When a child will be held to be competent witness and his/her evidence admissible

Umar V. State & Anor
 
CITATION: (2020) LPELR-50442 (CA)
 
In the Court of Appeal
In the Gombe Judicial Division
Holden at Gombe
 
ON TUESDAY, 28TH JULY, 2020
Suit No: CA/G/263/C/2019

The Appellant pleaded not guilty. In proof of the charge, the 1st Respondent adduced evidence through six witnesses and 10 Exhibits. In his defense, the Appellant also adduced evidence through six witnesses, himself inclusive. At the close of evidence and final addresses of Counsel for the respective parties, the learned trial Judge found the Appellant guilty as charged, convicted him, and sentenced him to death by hanging.
Dissatisfied, the Appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues:
1. Whether the failure of the High Court to evaluate the evidence adduced by the prosecution and defenses witnesses and making clear findings on the same did not breach the Appellant’s right to a fair hearing, thereby occasioning a miscarriage of justice against the Appellant.
 
2. Whether having regard to the totality of the evidence adduced by the prosecution before the trial Court, a case of criminal conspiracy and culpable homicide punishable with death was established against the Appellant to warrant his conviction. 

APPELLANT’S SUBMISSIONS
On issue 1, Counsel to the Appellant argued that the High Court in its Judgment failed to evaluate the evidence led and make clear findings on them, which omission/failure occasioned a miscarriage of justice. Citing Joseph V State (2011) 16 NWLR (Pt. 1273) 226, 242. Counsel argued that the trial Judge did not evaluate the evidence of the six witnesses called by the prosecution and the six witnesses who testified on behalf of the Appellant and the 2nd Respondent, as well as the Exhibits tendered. Instead, all it considered before arriving at the conclusion to convict the Appellant was the submissions of Counsel. Counsel argued that no matter how ingenious or brilliant the submission of Counsel is, it cannot substitute evidence citing Airtel Networks Ltd V George (2015) 4 NWLR (Pt. 1448) 60, 87.  Counsel further argued relying on; Ndukauba V Kolomo (2005) 4 NWLR (Pt. 915) 411 et al, that the failure of the High Court to evaluate evidence constituted a breach of the right to a fair hearing, therefore the conviction of the Appellant amounts to a nullity.

On issue 2, Counsel submitted that the 1st Respondent failed to prove the two-count charge against the Appellant. He submitted that the High Court relied on the sworn evidence of PW4, a child of 13 years old, and then used the confessional statement of the Appellant, the medical evidence and the evidence of five other witnesses as corroboration for PW4’s evidence. Relying on Section 209(1) of the Evidence Act, 2011 Counsel submitted that the evidence of PW4 is inadmissible, as she could not have given sworn evidence, either on oath or by affirmation. He submitted that the legal effect of non-compliance with this provision of law is not a mere irregularity that can be waived, but is a fundamental irregularity which renders her evidence worthless The cases of Sambo V State (1993) 6 NWLR (Pt. 300) 399, 419 and Siwobi V COP (1997) 1 NWLR (Pt. 482) 411, 425-426 were relied upon.

In addition, Counsel submitted that whereas the High Court held that the statements were admitted without objection, the Appellant raised an objection at the point of tendering Exhibits BA, BA2, BU and BU2 on the ground that the witnesses were not the makers. Therefore, the finding of the Court thereon showed a lack of understanding of the Appellant’s case, which misconception led the High Court to fail to apply the tests to the statements.

Counsel also submitted that since the Appellant retracted the confessional statement, the High Court ought to have applied the mandatory test to establish its veracity before it placed reliance on it to convict the Appellant. Citing Bako V State (2018) LPELR-44479 (CA).

RESPONDENT’S SUBMISSION
In response to issue 1, Counsel for the Respondent submitted that it is not enough for a party to merely allege that his right to a fair hearing was breached. He has a legal duty to show from the Record of the trial that the right was indeed breached in the course of proceedings. Counsel relied on Ejeka V State (2003) LPELR-1061 (SC) 13, A-D per Tobi, JSC; Tetrazzini Foods Ltd V Abbacon Inv. Ltd (2015) LPELR-25007 (CA) 45, A-E.

Counsel submitted that Judges differ in the procedure and style they adopt in the consideration of the evidence. That what is important is that a Judge should put the whole evidence of the parties on an imaginary scale, weigh them, and find out which is heavier by the quality and or probative value of the testimonies, as against the quantity or the number of witnesses. Then the Judge applies the law, if any before he comes to a final conclusion based on the accepted evidence. Citing Idakwo V Nigerian Army (2004) 2 NWLR (Pt. 857) 268; Jekpe V Alokwe (2001) LPELR-1604 (SC); Uchendu V Ogboni (1999) 5 NWLR (Pt. 603) 337, 363.

In response to issue 2, Counsel submitted that the High Court held that the confessional statements of the accused persons were voluntary, unequivocal, direct, and positive, and were admitted in evidence without objection. Counsel submitted that the fact that the confession was subsequently retracted is immaterial. See Oche V State (2007) 5 NWLR (Pt. 1027) 214, 235, A-C. Counsel also submitted that from the Record, all the necessary steps in R V Sykes (supra) were satisfied for the purpose of testing the veracity of Exhibits A2, A2 (S), BA, BU, and BU2. Consequently, the High Court was right when it convicted the Appellant.

On the submissions of the Appellant in respect of the evidence of a minor, PW4 Counsel submitted that a child could give sworn evidence when certain tests have been conducted on such a child. See Okon V State (1988) LPELR-2472 (SC). Counsel submitted that the trial Judge found PW4 a competent and reliable eyewitness. He submitted that Section 155(1) of the Evidence Act, 2011 empowers and supports such a witness and does not disqualify PW4’s already admitted evidence. Even though independent corroborative evidence is needed in admitting the evidence of a child, it does not render such evidence inadmissible.

RESOLUTION OF THE ISSUES
Resolving issue 1, the Court stated the position of the law that judgment writing is a matter of style and every Judge is entitled to write in the way that best suits him. What is important is that a just conclusion is arrived at from a proper consideration of the facts presented, a logical reasoning, and a proper application of the applicable law. The Court then considered the record of appeal and came to the conclusion that the High Court made specific findings of facts in respect of the death of the deceased and the acts of the Appellant, which cumulatively with the acts of the other persons, led to the death of the deceased. The trial Judge thereafter proceeded to apply the facts before it to the case. After that, the trial Judge considered and evaluated the evidence of the Appellant and the defense witnesses. The Court held that from the foregoing the High Court, therefore, evaluated the evidence before it.

On failure of the trial Judge to state expressly that he had considered the evidence adduced, the Court held that while it may be the general practice for Judges to state expressly that the evidence was considered before they go on to actually consider the evidence, where such a statement is omitted but the trial Judge actually proceeds to embark upon a consideration of the evidence as well as the submissions of Counsel, it is not fatal to the judgment unless the Appellant shows that a miscarriage of justice is occasioned thereby.

On the allegation of breach of his right to a fair hearing, the Court held that the Appellant failed to show how his right to a fair hearing under Section 36(1) of the 1999 Constitution was breached. 

On issue 2, the Court held that although Section 209(1) of the Evidence Act, 2011 stipulates that a child under the age of 14 shall not give sworn testimony, that the administration of affirmation on PW4, a child of 13 years did not, without more, render the evidence worthless. The Court considered it a mere irregularity. This is because even though PW4 was under the age of 14, the trial judge considered her as a person of sound mind that understood the import and implication of testifying on oath. Furthermore, the Appellant was well represented by Counsel at the High Court and yet he raised no objection to the administration of the affirmation on PW4.

On corroboration of PW4’s evidence, the Court held that the Confessional statement of the Appellant was sufficient corroboration of PW4’s statement. On the Appellant’s retraction of his confessional statement, the Court held that the retraction of a confessional statement does not render the same inadmissible.

On the contention of the Appellant that the prosecution failed to prove the ingredients of the offences charged, the Court stated the position of the law that a person is guilty of culpable homicide punishable with death if it is proved that a human being died, the death was caused by the accused person and that the accused person intentionally carried out the act intending to cause death or he knew that death would be the probable result of his action or that he intended to cause grievous hurt which ultimately led to the death of the deceased. That the Prosecution can prove the guilt of the accused by a confessional statement, direct evidence being evidence from eyewitnesses, and/or indirect evidence being circumstantial evidence. Citing Archibong V State (2006) 14 NWLR (Pt. 1000) 349 and Igabele V State (2006) 6 NWLR (Pt. 975) 103.

Applying the above to the instant case, the Court held that the Prosecution proved the guilt of the accused through a confessional, which though retracted, was free and voluntary. The eyewitness evidence of PW4 as well as the evidence of other prosecution witnesses also corroborated the confessional statement.

The post mortem report Exhibit MU, also served to corroborate the confession of the Appellant. Based on the foregoing, the Court held that the retracted confessional statement of the Appellant, which can ground a conviction even without corroboration, was sufficiently corroborated and thus the High Court was entitled to convict the Appellant based on it. Citing Theophilus V State (1996) 1 SCNJ 79.

HELD
In conclusion, the Court resolved both issues for determination against the appellant and dismissed the appeal.
Appearances
Adedayo Adesina, Esq., with him, T.J.J. Danjuma, Esq.            
For Appellant
Abdussalam Muhammad, Esq.,
Acting Director of Public Prosecution (ADPP)
Gombe State Ministry of Justice, with him,                                       
For 1st Respondent
Alheri Yoriyo, Esq., Assistant Director (AD)
And M.S. Hassan, Principal State Counsel (PSC)   
Compiled by Lawpavilion