. Counsel, then, contended that the said testimony is “cogent and consistent with the denial of the alleged confessional statement.” In the course of this judgment, I shall return to the probative value (if any) of the said defence of alibi which the Appellant raised for the first time during his defence at the trial court. Suffice to observe for now that a retraction or denial of a confessional statement (as the Appellant did during his defence at the trial court) does not affect its admissibility. This has long been settled in the very old cases of R. v. Sapele and Anor. (1952) 2 FSC 74; Essentially, both the trial court and the lower court placed reliance, inter alia, on exhibits Fl; F2 and G, the Appellant’s confessional statements, (and circumstantial evidence exemplified, In the said confessional statement, the Appellant gave a picturesque description of his gory and dastardly sequence of acts that dispatched the deceased to his untimely death. From the Appellant’s own vivid; direct; positive and cogent account, both the trial court and the lower court had no difficulty in resolving the first two ingredients in favour of the Prosecution, that is, the fact of the death of the deceased (Abdullahi Bala Getso) and the fact that the Appellant’s gruesome act of hitting the late Abdullahi Bala Getso with an iron rod several times on his head and stomach caused the death of the said deceased person. The trial court found abundant evidence from the Prosecution’s case that corroborated these vivid descriptions of the unholy actions of the Appellant which occasioned the death of the deceased person.

Against this background, Abiru, JCA., who read the leading judgment of the lower court, did not entertain any doubt that the confession of the Appellant, apart from being cogent, direct and compelling, scaled the threshold test
enunciated in case law for ascertaining the truth of confessions. Little wonder then why His Lordship opined that the said confessions (evidenced in the said Exhibits Fl; F2 and G) would not just morph into pieces of inadmissible evidence because the Appellant (as Accused person) denied having made them; retracted them or resiled from them, see 197 of the record. I, entirely, endorse the approach of the lower court on this issue. I note that a confession contained in a statement, such as exhibits F1; F2 and G (supra), is not to be treated differently from any other confession. From our reading of Pages 147 -148 of the record, I am satisfied that trial court factored in all the tests laid down in R v. Kanu (1952) 14 WACA 30. From Pages 196 -197 of the record, I find clear evidence of the lower court’s application and consideration of the principles which should be considered in determining whether or not to believe and act on a confession or confessions which an Accused person resiled from as enunciated in R. v. Sykes (1913) 8 C. A. R. 233, 236; Kanu v. The King (1952) 14 WACA 30; The Queen v. Obiasa (1962) 1 All NLR 651; (1962) 1 S.C.NLR 137; Obosi v. The State (1965) NMLR 129; Onochie and Ors. v. The Republic (1966) NMLR 307;

These are: whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established, Osetola and Anor. v. The State (2012) 6 S.C. (Pt. IV) 148; Kareem v. FRN (2002) 4 S.C. (Pt. II) 42; Akpan v. The State (2001) 7 S.C. (Pt. II) 29.

This court cannot, therefore, interfere with the concurrent findings of the lower courts on the first two ingredients of the offence in question having regard to the cogency of the confessions and the other circumstances (which we had set out above) which corroborate them. We, therefore, endorse the conclusion that the Prosecution proved the first two ingredients of the said offence. I agree with the lower courts that the Prosecution proved that the deceased died. It also, proved that, in actual fact, the deceased died as a result of the act of the Accused person, to the exclusion of all other possibilities, As indicated earlier in this judgment, the third ingredient of the offence under consideration is that the Prosecution must prove that the Accused person intended to either kill the victim or cause him grievous bodily harm, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (supra); Maigari v. State (supra); Again, from my reading of Pages 199- 200 of the record, I find that the lower court, admirably, dealtwith this requirement. Listen to Abiru JCA, who read the leading judgment of the lower court: The third requirement of the offence of culpable homicide punishable with death iswhether the Appellant caused the death of the deceased (person) intentionally or with knowledge that death or grievous bodily harm was its probable consequence… In order to determine whether the defendant really had an intention to murder, the law has set downsome criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is, a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of the proximity of the victim with the lethal weapon used by the Accused (person), citing Iden v. State (1994) 8 NWLR (Pt. 365) 719…In the instant case, the Appellant confessed in exhibits Fl and F2 that the Appellant was hit on the head several times with an iron rod until he died. This was an exhibition of a clear intention on the part of the Appellant and his alleged cohorts to causethe death of the deceased.

(Pages 199-200 of the record) I now return to the Appellant’s so-called defence of alibi. At Page 5 of his brief, counsel claimed that “the Appellant raised a complete defence of alibi in his evidencein- chief of not being in Kaduna at the relevant time and this alibi was creditably supported and corroborated by the evidence of P.W.3 and P.W.4 during further crossexamination by the Prosecution,” citing P ages 118-119 of the record, (italics supplied for emphasis).

With respect, this is a very curious submission. In our accusatorial jurisprudence, the defence of alibi falls into the genre known as exculpatory defences, Udoeberov. State (2001) 6 S.C. 1; others include: self defence, Uwaekweghinya v. The State (2005) 3-4 S.C. 29 and accident, Bakare v. State (1987) 3 S.C. (Reprint) 1. They are exculpatory defences because where they are established in a criminal trial, they exonerate the Accused person, Uwaekweghinya v. The State (supra). From the italicised portion of the above submission, it is evident that even the learned counsel for the Appellant entertained no doubt that the Appellant only trumped up his so-called defence of alibi during his evidence-in-chief. Even then, he proceeded to categorise it as “a complete defence.” This cannot be.

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