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

By Editor
26 October 2015   |   11:00 pm
IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA ON FRIDAY, THE 27TH DAY OF FEBRUARY, 2015 BEFORE THEIR LORDSHIPS SULEIMAN GALADIMA……………….. JUSTICE, SUPREME COURT M.U. PETER-ODILI…………………….. JUSTICE, SUPREME COURT OLUKAYODE ARIWOOLA…………….. JUSTICE, SUPREME COURT JOHN INYANG OKORO………………… JUSTICE, SUPREME COURT CHIMA CENTUS NWEZE ………………..JUSTICE, SUPREME COURT SC. 241/2013 BETWEEN: TAJUDEEN ILIYASU .............................................APPELLANT AND THE…

law11IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY, THE 27TH DAY OF FEBRUARY, 2015
BEFORE THEIR LORDSHIPS

SULEIMAN GALADIMA……………….. JUSTICE, SUPREME COURT
M.U. PETER-ODILI……………………..
JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA…………….. JUSTICE, SUPREME COURT
JOHN INYANG OKORO………………… JUSTICE, SUPREME COURT
CHIMA CENTUS NWEZE ………………..JUSTICE, SUPREME COURT
SC. 241/2013
BETWEEN:
TAJUDEEN ILIYASU ………………………………………APPELLANT
AND
THE STATE…………………………………………………. RESPONDENT

As it well know, the Supreme Court will not disturb concurrent findings of facts of lower courts unless the Appellant is able to fulfill the following Pre-condition: establish a substantial error apparent on the face of the record of proceedings; show that such findings of facts 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 wrong application of the principles of substantive law or procedure.

So held the Supreme Court Holden at Abuja in a unanimous leading judgment delivered by his lordship C.C. Nweze JSC with his learned Brothers Suleiman Galadima, M.U. Peter – Odili, Olukayode Ariwola and John Iyang Okoro JJSC concurring while allowing the appeal.

The parties were represented by J.M.M Majiyegbe and C.C Okonkwo for the Appellant, Kehinde Ogunwumiju, Ademola Abimbola and Bridget Emengo for the Respondent.

JUDGMENT
At the High Court of Kaduna State, the Appellant in this appeal (as second Accused person) and one Kabiru Muhammad (as first Accused person) were charged with the offences of conspiracy under Section 97 and culpable homicide punishable with death under 221 of the Penal Code. At the said high court (hereinafter referred to as the “trial court”), they pleaded not guilty to the two counts. In proof of its case, the Prosecution called eleven witnesses and tendered nine exhibits. On his part, the Appellant (as second Accused person) testified in his defence. He did not call any other witness. At the conclusion of the trial, the trial court (Coram Othman J), in its judgment of July 18, 2011, first, discharged and acquitted both Accused persons on the count of conspiracy; it, equally, discharged and acquitted the first Accused person (Kabiru Mohammad) on the second count of culpable homicide punishable with death. The Appellant was unlucky as the trial court found him guilty, convicted and sentenced him to death by hanging.

He was, naturally, aggrieved by the outcome of the criminal trial against him, hence, his appeal to the Court of Appeal, Kaduna Division, (hereinafter, simply, referred to as “the lower court”). In its judgment of March 22, 2013, the lower court, (as per the leading judgment of Abiru, JCA), dismissed the Appellant’s appeal. This further appeal is the Appellant’s persistent quest for justice. He formulated two issues from his three grounds of appeal. They were framed thus:

(1) Whether the Court of Appeal was right when it dismissed the Appellant’s appeal on the ground that the Prosecution had proved its case against the Appellant beyond reasonable doubt to sustain the charge of culpable homicide against the Appellant?

(2) Whether the Court of Appeal was right to have sustained the conviction of the Appellant on circumstantial evidence?

On its part, the Respondent formulated a lone issue couched in these terms:

Whether or not the lower court’s decision to affirm the trial court’s conviction of the Appellant for culpable homicide was right having regard to the circumstantial evidence available and the Appellant’s confessional statement? We shall, therefore, adopt this sole issue in the determination of this appeal. For the avoidance of doubt, therefore, the issue for the determination of this appeal is:

Whether or not the lower court’s decision to affirm the trial court’s conviction of the Appellant for culpable homicide was right having regard to the circumstantial evidence available and the Appellant’s confessional statement?

ARGUMENTS OF COUNSEL
Appellant’s Contention Counsel contended that exhibits Fl, F2 and G, the Appellant’s confessional statements, were fraught with many irregularities. Citing Page 123 of the record, he pointed out that the Appellant’s evidence was consistent with his denial and retraction of the exhibits. He noted that the Prosecution did not cross-examine him on these facts and, in his view, must be deemed to have admitted their truth. He cited the Court of Appeal’s decision in: FBN Plc v. Onkuga (2005) 16 NWLR (Pt. 950) 120 and this court’s decisions in Oforlete v. State (2000) 7 S.C. (Pt. I) 80; Abadom v. State (1997) 1 NWLR (Pt. 479) 1, 20. He maintained that the Prosecution failed to cross-examine the Appellant on his evidence that he did not commit the offence. He further observed that the Appellant raised a defence of alibi. According to him, this defence was supported and corroborated by the testimonies of P.W.3 and P.W.4, citing Pages 118 -119 of the record. He turned to what he referred to as “serious conflict” between the testimonies of P.W.3 and P.W.4 and the Appellant’s confessional statements. He urged the court to resolve the conflicts in favour of the Appellant, Bozin v. State (1985) 5 S.C. (Reprint) 106; Okonji v. State (1987) 3 S.C. (Reprint) 113. Counsel canvassed the view that the lower court should have discountenanced the testimonies of P.W.3 and P.W.4 for being inconsistent. He maintained that the doubt created by the inconsistencies in the testimonies of P.W.1; P.W.2; P.W.3 and P.W.4 should be resolved in favour of the Appellant, The State v. Sadu (2001) 15 NWLR (Pt. 735) 102, 112; Oluma v. Onyuna (1996) 4 NWLR (Pt. 443) 449, 457 C.A. Emboldened by the above submissions, he maintained that the trial court erred when it failed to consider the defence of alibi:

The lower court, in his view, fell into the same error. For his proposition that a court has a duty to consider all the defences available to an Accused person, he cited: Oforlete v. State (supra); Attah v. State (2010) 10 NWLR (Pt. 1201) 190, 221 Citing Mohammed v. State (2007) 3 S.C. (Pt. I) 47, he took the view that the circumstantial evidence used in convicting the Appellant does not meet the requirements of the law. He urged the court to reverse the concurrent findings of the trial and lower courts on the ground that they failed to narrowly examine with utmost care, the circumstantial evidence used in convicting the Appellant, Shehu v. State (2010) 2-3 S.C. (Pt. I) 158. He urged the court to allow the appeal and discharge and acquit the Appellant, Adamu v. State (1991) 6 S.C.17. Respondent’s Submission In his well-articulated brief, he broached the settled position that, where a confessional statement contains a direct and unambiguous admission of all ingredients of the offence charged, an Accused person can be convicted on it (such a confessional statement) alone, citing: Akpa v. State (2008) 4-5 S.C. (Pt. II) I; Milla v. State (1985) 3 NWLR (Pt. 11) 190 C.A.; He re-iterated the ingredients of the offence of culpable homicide punishable with death, as adumbrated in Haruna v. A. G., Federation (2012) 3 S.C. (Pt. IV) 40 and Ali v. State (2012) 7 NWLR (Pt. 1299) 209 C.A. Drawing attention to pages 105 and 113 of the record, where exhibits Fl; F2 and G were admitted as confessional statements, he submitted that these confessional statements were direct, cogent and positive enough to ground the Appellant’s conviction as he, clearly, admitted the existence of the said ingredients of the offence charged. He maintained that these statements scaled the threshold tests which case law outlined for the admission of confessions, Akpan v. State (1992) 6 NWLR (Pt. 248) 438; Alarape v. State (2001) 2 S.C. 114. He further, contended that the circumstantial evidence on record, being cogent and compelling, pointed conclusively to the fact that the Appellant killed the deceased person, Akinbisade v. State (2006) 9 S.C. 118; He urged the court to discountenance the Appellant’s defence of alibi for two main reasons. He pointed out that the said defence was not raised at the earliest opportunity, Akpan v. State (2002) 5 S.C. (Pt. II) 110; Ndukwe v. State (2009) 2-3 S.C. (Pt. II) 35. He, equally, pointed out that, at least, three witnesses gave evidence fixing him to Rigasa, Kaduna, on September 30, 2003, when the death of the deceased person occurred, Peter v. State (1997) 3 NWLR (Pt. 496) 625, 642. He turned to the Appellant’s contention relating to the inconsistencies in the testimonies of P.W.3 and P.W.4. He relied on Madumere v. Okafor (supra) as authority for the view that, since the said argument does not flow from his grounds of appeal, they ought to be discountenanced. In all, he urged the court to dismiss the appeal and affirm the judgment of the lower court.

RESOLUTION OF THE ISSUE
As indicated at the outset, the Appellant was tried, found guilty, convicted and sentenced to death by hanging for the offence of culpable homicide punishable with death by the trial court. The charge was laid under Section 221 of the Penal Code. The three constitutive elements or ingredients of the offence which must be proved in order to secure a conviction under this section have been, generously, outlined in case law, Maigari v. State (2013) 7 S.C. (Pt. V) 1, citing Ochemaje v. The State (2008) 6-7 S.C. (Pt. II) 1; Daniel v. The State (1991) 8 NWLR (Pt. 188) 715 C.A; Obade v. State (1999) 6 NWLR (Pt. 1980) 433 C.A; Gira v. State (1996) 4 NWLR (Pt. 428) 1, 125. Under the said section, the Prosecution is obliged to prove: (1) that the deceased died; (2) that his/her death was caused by the Accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. These ingredients, which are the same with the ingredients of the offence of murder under the Criminal Code, have witnessed consistent espousal in many jurisdictions, for example, by English courts, R v. Hopwood (1913) 8 Cr. App. R. 143; Hyam v. DPP (1974) 2 All ER 41; Woolmington v. DPP (1935) AC 462; by Nigerian courts, Madu v. State (2012) 6 S.C. (Pt. I) 80, citing Durwode v. State (2000) 12 S.C. (Pt. I) 1; Idemudia v. State (1999) 5 S.C. (Pt. II) 110; Akpan v. State (2001) 7 S.C. (Pt. II) 29 and by courts in other Commonwealth jurisdictions, see, for example, R. v. Nichols (1958) QWR 46; R v. Hughes (1958) 84 CLR 170; Timbu Kolian v. The Queen (1968) 42 A. L.J.R.R. v. Tralka (1965) Qd. R. 225, (Queensland, Australia).

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