ADIO v. STATE

CITATION: (2018) LPELR-45720(CA)

In the Court of AppealIn the Abuja Judicial Division

Holden at Abuja

ON FRIDAY, 2ND MARCH, 2018Suit No: CA/A/263C1/2013

Before Their Lordships:

TINUADE AKOMOLAFE-WILSON Justice, Court of AppealPETER OLABISI IGE Justice, Court of AppealEMMANUEL AKOMAYE AGIM Justice, Court of Appeal

BetweenAMINU ADIO (A.K.A. OJUKWU) - Appellant(s)

AndTHE STATE - Respondent(s)

RATIO DECIDENDI

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1. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH: Ingredients thatmust be proved to establish the offence of culpable homicide punishable with death; ways of proving it"...In effect all the elements of an offence including that of Culpable Homicide punishable with death can be proved orestablished by direct or circumstantial evidence. It can also be proved by the confessional statement of the Accused or theDefendant. See:-1. OKON ETIM AKPAN V THE STATE (2016) 8 SCM 1 AT 7 F -G per PETER-ODILI, JSC who said:-"In reiteration of what is now trite to establish the culpability of an accused in proof of a crime, anyone of the following meansis acceptable, that is: -Direct evidence also known as evidence of eye-witness or witnesses;Confessional statement of the accused person; Circumstantial evidence. See Emeka v State (2002) 32 WRN 37 or (2006) 6SCNJ 259."What then are the ingredients of the offence of culpable homicide punishable under Section 221 (a) of the Penal Code Law. Bythe said Section of the Penal Code Law, an offence of Culpable Homicide punishable with death is committed when a persondoes an act with the intention of causing death or grievous bodily injury which is likely to cause the death of another humanbeing and which to his knowledge may result in grievous bodily harm or death and yet embark on the dastardly act. I can dono better than to draw strength from decisions of the apex Court in the land. Suffice to refer to the cases of:-1. IREGU EJIMA HASSAN VS THE STATE (2017) 5 NWLR (PART 1557) 1 AT 33 G-H TO 34A - b per RHODES-VIVOUR, JSC whosaid:-"Culpable homicide is defined in Section 220 of the Penal Code.It reads:"220. Whoever causes death-(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or(b) by doing an act with the knowledge that he is likely by such act to cause death, or(c) by doing such a rash or negligent act, commits the offence of culpable homicide.In Smart v. State (2016) 1-2 SC (Pt. II) p. 41, (2016) 9 NWLR (Pt. 1518) 447 at page 479-480, paras H -A, I explained proofbeyond reasonable doubt thus:"Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishingthe guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with ahigh degree of probability." To succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecutionmust prove the following beyond reasonable doubt(a) that the person the accused person is charged of killing actually died;b) that the deceased died as a result of the act of the accused person:c) that the act of the accused person was intentional and he knew that death or body harm was ifs likely consequence.See State v. John (2013)1 NWLR (Pt. 1368) p. 377.2. SHUAIBU ABDU Vs THE STATE (2017) 7 NWLR (PART 1564)171 AT 186 D - E per SANUSI, JSC who said:-"The charge the accused/appellant stood trial on is culpable homicide punishable with death, contrary to Section 221(b) of thePenal Code. The ingredients of the offence that of necessity, must be proved by the prosecution in order to obtain convictionare: -(a) That death of a human being was caused:(b) That such death was caused by the accused Person.(c) That the act that led to the death of the victim was intended to cause death or grievous hurt or that the accused knew orhad reason to believe that by his action, death will be the probable and not only likely consequence of his."I am of the firm view that the pieces of evidence given by the two prosecution witnesses who are Police Officers activelyinvolved in the arrest of the Appellant and investigation of the offence of culpable homicide which the Appellant was chargedsufficiently linked the Appellant with the high involvement of the Appellant in the shooting and killing of the deceased."Per IGE,J.C.A. (Pp. 55-58, Paras. A-B) - read in context

2. EVIDENCE - CONFESSIONAL STATEMENT: When is the proper time to raise an objection to the admissibility of aconfessional statement"The settled position of the law is that the appropriate time to challenge the admissibility of a statement projected asconfessional statement of an Accused on ground of involuntariness, inadmissibility or any other vices or inadequacy that maybe afflicting such statement is at the time and point when the prosecutor seeks to tender the statement or document inevidence and not at Appellate Court. See:-1. JOSEPH UBI V. THE STATE (2012) 16 NWLR (PART 1327) 522 at 545 E per CHUKWUMA ENEH, JSC who said:-"The objection to a confession is required to be raised at the tendering of the confessional statement. This is ordinarily soduring presenting of the prosecution's case at the main trial." (sic).2. F.R.N. VS. FAITH IWEKA (2011) 12 (Pt. 2) SCM 213 at 220 G - I where MUKHTAR JSC (Later C.J.N Rtd) held:"It is on record that the learned respondent's counsel did not raise any objection at the point of tendering the statement. It wasafter the confessional statement had been admitted that the respondent retracted the statement in the course of givingevidence in his defence. This I think was an afterthought, for if she was uncomfortable with the statement, the point oftendering and admissibility should have been when to object. It was late in time to have retracted at the stage she did. Theconfessional statement not having been objected to was admissible as evidence, and the learned trial Court was not in error inascribing probative value to it. Authorities abound on this principle. Once there is evidence of the administration of words ofcaution on a suspect in the language he understands, and he voluntarily makes his statement which is so recorded, and hesigned the statement, a Judge is at liberty to act on it and predicate a conviction thereon. See Ikemson v. State 1989 3 NWLRpart.110 page 530, Salami v. State 1971 1 NMLR 249, Edamine v. State 1996 3 NWLR part 438 page 53 and Ubierho v. State2005 5 NWLR part 919 page 644: (2005) 2 SCM, 193."Per IGE, J.C.A. (Pp. 21-22, Paras. B-F) - read in context

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3. EVIDENCE - CONFESSIONAL STATEMENT: Distinction between a confessional statement challenged on the ground that theaccused did not make the statement and confessional statement challenged on the ground that it is not voluntarily made"?Different consideration and principles of law govern admissibility of a Confessional Statement disowned and a ConfessionalStatement objected to as involuntarily made. See GODWIN UKPASA VS. BENDEL STATE (1981) N.S.C.C. 3000 at 309 - 310 perUDOMA, JSC who held:"My lords, it is a well established practice in this country that where on the production of a confession it is challenged on theground that an accused person did not make it at all, the question of whether he made it or not is a matter to be decided atthe conclusion of the trial by the learned trial Judge himself. Whatever objection may be made by counsel in suchcircumstances does not affect the admissibility of the statement and therefore it should be admitted in evidence as the issue ofvoluntariness or otherwise of the statement does not arise for consideration and decision. See Queen v. Igwe (1960) 5 F. S. C.55.In this country where criminal trials are usually held by a Judge sitting alone without a jury, a distinction is usually drawn asregards practice and procedure in relation to the admissibility of a confession in evidence of trial proceedings between aconfession objected to on the ground that it was not made at all by an accused person, in which case such a confession may besaid to have been retracted, and a confession objected to on the ground that it was not voluntary in that although an accusedperson agreed to have made the confession, his complaint would be that he was forced or induced to make it.In the latter case, what is attacked in the admissibility in evidence of the confession and therefore a trial within a trial must beheld, the confession having been challenged on voi dire so as to determine whether or not the confession was voluntary. If atthe end of such trial, the Court comes to the conclusion that the confession was not voluntary, then it is not admissible inevidence, and the Court should so rule.In the former case, where the confession is wholly retracted, the question as to whether or not the confession is admissible inevidence does not arise for decision at all. The trial Judge is entitled to admit the confession in evidence as something whichhad occurred in the course of the investigation conducted by the Police into the case; and thereafter to decide or find a matterof fact at the conclusion of the case as to whether or not, in all the circumstances, the accused person did make the statementas alleged by the Police.In the appeal in hand, the confession having been completely retracted, and all that the learned trial Judge had to do was toconsider whether the appellant had made the statement and whether having regard to the surrounding circumstances, thestatement was true and not whether the confession was voluntary. See also the Privy Council decision in Cham Wel Keug v.Queen (1967) 2 A. C. .160; and R. v. Burgess (1968) 2 Q. B. 112."Per IGE, J.C.A. (Pp. 22-25, Paras. F-C) - read in context

4. EVIDENCE - CONFESSIONAL STATEMENT: Effect of a confessional statement admitted without objection"The Accused was represented by a Lawyer and I discovered that throughout his cross examination by M. A. Abbas, Esq.Counsel to Appellant, he did not ask him a single question concerning role as interpreter when PW2 was obtaining andrecording the Appellant's Statement in English to Ebira and vice-versa when Appellant's Statement was being recorded. Therewas no objection concerning or pertaining to the voluntariness of the confessional statement. The Appellant must be taken tohave offered and made his statement voluntarily. The PW1 and PW2 were not cross examined as to the voluntariness inmaking Exhibits D and D1 by the Appellant.As a matter of fact, the moment Appellant disowned Exhibits D and D1 they became admissible. The Court was only given thetask to decide at the end of the trial if the confessional statements were found to be his and also found to contain theingredient of the offence charged against him. He has no objection as to the grounds stated in Section 29 (2), (3),(4) and (5) ofthe Evidence Act 2011. It is too late in the day to complain that Exhibits D and D1 are inadmissible. See MUSA NATSAHA VSTHE STATE (2017) 18 NWLR (PART 1596) 38 AT 67F - 68A-B per M. D. MUHAMMAD, JSC who said:-"Practitioners must be reminded of this Court's stand on instances such as in the instant case when in Shurumo v. The State(2001) 196 LRCN 199; (2010) 19 NWLR (Pt. 1226) 73 at P. 90 paras. F-G it opined thus: -"When a counsel stands by and allows exhibits to sail smoothly through to become evidence without an eyelid, then itbecomes obvious that the counsel is comfortable with the evidence and see no reason why he should challenge its admission."And that in Emoga v. The State (1997) 7 SCNJ 518, (1997) 9 NWLR (Pt. 519) 25 at pp. 37-38, paras. H-A the Court per Onu hadalso said: -"It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of Court a freeman simplybecause he has a change of mind. The whole trial will be a mockery. It would be dangerous to apply the principle of extrajudicial confession of the accused person as it would open a flood gate of retracting of all statements made by accused personsbefore the police officer." (Italics supplied for emphasis).In the instant case therefore, it does not lie in the mouth of learned appellant's counsel who has represented the appellant allthrough his sojourn, and allowed exhibit A to be admitted in evidence without objection, to now say that the statement bediscarded as same is devoid of any probative value."Per IGE, J.C.A. (Pp. 25-28, Paras. F-A) - read in context

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5. EVIDENCE - CORROBORATION/CORROBORATIVE EVIDENCE: Whether corroboration is required for a confessionalstatement to sustain a conviction"...The learned Counsel to the Appellant also tenaciously argued and impressed to upon the Court that Exhibits A & D were notcorroborated. In other words no credible independent evidence from prosecution witnesses was led to verify or support theconfession of the Appellant in Exhibit D. It must be sounded loud and clear that corroboration of a confessional statement isnot necessary once the Court is satisfied that the Accused/Defendant voluntarily made the statement to the Police. Confessiononce it is proved to be voluntary is an admission and direct acknowledgment that the maker of such statement committed theoffence charged particularly where the confession encapsulates the elements or ingredient of the offence charged. Noindependent corroborative evidence is required again. The Court will be perfectly right to convict the Accused person withoutmuch ado. See the cases of:-1. JAMES OBI ACHABUA VS THE STATE (1976) LPELR - 63 (SC) per OBASEKI, JSC who said:-"Only in few cases do criminals perpetrate their crimes in the open and the secrecy with which they execute their plans hastended to deprive the prosecution in some cases of eye witnesses. Happily, in this case, we have the extra judicial confessionalstatements in evidence and the recovery of the several head of deceased from the grave identified by the Appellant, as theplace he burned it established the truth of the confession. It is settled law that confession alone is sufficient to supportconviction without corroboration so long as the Court is satisfied of the truth of the confession. (R v Sykes 8 Cr. App. R. 223, Rv. Kanu 14 WACA 30, EDET OBOSI v THE STATE (1965) NMLR 119, Paul Onochie & 7 Ors v. The Republic (1966) NNR 307 andJimoh Yesufu v The State (1975) 6 5. C. 167"?It is important to note here that if the learned Counsel had taken time to read the findings of the learned trial Judge he wouldhave realized that Exhibit "A" is not relevant for attack here. Exhibit A is the document tendered by PW1 as the confessionalstatement of 1st Accused IBRAHIM FAARI SHAFILL whose appeal is not under consideration here. PW1 tendered Exhibit "A" onpage 131 of the record in the following manner."PW1 Continues: I recorded the statement of the 1st accused person on 6th March, 2010. If I see the statement I can recognizeit through my handwriting, my name and date, the document shown to me is the statement I recorded from the 1st accusedperson.Okino, Esq. seek to tender the statement of 1st accused in evidence.Abdullahi, Esq. we object to the admissibility on the ground that the accused has denied making this statement but thestatement he made to the Police he wrote it and signed it himself.Okino, Esq. urge the Court to discountenance the objection and admit the statement as it is relevant to this proceeding.Court: The objection of the learned Counsel to the 1st accused will be relevant as regards what weight to be attached to thestatement during the consideration of the evidence and not on admissibility of the statement which is otherwise relevant.Objection is overruled and the statement of the 1st accused person dated 6th March, 2010 is admitted in evidence and markedExhibit A."There was no objection of any substance to theadmissibility of Exhibit "A". All the learned Counsel to the 1st Accused said was that the statement Exhibit A did not belong to1st Accused. The learned trial Judge did not use Exhibit "A" to convict the Appellant. His Lordship used and relied on Exhibits Dand D1 to found conviction of the Appellant. The learned trial Judge was careful in his approach and was conscious of Section29 (4) of the Evidence Act which provides that a confessional statement is only relevant against the person who made it unlessadopted by an Accused who is also implicated by it where two or more accused persons are charged for commission of anoffence jointly. See: THE STATE VS JAMES GWANGWAN (2015) 9 SCM 253 at 271D-G per OKORO J5C who said:- ."One other issue which afflicted this case relates to the decision of the learned trial Judge that the evidence of PW5 and the co-accused persons corroborated the alleged confessional statement of the Respondent. Happily, the lower Court shot down thesaid decision. The reason is not far-fetched. First, where an accused person makes a confessional statement as to hisparticipation in a crime, he is not confessing for his accomplices. An accused person's confession is only evidence against himand not against co-accused persons and it is a misdirection which may lead to the quashing of the conviction. However, aconfessional statement of a co-accused can only be used against an accused person if he voluntarily adopts it. See Ozaki v.State (1990) LPELR -2888 SCJ (1990) 1 NWLR (Pt. 124) 92, Evbuomwan v. COP (1961) WNLR 257. In the instant case, the use ofthe statements of co-accused persons against the respondent without him adopting them as his, was unlawful and has avitiating effect on his conviction by that Court."The finding of the trial Judge quoted in paragraph 4.4.2 of Appellant's Brief makes it clear that the lower Court relied on theconfessional statement made by each of the accused persons, Exhibits A and D and brought to the fore the degree or level ofculpability of each of the Accused persons on his own confession as incriminating and showed the two Accused as being guiltyeach on his own confessional statement. For avoidance of doubt the trial Judge said:-"After a careful examination and study of Exhibit A and D, I have no doubt in my mind that with the detailed account containedtherein, it is free, voluntary and truthful confession of guilt by the two accused persons, each stating the level of hisparticipation on the crime. It is in the light of the above that, I considered the oral evidence and denial of the two accusedpersons as an afterthought and unworthy of any credit." (Page 169 of the record.)Again no corroboration is required since the lower Court was satisfied that the Appellant's Exhibits D and D1 and as can beseen, the Appellant absolutely confessed to the crime of culpable homicide for which he was charged along with the Co-Accused. No independent evidence in form of corroboration was required. See JIMOH DINA VS THE STATE (1984) LPELR -949 SCpages 12 -13 per KARIBI-WHYTE, JSC who held:-''It is clear on the evidence before the learned trial Judge that Appellant was not saying that the statement was not voluntary inwhich case the question of admissibility will arise. R. v Onabanyo (1936) 3 W.A.C.A.43. He is saying that he did not make anystatement at all. In this latter case it will be proper to receive the statement in evidence, and at the end of the case decidewhether it was made by the Appellant R v. Igwe (1960) 5 F.S.C. 55. This was the position in this case, and the trial Court wasright in so doing. It was held the confession was voluntary. A confession is evidence against the person who made it S. 27(1) Itis sufficient of believed for the conviction of the maker. Corroboration of the confessions is merely desirable and not necessary.R. v. Umokaro 7 W.A.C.A. 140. The trial Judge however found corroboration of the confession. The confession of the Appellant isconclusive that he killed the deceased. The trial Court was right to so hold, and the Court of Appeal in dismissing the appealupholding the conviction on that ground.''Per IGE, J.C.A. (Pp. 28-34, Paras. B-D) - read in context

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6. EVIDENCE - CONFESSIONAL STATEMENT: Whether an accused person can raise an issue concerning the confessionalstatement of a co-accused which was not tendered"I must say at once that the submissions made under Issues 3 and 4 by the learned Counsel to the Appellant are totally devoidof any merit and they are grossly misplaced. The Appellant here was the 2nd Defendant before the lower Court and thestatement being bandied about under the issues under consideration was ascribed to the 1st Accused and NOT to theAppellant's herein. PW1 had said while giving evidence on page 134 under cross examination said:-"The statement of 1st Accused dated 1st April, 2010, is in respect of another case."I am of the firm opinion that the Appellant has no locus standi to query or challenge the failure of the prosecution to tenderstatement made on 7th April by 1st Accused person. The statement does not belong to the Appellant and he has no right to puthimself in the shoes of the said 1st Accused. Appellant prefers to carry another person's load on his head while dragging hisown luggage on the ground. It is the proverbial penny wise pound foolish. Just as the content of that statement cannot bindhim or aid his case under Section 29 (4) of Evidence Act it is not in his stead to raise any issue concerning a co-accusedstatement that was not tendered.Again even if the statement belongs to the Appellant and it was not tendered, the Appellant's right would be to call for it and ifthe prosecution refused to produce it, he could invoke Section 167 (d) of the Evidence Act against the Prosecution. As it is nowSection 167 (d) of the Evidence Act is wholly irrelevant and not applicable. Section 125 of the Evidence Act has no bearing onthe strange facts narrated by the Appellant Section 125 only states that "All facts, except the contents of documents may beproved by oral evidence. That is not the scenario created here by the Appellant's own wishful thinking on matters that hasnothing to do with his appeal and defence. What is more, PW1 categorically stated that the statement made on 7th April, 2010was in respect of another case. Head or tail the Appellant is bound to lose issue 3 as it did not touch and concerns him."PerIGE, J.C.A. (Pp. 38-39, Paras. A-E) - read in context

7. EVIDENCE - CALLING OF WITNESS(ES): Whether the prosecution is obliged to call the witnesses named in the proof ofevidence"The Appellant under Issue four had also vigorously contended that the failure to call Lamidi Yusuf and Madam Sheria to testifywas fatal to the prosecution's case in that they are very vital witnesses.Under cross examination of PW1 by learned Counsel to the 1st and 2nd Accused persons PW1 said:-"The 2nd accused person implicated the 1st Accused, one Yusuf Lamidi, who lives in Enyinae, also told me about the incidentinvolving the accused. I believed what he told me because he lives in that area. I did not record the statement of that YusufLamidi.We went to see one Madam Sheria but she was not around. (Page 135 of the record) he said Two people told me duringinvestigation that 2nd Accused was involved in the killing the deceased and these people are 1st Accused person and YusufLamidi. I did not take statement of Yusuf Lamidi." I did not take the statement of Yusuf Lamidi. I did not record any statementfrom any other person in respect of this case."The record shows that the Police did not arrest the said Lamidi Yusuf and Madam Sheria and they were not listed asProsecutions witnesses. See pages 39 and 40 of the record of appeal. Again from the evidence given by the PW1 there isnothing tangible the two persons could have said to exonerate the Appellant since no statement was obtained from them.Section 167 (d) of the Evidence Act does not apply to failure to call a witness by the Prosecution but failure to tender orproduce documentary evidence or exhibits that are relevant to the criminal proceedings. See:-IDOKO OCHANI V THE STATE (2017) 18 NWLR (PART 1596) 1 AT 31 E-G per KEKERE-EKUN, JSC who said:-"As regards failure of the prosecution to call the person named by PW1 as being present at the scene and the invitation to theCourt to invoke the provisions of Section 167(d) of the Evidence Act against the Respondent, the two lower Courts havecorrectly stated the position of the law that the prosecution is not bound to called every witness listed on the proof of evidenceif it is satisfied that the witnesses called are sufficient to discharge the onus of proof beyond reasonable doubt. It is pertinent toobserve that Section 149(d) of the Evidence Act (now Section 167(d)) relates to evidence that is withheld and not the fact thata particular witness was not called. See Oguonzee v The State (supra) at page 229 B-F. The Appellant was also at liberty to callwitness not called by the prosecution."?See also Section 36(6)(d) of the 1999 Constitution of Nigeria as amended which provides:-"36(6)(d) Every person who is charged with a criminal offence shall be entitled to: -(d) examine, in person or by his legal Practitioners, the witnesses called by the prosecution before any Court or Tribunal andobtain the attendance and carry out the examination of witnesses to testify on his behalf before the Tribunal on the sameconditions as those applying to the witnesses called by the prosecution."It is the prerogative of the prosecution to call any witness it desires or believes can sustain the charge against an accusedperson. See DAVID AMADI V. AG IMO STATE (2017) 6 SCM 37 AT 461-G per EJEMBI EKO, JSC who said:-"The prosecution, where there is no requirement of corroboration as a matter of law, does not need to call a host of witnessesonce the credible evidence of a single witness proves all the ingredients of the offence charged. There would only be need tocall more witnesses whose evidence would sway the Court if and only if, the available evidence does not conclusively prove theingredients of the offence charged. The Appellant's counsel had called in aid the STATE V. AZEEZ & ORS.(2008) 14 (Pt. 1108) 451, also reported elsewhere as (2008) 4 SC. 188; (2008) 3 FWLR 4567 SC, (2008) 8 SCM, 175 as boosterto his submission that if all the vital or material witnesses are not called by the prosecution the case is doomed to fail. I amafraid this does not represent the ratio decidendi of the State v. Azeez (supra). The decision of this Court on this point, per M.D. Muhammad, JSC in the State v. Azeez (supra), is that in discharge of the burden of proving a crime beyond reasonable doubtplaced by Section 138 (1) of the Evidence Act 1990 (now Section 135(1) of the Evidence Act, 2011):"It is the duty of the prosecution to see that it places before the trial Court all available relevant evidence. This may not meanthat a whole host of witnesses must be called upon (on) the same point, but it does mean that if there is a vital point in issueand there is one witness whose evidence would settle it one way or the other, that witness ought to be called."The "Judge" of whose evidence establishes or proves that vital point is the prosecutor. The Court will not usurp that function ofthe prosecutor. All the Court, as the final arbiter, interested in is whether the available evidence proves the vital point."Per IGE,J.C.A. (Pp. 39-44, Paras. E-A) - read in context

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8. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in criminal cases; ways of provingthe commission of a crime/guilt of an accused person"It is beyond argument that the burden and standard of proof in any criminal proceedings is squarely on the prosecution. Thisis statutorily provided in Section 135 (1) (2) and (3) of the Evidence Act 2011 as follows:-"135(1) of the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, itmust be proved beyond reasonable doubt.(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to Section 139 of this Act, onthe person who asserts it, whether the commission of such act is or is not directly in issue in the action.(3) If the prosecution proves the commission of a crime beyond reasonable doubt the burden of proving reasonable doubt isshifted on the defendant."This must be read along with Section 36 (5) of the Constitution of the Federal Republic of Nigeria (1999) as amended whichsays:-"36(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Providedthat nothing in this Section shall invalidate any law by reason only that the law imposes upon any such person the burden ofproving particular facts. -?Thus the prosecution is under a duty to proof all the components or elements of the offence for which the Accused/Defendantis charged. This can be proved vide any of the following methods viz:-(a) By evidence of an eye witness or witnesses;(b) Through the confessional statement of the accused or Defendant;(c) Through circumstantial evidence. See the cases of:-1. SHUAIBU ABDU VS THE STATE (2017) 7 NWLR (PART 1564) 171 AT 186 F- H per SANUSI, JSC who said:-''In all criminal cases the burden of proof squarely lies on the prosecution which always has a duty to prove all the abovementioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of suchproof is nothing less than proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidenceproduced by the prosecution such doubt shall be resolved in favour of the accused person . See Famakinwa v. The State (2013)7 NWLR (Pt. 1354) 597; Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; David Abaje v. The State (1976) All MLR 139. It is appositeto say that in order to prove an offence the prosecution can use any of the following modes of proof namely:-(1) Evidence of eye witness or witnesses; or(2) Confessional statement of the accused; or(3) Through circumstantial evidence.2. S. S. YONGO & ANOR VS COP (1992) 8 NWLR (PART 257) 36 AT 50 per KUTIGI, JSC later CJN RTD."Per IGE, J.C.A. (Pp. 52-54,Paras. E-F) - read in context

9. EVIDENCE - EVALUATION OF EVIDENCE: Duty of trial judge to evaluate evidence and nature of the duty of an appellatecourt in reviewing such evaluation on appeal"When it comes to evaluation of evidence, it is settled that ascription of probative value to evidence and appraisal of oralevidence is primarily the duty of trial Court who saw and observed the demeanour of witnesses while testifying before the trialCourt. This Court will not lightly interfere in the findings of a trial Court on oral/ documentary evidence of witnesses unless theAppellant can show miscarriage of justice. See OWOLABI KOLADE V. THE STATE (2017) 4 SCM 46 AT 871 TO 88 A - D perGALINJE, JSC who said:-''I wish to state clearly that assessment and/or appraisal of oral evidence and ascription of probative value to such evidence isthe primary duty of the trial Court. An Appellate Court has no jurisdiction to interfere with that duty unless there are specialcircumstances that warrant such interference. Learned counsel for the Appellant has accused the lower Court of failing toevaluate the evidence of the prosecution and the defence by the trial Court. Has he shown any special circumstances thatwould warrant such interference? In Eyo v Onuoha (2011) 11 NWLR (Pt. 1257) 1 at 38 - 39 paragraphs G - A, this Court perTabai JSC said: -"It is settled principle of law that the duty of evaluation of evidence is pre-eminently that of the trial Court which alone has thebenefit of seeing and hearing witnesses in the course of the testimonies; it is the trial Court that has the singular benefit ofwatching the demeanour of witnesses in the course of their testimonies ...As a general rule therefore, an Appellate Court would not disturb the findings of a trial Court unless it is proved that thefindings are not supported by the evidence on record and therefore perverse. This is because of the Appellate Court'sdisadvantage of not having seen or heard the witnesses".2. M. E. BROWN & ANOR V THE STATE (2017) 4 NWLR (PART 1556) 341 AT 373 D - H TO 374 A per SANUSI, JSC who said.-"On evaluation of the evidence adduced before the trial Court, I am also convinced that the learned trial judge hadpainstakingly; evaluated the evidence adduced before him in this case before reaching his conclusion that the offences wereproved beyond reasonable doubt against them by the prosecution/respondent.I have calmly read the record of proceedings, the arguments contained in the Appellant's Brief, Respondent's Brief of Argumentand Appellant's Reply Brief of Argument and I have no doubt in my mind that the lower Court assiduously assessed andevaluated the oral and documentary evidence before it and it clearly and justly came to the right conclusion against theAppellant. The findings of the learned trial Judge cannot be faulted."Per IGE, J.C.A. (Pp. 62-64, Paras. B-D) - read in context

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10. EVIDENCE - CONFESSIONAL STATEMENT: Whether a court can convict on a retracted confessional statement"The confessional statement of the Appellant exhibits "D" and "D1" bear eloquence testimony to the facts that the chargeagainst the Appellant and his co-accused is well laid and founded. The prosecution is right. The Appellant profusely andvoluntarily confessed to his active participation in the killing of the deceased one "OTANDI". He. gave detailed or elaborateincidents and events leading to the killing of the deceased. It stemmed out of the fact that the Appellant and his gang ofmurderers perceived that the deceased was exposing their crimes and commission of offences at Okene axis to a rival criminalgroup and law enforcement agencies. The Appellant gave vivid description of how he and his cohorts in crime killed andmurdered the said OTANDI. The Appellant though represented by Legal Practitioner allowed the statement to be admittedwithout any objection to its admissibility as all he told the Court was that the statements Exhibits D and D1 were not his own.In such a situation the trial Judge would be perfectly entitled to admit the confessional statement in evidence and decide laterif truly the statement could be linked with the Accused. In this case the evidence of prosecution witnesses and Exhibits "D'' and"D1" graphically and vividly show that the Appellant was and he is the maker of those exhibits and the lower Court was right infinding that Appellant made the statements and that all the ingredients of offence of culpable homicide for which Appellantwas charged along with his co-accused encapsulated all the elements of the offence of culpable homicide. It is too late in theday for the Appellant to be crying wolf where there is none. He cannot extricate himself from the clutches and shackles of theconfessional statement Exhibits D and D1 respectively. The statements met, squarely, the requirements postulated in the caseof R v SYKES supra. The feeble attempt of the Appellant to wriggle out of the stark reality and consequence of his confession isa mere afterthought.The fact that an accused resiled or retracted from his confessional statement is not an impediment in the way of the trialCourt. The trial Court is free to convict on the retracted confession once it is properly admitted and the trial Judge is satisfiedas in this case that the confessional statement was voluntarily made. The learned trial Judge lawfully and legally relied onExhibits "D" and "D1" in convicting the Appellant of culpable homicide. All the ingredients of the offence of culpable homicidewere proved and established to the hilt against the Appellant. See:-1. OLUSANYA ONITILO VS THE STATE (2018) 2 NWLR (PART 1603) 23 AT 257 F - H TO 258A per KEKERE-EKUN, JSC who said:-"My lords, it is the settled position of the law that the burden of proof in a criminal trial lies on the prosecution throughout anddoes not shift. The accused person enjoys a constitutionally guaranteed presumption of innocence. It is the duty of theprosecution to rebut the presumption. Furthermore, it is an onerous burden, as the Standard or Proof required is proof beyondreasonable doubt. Igbi v. The State (2000) 3 NWLR (Pt. 648) 169; Amala v The State (2004) 12 NWLR (Pt 888) 520; Amadi v.FRN (2008) 12 SC (Pt. 111) 55; (2008)18 NWLR (Pt. 1119) 259. The standard of proof is not Proof beyond all doubt or beyond ashadow of a doubt. The doubt must be reasonable. It is not sufficient to raise an improbable doubt or a slight doubt or anunlikely doubt or a doubt, which is not supported by credible evidence. See: Bakare v. The State (1987) 1 NWLR (Pt. 52)579@588 C - E; The State v. Oladotun (2011) LPELR-3226 (SC); (2011) 10 NWLR (Pt. 1256) 542; Salawu v. The State (2009)LPELR-8857 (CA).It is equally well settled that the guilt of an accused person may be established in one of three ways, that is to:1, By direct evidence of witnesses;2. By Circumstantial evidence; and3 . By reliance on the voluntary confessional statement of the accused.See: Bello Okashetu v. The State (2016) LPELR-40611 (SC); (2016) 15 NWLR (Pt. 1534) 126; Stephen v. The State (2013) vol.223 LRCN (Pt. 2) 215; (2013) 8 NWLR (Pt. 1355) 153; Oguonzee v. The State (1998) 58 LRCN 3512 @ 3551; (1998) 5 NWLR (Pt.551) 521; Akwuobi v. The State (2016) LPELR -41389 (SC), (2017) 2 NWLR (Pt. 1550) 421."Per IGE, J.C.A. (Pp. 58-62, Paras. B-A)- read in context

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PETER OLABISI IGE, J.C.A. (Delivering the Leading

Judgment): The Appellant and one other person namely;

IBRAHIM FAARI SHAFIU were arraigned before the High

Court of Justice KOGI STATE holden at OKENE (Coram:

HON. JUSTICE S. O. OTU) on the 8th day of March, 2011

on two Court Charge as follows:-

"FIRST HEAD OF CHARGE

That you, Ibrahim Faari Shafiu, Aminu Dio (a.k.a)

Ojukwu and others at large sometimes in 2008 at

Enyinare Okene in Okene Local Government Area

within the Kogi State Judicial Division agreed to do

all illegal act wit: to commit culpable homicide on one

Otandi of Okene, and that the same act was done in

pursuance of the agreement and that you thereby

committed an offence punishable under Section 97

(1) of the Penal Code.

SECOND HEAD CHARGE

That you, Ibrahim Faari Shafiu, Aminu Dio (a. k. a)

Ojukwu and others at large sometimes in 2008 at

Enyinare Okene in Okene Local Government Area

within the Kogi State Judicial Division committed

culpable homicide punishable with death in that you

caused the death of Otandi, by doing an act to wit:

while armed with AKA 47 rifle FNC, Pump

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action and SMG guns, you shot the said Otandi all

over his body and burnt his remains to ashes with the

intention of causing his death and thereby committed

an offence punishable under Section 221(a) of the

Penal Code."

Their plea was taken and the Appellant pleaded not guilty

to the said two Counts contained in the Charge. The matter

proceeded to trial and the prosecution in order to sustain

the two Counts against the Appellant and the co-accused

called two witnesses who testified and tendered exhibits.

The Appellant testified in his own behalf and called no

other witnesses. At the end of the trial and submissions of

the learned Counsel to the Appellant and his co-accused,

the learned trial Judge gave considered judgment in the

matter on 20th day of April, 2012 wherein he found that the

Appellant and his co-accused NOT GUILTY on the Count of

Conspiracy. The learned trial Judge however found the

Appellant and the 1st Accused IBRAHIM FAARI SHAFIU

GUILTY OF CULPABLE HOMICIDE PUNISHABLE WITH

DEATH and convicted them. They were sentenced as

follows:-

"Court: As I had stated in this Court in previous cases,

it is a serious matter for concern that

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young persons who normally should be in pursuit of

academic knowledge or other trade on profession

have engaged themselves in this type of heinous and

condemnable activities. Where thugs are used and

identify with political parties and cause mayhem, the

State should be bold enough to bring their sponsors

to book. The revelations in this case leading to the

horrendous way the deceased was killed is a pointer

to the young ones not to allow themselves to be used

as thugs or misled by such political opportunists in

the parties. This is a warning for the youth to pursue

legitimate career as criminality in whatever form

cannot in the end pay. It only leads to perdition. The

law is clear and I have no discretion in the matter.

Accordingly, you Ibrahim Faari Shafiu, are hereby

sentenced to death, be hanged by the neck until you

be certified dead. You, Ammu Dio, aka Ojukwu, are

hereby also sentenced to death to be hanged by the

neck until you be certified dead.

(SGD)

S.O. OTU,

JUDGE.

20-04-2012.''

The Appellant was dissatisfied with the verdict of the lower

Court and consequently appealed to this Court vide his

Amended Notice of Appeal dated 24th

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July, 2017 filed the same date consisting of ten (10)

grounds which without their particulars are as follows:-

"GROUNDS OF APPEAL

GROUND ONE (1)

The Trial High Court Judge erred in law when he held:

"In this case, there is no evidence that Lamidi Yusuf

was present and witnessed the commission of the

crime. All PW1 stated whether cross examination is

that during the investigation, he learnt from Lamidi

and 1st accused that 2nd accused person was involved

in the killing but took no statement from the said

Lamidi Mama Sheria, on the other hand was the place

the accused persons, the deceased and others were

relaxing and drinking local gin when the phone of the

deceased rang. The pursuit of the deceased started

from there but it was not the place the deceased was

killed. What evidence, will Lamidi and Mama Sheria

give that is not already before the Court. I do not see

in what way the calling of Lamidi Yusuf and Mama

Sheria wil l aid the accused persons in the

circumstances."

and thus occasioned miscarriage of justice which led to the

conviction of the Appellant when they would have testified

independently to the identity or not of the said

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deceased.

GROUND TWO (2)

The Trial High Court Judge erred in law when he held:

"From the evidence of the prosecution witness and

exhibits A and D, the said Otandi was with the

accused persons and others at that material time

relaxing and drinking local gin. Problem started when

they suspected that the deceased had sold them out,

leading to his being pursued, shot and his body burnt.

I have no doubt therefore that the said Otandi existed

and I therefore hold that the prosecution has proved

the death of Otandi beyond reasonable doubt."

which decision occasioned miscarriage of justice leading to

the conviction of the Appellant.

iii. GROUND THREE (3)

The Prosecution has failed to prove that there exists any

human being named Otandi killed by the Appellant.

iv. GROUND FOUR (4)

The Trial High Court Judge erred in law when he held:

"After a careful examination and study of exhibits A

and D, I have no doubt in my mind that with the

detailed account contained therein, it is a free,

voluntary and truthful confession of guilt by the two

accused persons,

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each stating the level of his participation in the

crime. It is in the light of the above that I considered

the oral evidence and denial of the two accused

persons as an afterthought and unworthy of any

credit.

Before I go into the consideration of whether the

prosecution has proved the case against the accused

person as required by law, let me deal with question

raised in the written address of the defence. The first

is that the prosecution witnesses had consistently

maintained that they are still investigating this case,

which according to learned Counsel shows that the

police have not concluded its investigation to warrant

the accused persons being brought before this Court."

Which decision occasioned miscarriage of justice, thus

erroneously convicted the Appellant.

v. GROUND FIVE (5)

The trial Court erred in law when in its judgment it

concluded that the Appellant was armed with FNC riffle

Cali 5.56mm the Court started "Regarding how they

came above owning the FNC riffle, which he was

armed that day, the 2nd Accused person stated in the

said Exhibit D they..." which decision occasioned a

miscarriage of justice.

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vi. GROUND SIX (6)

The judgment of the trial Court was unreasonable,

unwarranted and unsupported having regard to the

evidence adduced at the trial.

vii. GROUND SEVEN (7)

The learned Trial Judge erred in law when he held that the

Prosecution proved the offence of culpable homicide

punishable with death contrary to Section 221 (a) of the

Penal Code beyond reasonable doubt against the Appellant.

viii. GROUND EIGHT (8)

The learned trial Judge erred in law when he held that

Exhibit D was legally admitted in evidence in this case, and

thereby occasioned a miscarriage of justice on the

Appellant.

ix. GROUND NINE (9)

The learned trial Judge erred in law when he relied on facts

in Exhibits A and D as corroboration of the content of the

same documents and thereby occasioned a miscarriage of

justice on the Appellant.

x. GROUND TEN (10)

The learned trial Judge erred in law when he held that

failure to the Prosecution to tender the extra-judicial

statement of the Appellant's co-accused person did not

amount to withholding of evidence contrary to Section 167

(d) of the Evidence Act, Cap 18, Laws of the Federation of

Nigeria, 1990."

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The Appellant and the Respondent filed and exchanged

Briefs of Argument dated 10th July, 2017 was filed on 27th

July 2017 while the Respondent's Brief of Argument was

dated and filed the 20th day of November, 2017. The

Appellant's Reply Brief on Point of Law was filed on 4th

December, 2015 and deemed filed on 5th December, 2017.

The learned Counsel to the Appellant ACHINIKE G.

WILLIAMS-WOBODO, E5Q. distilled six (6) issues for

determination of the appeal viz:-

"1. Whether the Trial Court was right when it held

that the Prosecution has proved the offence of

culpable homicide punishable with death as require

by law as to warrant the conviction of the Appellant?

(Covers grounds 2, 3, 5, and 7 of the Notice of

Appeal).

2 Whether Exhibit D was admissible in law and

therefore properly admitted in evidence by the Trial

Court. (Ground 8 of the Notice of Appeal).

3. Whether the Trial Court was right when it held that

the failure of the Prosecution to produce and tender

at the Trial Court the written statement made by the

Appellant's co-accused person on 7th April 2010 in

the custody of the prosecution did not amount to

withholding of evidence; and whether that

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was fatal to the Prosecution's case. (Ground 10 of the

Notice of Appeal).

4 Whether Lamidi Yusuf and Mama Sheria were

material and vital witnesses who ought to be called in

evidence, the failure of which was fatal to the

Prosecution's case, and if so whether the Trial Court

was right to have overlooked the failure of the

Prosecution to call them. (Ground 1 of the Notice of

Appeal).

5. Whether the Trial Court was right when it used the

content of Exhibits A and D as corroboration of the

same documents (evidence) and then relied solely and

wholly upon the inadmissible, uncorroborated,

contested and untested extra-judicial statement of the

Appellant and/or an uncorroborated, untested and

contested extra-judicial of a co-accused person to

convict the Appellant. (Grounds 9 of the Notice of

Appeal).

6 Whether the Trial Court properly evaluated the

evidence and Exhibits A and D before it as required by

Law before it relied on the said Exhibits to convict the

Appellant? (Ground 4 and 6 of the Notice of Appeal)."

The learned Counsel to the Respondent BADAMA KADIRI,

Ag. DEPUTY DIRECTOR, MOJ, KOGI STATE formulated

three issues for consideration of the appeal.

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"1. Whether the lower Court was right in convicting

the Appellant on the strength of his confessional

statements, exhibits "D" and "D1.

2. Whether the Respondent proved its case against

the Appellant beyond reasonable doubt.

3. Whether the failure of the Respondent to tender

the statement of the Appellant's co-accused made on

the 7th day of April, 2010 in respect of a different

offence other than the offences the Appellant stood

trial at the lower Court and failure to call Lamidi

Yusuf and Mama Sheria is fatal to the case of the

Respondent."

I am of the view that the issues distilled by the Appellant's

Counsel can be utilized to determine this appeal. I will

however treat issues 2 and 5 together first.

ISSUES 2 AND 5

2. Whether Exhibit D was admissible in law and

therefore properly admitted in evidence by the Trial

Court. (Ground 8 of the Notice of Appeal).

5. Whether the Trial Court was right when it used the

content of Exhibits A and D as corroboration of the

same documents (evidence) and then relied solely and

wholly upon the inadmissible, uncorroborated,

contested and untested extra-

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judicial statement of the Appellant and/or an

uncorroborated, untested and contested extra-judicial

of a co-accused person to convict the Appellant.

(Grounds 9 of the Notice of Appeal).

Under Issue 2, the learned Counsel to the Appellant

submitted that Exhibit "D" was inadmissible in law and

ought not to have been admitted and he urged the Court to

expunge it from the records as according to him it is an

inadmissible hearsay evidence. He tagged Exhibit "D" as an

alleged "extra-judicial confessional statement" of the

Appellant. He stated that the Appellant clearly retracted

and denied making the content of Exhibit "D". That it was

purportedly made and recorded through the aid of an

interpreter. He relied on the evidence of PW2 on pages 135

lines 23 - 32 of the record. That the trite law is that where

an Accused made extra judicial statement through an

interpreter, the person who interpreted the statement must

be called to give evidence and state the questions that were

put to him by the recording officer which were recorded

and vice-versa. He submitted that failure to do this would

render the extra judicial statement as hearsay and

inadmissible. He

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relied on the case of NWAEZE V THE STATE (1996) 2

NWLR (PT. 428) 1 AT 20 per IGUH, JSC and FRN V

MOHAMMED USMAN (2012) ALL FWLR (PT. 632)

1639 per RHODES-VIVOUR, JSC.

According to the learned Counsel, the person who acted as

interpreter when Exhibit "D" was made was not called "or

rather did not give evidence in that regard or capacity.

That PW1 who claimed to have acted as an interpreter to

the 2nd Accused the Appellant did not testify as such and

that he did not identify Exhibit ''D" the product of his

interpretation. He relied on PW1's evidence on page 133 of

the record. That he did not give evidence as interpreter but

as an IPO. He urged the Court to set aside all findings and

conclusions of the trial Judge on Exhibit "D".

On issue 5, the learned Counsel to the Appellant also

contended that before an extra judicial statement could

qualify as confessional statement, the accused person said

to have made the statement must admit unequivocally that

he committed the offence charged with in order to show

that the statement was made voluntarily. He relied on the

case of MUSA UMARU KASA V THE STATE (1994)

LPELR - 1671 (SC) per UWAIS, JSC . That the

confessional

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statement must be corroborated by independent evidence

no matter how slight. That evidence of Appellant cannot be

used to corroborate his alleged confessional statement

having denied making Exhibits A and D. That the trial Court

relied solely on Exhibits A and D to convict the Appellant.

That in an attempt to create corroboration to support the

findings, the learned trial Judge entwined Exhibits A and D.

That corroboration must be supported by an independent

evidence as according to him Exhibits A and D are

deficient, suspect and incredible. He relied on the cases of

BABANGIDA JOHN VS THE STATE (2011) LPELR

8781 (CA) pages 26 – 27 and SULE V THE STATE

(2014) LPELR - 24044 CA p. 20 per AWOTOYE, JCA

and DANKIDI V THE STATE (2014) LPELR - 23812

(CA) C - D.

That both Exhibits A and B were retracted. That there was

no evidence to support the findings that Exhibits A and D

were voluntary. That the Appellant raised objection to the

authorship of Exh. D while it was being tendered but was

overruled. To the learned Counsel, the trial Judge was

wrong in holding that the Appellant's retraction was an

afterthought. That there was no credible evidence to

support

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the contents of Exhibits A and D. That Appellant has joined

issues with the prosecution on Exhibits A and D. He again

contended no interpreter was called. That the trial Judge

did not resolve the issue. That a confessional statement

must comply with conditions prescribed in Sections 28 and

29 of the Evidence Act 2011 to make it admissible and that

the six tests stated in R v Sykes (13) 18 APP 233 must be

adopted to test the confessional statement relying on the

cases of (1) IKPASA V. A.G. BENDEL STATE (1981) 9

SC 7; (2) ONOCHIE V THE REPUBLIC (1966) NWLR

307; (3) AKPAN V THE STATE (1992) 6 NWLR (PT.

248) 439.

That Exhibits A, D, and D1 were not so tested and were not

corroborated. That the lower Court erred in connecting the

Appellant on Exhibits A, D, and Dl. He relied on the case of

MUSTAPHA V THE STATE (2008) 2 FWLR (PT. 419)

2372 - 2374 G - B. He also adopted his submissions under

Issue 2.

In response to the above submissions the learned Ag.

Deputy Director for the Respondent stated that the learned

trial Judge was right in convicting the Appellant on the

strength of his confessional statement Exhibit "D". That by

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the Exhibit, the Appellant confessed to the crimes for which

he was charged at the lower Court. That Appellant

confessed that he along with his co-accused and members

of their gang chased the deceased and shot him on the

chest and he died. That they also burnt the body to ashes.

That the Respondent sufficiently established the fact that

the confessional statement of the Appellant was freely and

voluntarily made and there was no form of objection on

ground of involuntariness. That the confession was direct

and positive. That the trite law is that admissions made by

an accused person in his extra judicial statement to the

Police or after being charged to Court are relevant facts

against the Accused. He relied on the case of AKINMOJU

V THE STATE (2000) 4 SC (PT. 1) 64 AT 67 per

UWAIFO, JSC and Sections 28 and 29 of the Evidence Act.

That PW1 and PW2 succinctly testified at lower Court and

their investigations revealed that deceased person died and

that Exhibit "A" confirmed the death of the deceased. That

Appellant admitted that he was interrogated by the Police.

That the evidence of PW1 and PW2 provided independent

facts outside the confessional statement Exh. "D" to the

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effect that a crime was indeed committed. That it also

showed that the Appellant was given ample opportunity

and he made statement that he committed the offence. That

these facts are in compliance with the tests laid down to

assess a confessional statement. He relied on the cases of:-

1. UBIERHO V STATE (2005) 5 SCNJ 1 AT 8;

2. IDOWU V STATE (2000) 7 SC 114 AT 125 & 126;

3. ALARAPE V STATE (2001) 2 SC 114 AT 125 & 126;

4. ULUEBEKA V STATE (2000) 4 SC (PT. 203 AT 218.

The learned Counsel to the Respondent submitted that a

confessional statement is the highest and most satisfactory

evidence if there is independent proof that a crime has

indeed been committed and the accused had the

opportunity of committing the crime. He relied on the case

of AKPA VS THE STATE (2007) 9 NWLR (PT. 1019)

500 AT 524 F-G. That a confessional statement can be

relied upon to convict the Appellant even in the absence of

an eye witness because according to him, same amount to

enough prove beyond reasonable doubt. He relied on the

case of MOHAMMED V STATE (2007) 11 NWLR (PART

1045) 303 AT 320 F.

That a confessional statement alone is sufficient to sustain

a

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conviction without any corroborative evidence. He relied on

MOHAMMED V STATE supra 320 G.

That the mere fact that the Appellant denied making

Exhibit "D" does not make same unreliable and did not

preclude the Court from acting on it to convict. He cited

the case of AKINMOJU V STATE (2000) 4 SC (PT. 1) 64

AT 81.

He further submitted in contrast to the position of

Appellant's learned Counsel on interpreter, that Exhs. D

and D1 were taken through an interpreter who was called

by the prosecution as PW1. That PW1 interpreted all what

the Appellant wrote in Exhibits D and D1 before the lower

Court. He relied on page 133 of the record paragraph 25

thereof. He urged the Court to hold that Exhs. D AND D1

were interpreted to the Appellant.

The contention of the Appellant under issue one is that

Exhibit "D" was and is not admissible. I am of the view that

it is necessary in the interest of justice to refer to the

proceeding of 24th June 2011 when the documents Exhibits

D and D1 the extra judicial confessional statement of the

Appellant was admitted through PW2, TAIWO AKIN a

Sergeant of the Nigeria Police Force attached to Special

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Anti Robbery Squad Force CID in KOGI STATE. The

antecedent to the admission of the said documents can be

found on pages 135 - 136 of the record viz:-

W2: Taiwo Akin, Male, Adult, Nigerian, Christian,

affirmed to speak the truth, speaks English. I am

Force No. 203821, Sgt. Taiwo Akin, attached to

Special Anti-Robbery Squad of the Force CID, Abuja,

but attached to Kogi State. I know the two accused

persons before this Court. During the course of my

investigations, I cautioned the 2nd accused person in

English language and interpreted to him in Ebira

language by Sgt. Louis Otu. Having understood it, he

thumb printed it. After that, freely volunteered a

confessional statement in Ebira language which was

interpreted to me in English Language by Sgt. Otu

and I recorded. The statement was read over in

English which was interpreted to the 2nd accused in

Ebira and having confirmed its correctness thumb

printed it. I equally signed and wrote my name as the

recorder while the interpreter also signed. The

statement was recorded on 24th July, 2010, while the

second statement was recorded on 27th July, 2010.

After the statement, I took him before our Superior

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Police Officer ACP Ayuba Ede who attested to the

statement. If I see the statements, I can recognize

them by my name and handwriting. The documents

shown to me are the statements of the 2nd accused

person_

Okino, Esq. seek to tender the statements in

evidence.

Abbas, Esq. I object to the admission of these

statements in evidence on grounds that the statement

was taken through an interpreter. There is nothing on

the face of the statement that one Sgt. Louis Otu

interpreted.

Secondly, there is no endorsement of such

interpretation on the face of the exhibits. Submit that

these statements are hearsay and so inadmissible,

refer to Makeri Vs. The State (1994) 3 NWLR (Pt.330)

55 at 61. Urge this Court to reject these statements.

Okino, Esq., urge the Court to discountenance the

objections as the statements were interpreted from

Ebira to English. Submit that it is not a requirement

of law that an attestation be endorsed that it was

interpreted.

The PW1 had earlier told the Court that he

interpreted the statement of the 2nd accused person

from Ebira to English language. Urge the Court to

discountenance the objection and admit the

statements.

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Court: I have considered the objections of the learned

Counsel to the admission of the statements of the 2nd

accused person. On the first leg of objections, it is not

fatal to the admission of a statement of an accused

merely because is it not stated ex facie that the fact

that the statement was recorded from an accused is a

particular. What is required is to show in which

language it was taken and if interpreted it should be

so indicated. In the documents sought to be tendered,

the signature of the interpreter and the date is clearly

stated as the interpreter signed and dated the said

statements after which the recorder also signed and

dated. It is also in evidence of PW1 that he was the

one who interpreted the statement of the 2nd accused

from Ebira to English for the recorder. In the

circumstances, the case of Makeri vs. That State

(supra) is distinguishable from this case. Objections

are therefore over ruled and the statements of the

2nd accused person made on 24th July, 2010 is

admitted and marked Exhibit D, while that made on

2th July, 2010, is admitted in evidence and marked

Exhibit D1.

SGD

S.0. OTU,

JUDGE

24/06/2011,"

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One of the reasons for the attack against the admissibility

of the documents Exhibit "D" and "D1" is that they were not

made by the Appellant. In another breath the Appellant's

learned Counsel stated the interpreter who interpreted was

not called.

The settled position of the law is that the appropriate time

to challenge the admissibility of a statement projected as

confessional statement of an Accused on ground of

involuntariness, inadmissibility or any other vices or

inadequacy that may be afflicting such statement is at the

time and point when the prosecutor seeks to tender the

statement or document in evidence and not at Appellate

Court. See:-

1. JOSEPH UBI V. THE STATE (2012) 16 NWLR (PART

1327) 522 at 545 E per CHUKWUMA ENEH, JSC who

said:-

"The objection to a confession is required to be raised at

the tendering of the confessional statement. This is

ordinarily so during presenting of the prosecution's case at

the main trial." (sic).

2. F.R.N. VS. FAITH IWEKA (2011) 12 (Pt. 2) SCM 213

at 220 G - I where MUKHTAR JSC (Later C.J.N Rtd) held:

"It is on record that the learned respondent's counsel

did not raise any objection at the point of tendering

the

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statement. It was after the confessional statement

had been admitted that the respondent retracted the

statement in the course of giving evidence in his

defence. This I think was an afterthought, for if she

was uncomfortable with the statement, the point of

tendering and admissibility should have been when to

object. It was late in time to have retracted at the

stage she did. The confessional statement not having

been objected to was admissible as evidence, and the

learned trial Court was not in error in ascribing

probative value to it. Authorities abound on this

pr inc ip le . Once there i s ev idence o f the

administration of words of caution on a suspect in the

language he understands, and he voluntarily makes

his statement which is so recorded, and he signed the

statement, a Judge is at liberty to act on it and

predicate a conviction thereon. See Ikemson v. State

1989 3 NWLR part .110 page 530, Salami v. State

1971 1 NMLR 249, Edamine v. State 1996 3 NWLR

part 438 page 53 and Ubierho v. State 2005 5 NWLR

part 919 page 644: (2005) 2 SCM, 193."

Different consideration and principles of law govern

admissibility of a Confessional Statement disowned and a

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Confessional Statement objected to as involuntarily made.

See GODWIN IKPASA VS. BENDEL STATE (1981)

N.S.C.C. 3000 at 309 - 310 per UDOMA, JSC who held:

"My lords, it is a well established practice in this

country that where on the production of a confession

it is challenged on the ground that an accused person

did not make it at all, the question of whether he

made it or not is a matter to be decided at the

conclusion of the trial by the learned trial Judge

himself. Whatever objection may be made by counsel

in such circumstances does not affect the

admissibility of the statement and therefore it should

be admitted in evidence as the issue of voluntariness

or otherwise of the statement does not arise for

consideration and decision. See Queen v. Igwe (1960)

5 F. S. C. 55.

In this country where criminal trials are usually held

by a Judge sitting alone without a jury, a distinction is

usually drawn as regards practice and procedure in

relation to the admissibility of a confession in

evidence of trial proceedings between a confession

objected to on the ground that it was not made at all

by an accused person, in which case such a confession

may be said to

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have been retracted, and a confession objected to on

the ground that it was not voluntary in that although

an accused person agreed to have made the

confession, his complaint would be that he was forced

or induced to make it.

In the latter case, what is attacked in the

admissibility in evidence of the confession and

therefore a trial within a trial must be held, the

confession having been challenged on voi dire so as to

determine whether or not the confession was

voluntary. If at the end of such trial, the Court comes

to the conclusion that the confession was not

voluntary, then it is not admissible in evidence, and

the Court should so rule.

In the former case, where the confession is wholly

retracted, the question as to whether or not the

confession is admissible in evidence does not arise for

decision at all. The trial Judge is entitled to admit the

confession in evidence as something which had

occurred in the course of the investigation conducted

by the Police into the case; and thereafter to decide

or find a matter of fact at the conclusion of the case

as to whether or not, in all the circumstances, the

accused person did make the statement as

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alleged by the Police.

In the appeal in hand, the confession having been

completely retracted, and all that the learned trial

Judge had to do was to consider whether the

appellant had made the statement and whether

having regard to the surrounding circumstances, the

statement was true and not whether the confession

was voluntary. See also the Privy Council decision in

Cham Wel Keug v. Queen (1967) 2 A. C. .160; and R.

v. Burgess (1968) 2 Q. B. 112."

Contrary to the submissions of the Appellant that the

interpreter was not called, the PW1 who was one of the

Investigators and who was in the team of Policemen that

effected the arrest of the Appellant testified on page 133 of

the record thus:-

"FW1 Continues: This is all I did in respect of this

case except that also the one who interpreted the

statement of the 2nd accused person from English to

Ebira and vice- versa when his statement was being

recorded by Sgt. Taiwo Akin, a member of our team.

We could not recover the corpse for post mortem

because the corpse was burnt to ashes since 2008 by

the accused persons and others now at large."

The Accused was represented by a Lawyer and I discovered

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that throughout his cross examination by M. A. Abbas, Esq.

Counsel to Appellant, he did not ask him a single question

concerning role as interpreter when PW2 was obtaining

and recording the Appellant's Statement in English to Ebira

and vice-versa when Appellant's Statement was being

recorded. There was no objection concerning or pertaining

to the voluntariness of the confessional statement. The

Appellant must be taken to have offered and made his

statement voluntarily. The PW1 and PW2 were not cross

examined as to the voluntariness in making Exhibits D and

D1 by the Appellant.

As a matter of fact, the moment Appellant disowned

Exhibits D and D1 they became admissible. The Court was

only given the task to decide at the end of the trial if the

confessional statements were found to be his and also

found to contain the ingredient of the offence charged

against him. He has no objection as to the grounds stated

in Section 29 (2), (3),(4) and (5) of the Evidence Act 2011.

It is too late in the day to complain that Exhibits D and D1

are inadmissible. See MUSA NATSAHA VS THE STATE

(2017) 18 NWLR (PART 1596) 38 AT 67F - 68A-B per

M. D. MUHAMMAD, JSC

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who said:-

"Practitioners must be reminded of this Court's stand

on instances such as in the instant case when in

Shurumo v. The State (2001) 196 LRCN 199; (2010)

19 NWLR (Pt. 1226) 73 at P. 90 paras. F-G it opined

thus: -

"When a counsel stands by and allows exhibits to sail

smoothly through to become evidence without an

eyelid, then it becomes obvious that the counsel is

comfortable with the evidence and see no reason why

he should challenge its admission."

And that in Emoga v. The State (1997) 7 SCNJ 518,

(1997) 9 NWLR (Pt. 519) 25 at pp. 37-38, paras. H-A

the Court per Onu had also said: -

"It will not be in the interest of the society to allow a

man who has confessed to his crime to walk out of

Court a freeman simply because he has a change of

mind. The whole trial will be a mockery. It would be

dangerous to apply the principle of extra judicial

confession of the accused person as it would open a

flood gate of retracting of all statements made by

accused persons before the police officer." (Italics

supplied for emphasis).

In the instant case therefore, it does not lie in the

mouth of learned appellant's counsel who has

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represented the appellant all through his sojourn, and

allowed exhibit A to be admitted in evidence without

objection, to now say that the statement be discarded

as same is devoid of any probative value."

The learned Counsel to the Appellant also tenaciously

argued and impressed to upon the Court that Exhibits A &

D were not corroborated. In other words no credible

independent evidence from prosecution witnesses was led

to verify or support the confession of the Appellant in

Exhibit D. It must be sounded loud and clear that

corroboration of a confessional statement is not necessary

once the Court is satisfied that the Accused/Defendant

voluntarily made the statement to the Police. Confession

once it is proved to be voluntary is an admission and direct

acknowledgment that the maker of such statement

committed the offence charged particularly where the

confession encapsulates the elements or ingredient of the

offence charged. No independent corroborative evidence is

required again. The Court will be perfectly right to convict

the Accused person without much ado. See the cases of:-

1. JAMES OBI ACHABUA VS THE STATE (1976)

LPELR -

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63 (SC) per OBASEKI, JSC who said:-

"Only in few cases do criminals perpetrate their

crimes in the open and the secrecy with which they

execute their plans has tended to deprive the

prosecution in some cases of eye witnesses. Happily,

in this case, we have the extra judicial confessional

statements in evidence and the recovery of the several

head of deceased from the grave identified by the

Appellant, as the place he burned it established the

truth of the confession. It is settled law that

confession alone is sufficient to support conviction

without corroboration so long as the Court is satisfied

of the truth of the confession. (R v Sykes 8 Cr. App. R.

223, R v. Kanu 14 WACA 30, EDET OBOSI v THE

STATE (1965) NMLR 119, Paul Onochie & 7 Ors v.

The Republic (1966) NNR 307 and Jimoh Yesufu v The

State (1975) 6 5. C. 167"

It is important to note here that if the learned Counsel had

taken time to read the findings of the learned trial Judge he

would have realized that Exhibit "A" is not relevant for

attack here. Exhibit A is the document tendered by PW1 as

the confessional statement of 1st Accused IBRAHIM FAARI

SHAFILL whose appeal is not under consideration here.

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PW1 tendered Exhibit "A" on page 131 of the record in the

following manner.

"PW1 Continues: I recorded the statement of the 1st

accused person on 6th March, 2010. If I see the

statement I can recognize it through my handwriting,

my name and date, the document shown to me is the

statement I recorded from the 1st accused person.

Okino, Esq. seek to tender the statement of 1st

accused in evidence.

Abdullahi, Esq. we object to the admissibility on the

ground that the accused has denied making this

statement but the statement he made to the Police he

wrote it and signed it himself.

Okino, Esq. urge the Court to discountenance the

objection and admit the statement as it is relevant to

this proceeding.

Court: The objection of the learned Counsel to the 1st

accused will be relevant as regards what weight to be

attached to the statement during the consideration of

the evidence and not on admissibility of the

statement which is otherwise relevant. Objection is

overruled and the statement of the 1st accused

person dated 6th March, 2010 is admitted in evidence

and marked Exhibit A."

There was no objection of any substance to the

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admissibility of Exhibit "A". All the learned Counsel to the

1st Accused said was that the statement Exhibit A did not

belong to 1st Accused. The learned trial Judge did not use

Exhibit "A" to convict the Appellant. His Lordship used and

relied on Exhibits D and D1 to found conviction of the

Appellant. The learned trial Judge was careful in his

approach and was conscious of Section 29 (4) of the

Evidence Act which provides that a confessional statement

is only relevant against the person who made it unless

adopted by an Accused who is also implicated by it where

two or more accused persons are charged for commission

of an offence jointly. See: THE STATE VS JAMES

GWANGWAN (2015) 9 SCM 253 at 271D-G per

OKORO J5C who said:- .

"One other issue which afflicted this case relates to

the decision of the learned trial Judge that the

evidence of PW5 and the co-accused persons

corroborated the alleged confessional statement of

the Respondent. Happily, the lower Court shot down

the said decision. The reason is not far-fetched. First,

where an accused person makes a confessional

statement as to his participation in a crime, he is not

confessing for his

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accomplices. An accused person's confession is only

evidence against him and not against co-accused

persons and it is a misdirection which may lead to the

quashing of the conviction. However, a confessional

statement of a co-accused can only be used against an

accused person if he voluntarily adopts it. See Ozaki

v. State (1990) LPELR -2888 SC(1990) 1 NWLR (Pt.

124) 92, Evbuomwan v. COP (1961) WNLR 257. In the

instant case, the use of the statements of co-accused

persons against the respondent without him adopting

them as his, was unlawful and has a vitiating effect on

his conviction by that Court."

The finding of the trial Judge quoted in paragraph 4.4.2 of

Appellant's Brief makes it clear that the lower Court relied

on the confessional statement made by each of the accused

persons, Exhibits A and D and brought to the fore the

degree or level of culpability of each of the Accused

persons on his own confession as incriminating and showed

the two Accused as being guilty each on his own

confessional statement. For avoidance of doubt the trial

Judge said:-

"After a careful examination and study of Exhibit A

and D, I have no doubt in my mind that

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with the detailed account contained therein, it is free,

voluntary and truthful confession of guilt by the two

accused persons, each stating the level of his

participation on the crime. It is in the light of the

above that, I considered the oral evidence and denial

of the two accused persons as an afterthought and

unworthy of any credit." (Page 169 of the record.)

Again no corroboration is required since the lower Court

was satisfied that the Appellant's Exhibits D and D1 and as

can be seen, the Appellant absolutely confessed to the

crime of culpable homicide for which he was charged along

with the Co-Accused. No independent evidence in form of

corroboration was required. See JIMOH DINA VS THE

STATE (1984) LPELR -949 SC pages 12 -13 per

KARIBI-WHYTE, JSC who held:-

''It is clear on the evidence before the learned trial

Judge that Appellant was not saying that the

statement was not voluntary in which case the

question of admissibility will arise. R. v Onabanyo

(1936) 3 W.A.C.A.43. He is saying that he did not

make any statement at all. In this latter case it will be

proper to receive the statement in evidence, and at

the end of the case decide

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whether it was made by the Appellant R v. Igwe

(1960) 5 F.S.C. 55. This was the position in this case,

and the trial Court was right in so doing. It was held

the confession was voluntary. A confession is evidence

against the person who made it S. 27(1) It is

sufficient of believed for the conviction of the

maker. Corroboration of the confessions is merely

desirable and not necessary. R. v. Umokaro 7 W.A.C.A.

140. The trial Judge however found corroboration of

the confession. The confession of the Appellant is

conclusive that he killed the deceased. The trial Court

was right to so hold, and the Court of Appeal in

dismissing the appeal upholding the conviction on

that ground.''

I resolve issues 2 and 5 against the Appellant.

I will deal with Issues three and four together.

3. Whether the Trial Court was right when it held that

the failure of the Prosecution to produce and tender

at the Trial Court the written statement made by the

Appellant's co-accused person on 7th April, 2010 in

the custody of the prosecution did not amount to

withholding of evidence; and whether that was fatal to

the Prosecution's case. (Ground 10 of the Notice of

Appeal).

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4. Whether Lamidi Yusuf and Mama Sheria were

material and vital witnesses who ought to be called in

evidence, the failure of which was fatal to the

Prosecution's case, and if so whether the Trial Court

was right to have overlooked the failure of the

Prosecution to call them. (Ground 1 of the Notice of

Appeal).

The learned Counsel to the Appellant conceded the settled

principle of law that the prosecution is not under an

obligation to call a particular witness or host of witnesses.

That what the prosecution should do is to call material

evidence and vital evidence. That failure to call vital

evidence will be treated as withholding of evidence

contrary to Section 167 (d) of the Evidence Act 2011 and

would be fatal to prosecution's case. He relied on the case

of OGUDO V THE STATE (2011) LPELR - 860 SC pages

28-29 per RHODES-VIVOUR, JSC. That the first Accused

person insisted that he made a statement on 7/4/2010 to

the Police (PW1) in which learned Counsel said 1st Accused

denied expressly the content of Exhibit "A" before a

Superior Police Officer. That PW1 agreed that 1st Accused

made a statement on the said date but that the prosecution

failed to produce

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the statement. He referred to evidence-in-chief of PW1

page 28 of the record. That 1st Accused while testifying

admitted making statement on 7th April, 2010. That in

order to cover up the PW1 now said it was in respect of

another case.

On issue of failure to call Lamidi and Maina Sheria the

learned Counsel to the Appellant quoted what the trial

Judge said about the complaint of learned Counsel to the

Accused. Appellant to the effect that failure of the

prosecution to call Yusuf Lamidi and Maina Sheria is fatal.

That PW1 testified that one Lamidi Yusuf knew and

informed PW1 about the involvement of the Accused

persons in the crime. That it means those people if they had

been called would have resolved the issue of alleged killing

of “OTANDI" by the Accused. That the prosecution

deliberately kept Lamidi Yusuf away so that he would not

be cross examined. That they also failed to tell the Court

why they did not obtain his statement and tendered it.

He submitted that while a Prosecutor is not bound to call a

whole lot of witnesses he must call vital witnesses

otherwise it will be fatal to prosecutions case.ALAKE VS

STATE (1992) NWLR (PT. 1265)

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260 and OWOLABI V STATE (2014) LPELR -24039

(CA) 22 A - C.

The learned Counsel to the Respondent contended that the

statement dated 7th April, 2010 is not the Appellant's

statement but that of his co-accused at the lower Court

which was in respect of another case which is entirely not

connected with this case. He relied on page 134 of the

record. He submitted that the prosecution did not withhold

any evidence. That the Appellant had right under Section

233 (c) of the Evidence Act to request for a disclosed

statement and use it to discredit PW1 but that Appellant

did not do so. That the document in question is not fatal to

the prosecution's case. That Section 167 (d) has nothing to

do with the calling of a witness. He relied on the case of

RASAKI V STATE (2011) 16 NWLR (PT. 1273) 215 AT

27 (sic).

On failure to call Lamidi Yusuf and Madam Sherai the

learned Respondent's Counsel stated that a vital witness is

witness whose evidence may determine a case one way or

the other. In other words a witness who knows something

significant about a case is a vital witness according to the

Respondent's learned Counsel. He relied on the case of

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OCHIBA V THE STATE (2011) 17 NWLR (PT. 1277)

663 AT 669.

I must say at once that the submissions made under Issues

3 and 4 by the learned Counsel to the Appellant are totally

devoid of any merit and they are grossly misplaced. The

Appellant here was the 2nd Defendant before the lower

Court and the statement being bandied about under the

issues under consideration was ascribed to the 1st Accused

and NOT to the Appellant's herein. PW1 had said while

giving evidence on page 134 under cross examination said:-

"The statement of 1st Accused dated 1st April, 2010,

is in respect of another case."

I am of the firm opinion that the Appellant has no locus

standi to query or challenge the failure of the prosecution

to tender statement made on 7th April by 1st Accused

person. The statement does not belong to the Appellant and

he has no right to put himself in the shoes of the said 1st

Accused. Appellant prefers to carry another person's load

on his head while dragging his own luggage on the ground.

It is the proverbial penny wise pound foolish. Just as the

content of that statement cannot bind him or aid his case

under Section 29 (4) of Evidence Act it is not in

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his stead to raise any issue concerning a co-accused

statement that was not tendered.

Again even if the statement belongs to the Appellant and it

was not tendered, the Appellant's right would be to call for

it and if the prosecution refused to produce it, he could

invoke Section 167 (d) of the Evidence Act against the

Prosecution. As it is now Section 167 (d) of the Evidence

Act is wholly irrelevant and not applicable. Section 125 of

the Evidence Act has no bearing on the strange facts

narrated by the Appellant Section 125 only states that "All

facts, except the contents of documents may be proved by

oral evidence. That is not the scenario created here by the

Appellant's own wishful thinking on matters that has

nothing to do with his appeal and defence. What is more,

PW1 categorically stated that the statement made on 7th

April, 2010 was in respect of another case. Head or tail the

Appellant is bound to lose issue 3 as it did not touch and

concerns him.

The Appellant under Issue four had also vigorously

contended that the failure to call Lamidi Yusuf and Madam

Sheria to testify was fatal to the prosecution's case in that

they are very vital witnesses.

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Under cross examination of PW1 by learned Counsel to the

1st and 2nd Accused persons PW1 said:-

"The 2nd accused person implicated the 1st Accused,

one Yusuf Lamidi, who lives in Enyinae, also told me

about the incident involving the accused. I believed

what he told me because he lives in that area. I did

not record the statement of that Yusuf Lamidi.

We went to see one Madam Sheria but she was not

around. (Page 135 of the record) he said Two people

told me during investigation that 2nd Accused was

involved in the killing the deceased and these people

are 1st Accused person and Yusuf Lamidi. I did not

take statement of Yusuf Lamidi." I did not take the

statement of Yusuf Lamidi. I did not record any

statement from any other person in respect of this

case."

The record shows that the Police did not arrest the said

Lamidi Yusuf and Madam Sheria and they were not listed

as Prosecutions witnesses. See pages 39 and 40 of the

record of appeal. Again from the evidence given by the

PW1 there is nothing tangible the two persons could have

said to exonerate the Appellant since no statement was

obtained from them. Section 167 (d) of the Evidence Act

does

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not apply to failure to call a witness by the Prosecution but

failure to tender or produce documentary evidence or

exhibits that are relevant to the criminal proceedings. See:-

IDOKO OCHANI V THE STATE (2017) 18 NWLR

(PART 1596) 1 AT 31 E-G per KEKERE-EKUN, JSC

who said:-

"As regards failure of the prosecution to call the

person named by PW1 as being present at the scene

and the invitation to the Court to invoke the

provisions of Section 167(d) of the Evidence Act

against the Respondent, the two lower Courts have

correctly stated the position of the law that the

prosecution is not bound to called every witness listed

on the proof of evidence if it is satisfied that the

witnesses called are sufficient to discharge the onus

of proof beyond reasonable doubt. It is pertinent to

observe that Section 149(d) of the Evidence Act (now

Section 167(d)) relates to evidence that is withheld

and not the fact that a particular witness was not

called. See Oguonzee v The State (supra) at page 229

B-F. The Appellant was also at liberty to call witness

not called by the prosecution."

See also Section 36(6)(d) of the 1999 Constitution of

Nigeria

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as amended which provides:-

"36(6)(d) Every person who is charged with a criminal

offence shall be entitled to: -

(d) examine, in person or by his legal Practitioners,

the witnesses called by the prosecution before any

Court or Tribunal and obtain the attendance and

carry out the examination of witnesses to testify on

his behalf before the Tribunal on the same conditions

as those applying to the witnesses called by the

prosecution."

It is the prerogative of the prosecution to call any witness it

desires or believes can sustain the charge against an

accused person. See DAVID AMADI V. AG IMO STATE

(2017) 6 SCM 37 AT 461-G per EJEMBI EKO, JSC who

said:-

"The prosecution, where there is no requirement of

corroboration as a matter of law, does not need to call

a host of witnesses once the credible evidence of a

single witness proves all the ingredients of the

offence charged. There would only be need to call

more witnesses whose evidence would sway the Court

if and only if, the available evidence does not

conclusively prove the ingredients of the offence

charged. The Appellant’s counsel had called in aid the

STATE V. AZEEZ & ORS.

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(2008) 14 (Pt. 1108) 451, also reported elsewhere as

(2008) 4 SC. 188; (2008) 3 FWLR 4567 SC, (2008)

8 SCM, 175 as booster to his submission that if all the

vital or material witnesses are not called by the

prosecution the case is doomed to fail. I am afraid

this does not represent the ratio decidendi of the

State v. Azeez (supra). The decision of this Court on

this point, per M. D. Muhammad, JSC in the State v.

Azeez (supra), is that in discharge of the burden of

proving a crime beyond reasonable doubt placed by

Section 138 (1) of the Evidence Act 1990 (now Section

135(1) of the Evidence Act, 2011):

"It is the duty of the prosecution to see that it places

before the trial Court all available relevant evidence.

This may not mean that a whole host of witnesses

must be called upon (on) the same point, but it does

mean that if there is a vital point in issue and there is

one witness whose evidence would settle it one way or

the other, that witness ought to be called."

The "Judge" of whose evidence establishes or proves

that vital point is the prosecutor. The Court will not

usurp that function of the prosecutor. All the Court,

as the final arbiter, interested in is whether

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the available evidence proves the vital point."

Issue 3 and 4 are hereby resolved against the Appellant.

Now to issues 1 and 6.

1. Whether the Trial Court was right when it held that

the Prosecution has proved the offence of culpable

homicide punishable with death as require by law as

to warrant the conviction of the Appellant? (Covers

grounds 2, 3, 5, and 7 of the Notice of Appeal).

6 Whether the Trial Court properly evaluated the

evidence and Exhibits A and D before it as required by

Law before it relied on the said Exhibits to convict the

Appellant? (Ground 4 and 6 of the Notice of Appeal)."

The learned Counsel to the Appellant submitted under

issue 1 that the standard of prove required of the

prosecution is prove "beyond reasonable doubt". That all

material allegations of fact in support of the charge must

be proved by prosecution and that the onus never shifts. He

relied on the cases of OMOTOLA V THE STATE (2008) 2

FWLR (PT. 418) 2196 and UDOSEN VS THE STATE

(2007) 4 FWLR (PT. 388) 5721. He also relied on

Section 135 of the Evidence Act 2011. That the prosecution

did not present any single legally admissible evidence in

this case.

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That the Court should expunge all inadmissible evidence

and discharge and acquit the Appellant.

That PW1 and PW2 called by the prosecution who were

investigating Police Officer did not make statement and no

other witnesses testified. That failure of the prosecution to

attach the statements of PW1 and PW2 to the proof of

Evidence rendered their entire evidence a nullity. He relied

on the case of OHWOVORIOLE VS FRN (2003) 2 NWLR

(PT. 803) 176 AT 189 per KALGO, JSC and M. GBOKO

& ORS VS THE STATE (2007) LPELR - 8300 (CA).

The learned Counsel also complained about Exhibits D and

D1 which he said was made and recorded through an

interpreter. That the interpreter was not called to identify

the alleged confessional statement or give evidence as laid

down by law. He re l ied on the cases of FRN V

MOHAMMED USMAN (2012) ALL FWLR (PART 632)

1639 AT 1652 C - G and NWAEZE V THE STATE

(1996) 2 NWLR (PT. 428) 1 AT 20. He urged that

Exhibits D and D1 should be expunged from the record.

The learned Counsel to Appellant went extensively in his

submission to castigate Exhibit A. I have dealt with Exhibit

"A" exhaustively under Issues 3 and 4 and it will be a

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stupendous waste of time to deal with it here again. Exhibit

"A" is not the statement made by the Appellant.

That there was no credible evidence concerning the

identity of the deceased called TANDI. That the Evidence of

PW1 and PW2 did not prove the existence of the deceased.

That there is no facts tendered about the deceased by PW1

and PW2. That this is fatal to prosecutions case. He relied

on the PEOPLE OF LAGOS STATE V UMARU (2014)

ALL FWLR (PT. 737) 658 AT 686 - 687 BH

That there are contradictions which are material in

prosecutions case. That the charge for culpable homicide

charged by the prosecution referred to the deceased as

TANDI whereas PW1 described the deceased as OTANDI of

OKENE.

That the prosecution did not controvert the evidence of the

Appellant that he did not know OTANDI and that Appellant

was also not contradicted on his evidence that he did not

make Exhibit D.

That a lot of doubts were created by the Prosecutions on

the submissions made and he urged this Court to resolve

the doubts in favour of the Appellant. That the cause of

death was not established by the prosecution. That there

was no corroboration that OTANDI was burnt after he was

shot.

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That the trial Court speculated on the case of death of the

said OTANDI. He relied on the cases of GODWIN

IGABELE VS STATE (2006) LPELR 1441 SC and SULE

AHMED (ALIAS EZA) VS THE STATE (2002) ALL

FWLR (PT. 90) 1358 AT 1372 C - D.

That the prosecution tendered FRN Rifle Exhibit B and

Balisticians Report Exhibit C. That the Appellant denied the

recovery of the Rifle from him. That the PW1 did not state

from where he recovered the Rifle. That PW2 alleged it was

recovered from Appellant. That PW2 was not in the team

that recovered the Rifle. That the prosecution did not carry

out forensic finger print examination on Exh. B and this

shows the innocence of the Appellant. He relied on COP

VS UDE (2010) LPELR 8599 CA per ABOKI, JCA.

That the 3rd ingredient of the offence of culpable homicide

punishable with death was not proved since they failed to

prove the second ingredient of the offence. That the three

ingredients must do exist and where one is absent the

charge is not proved. He urged the Court to hold that the

Respondent has failed to prove the charge beyond

reasonable doubt. He relied on FELIX NWOSU VS THE

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STATE (1986) LPELR-2134 SC P. 20. Per ANIAGOLU,

JSC.

On Issue 6, the learned Appellant Counsel stated the

principles relating to evaluation of evidence and the vied

for lower Court to ensure that a criminal charge is proved

beyond reasonable doubt. That the Court must put the

totality of the evidence on an imaginary scale and

determine which one is more qualitative and had probative

value. He relied on the cases of FRN V IBRAHIM and

ANOR (2013) LPELR- 2423 CA and BOY MUKA V THE

STATE (1976) 10 - 11 5C 365 325 - 326 (sic).

That the lower Court failed to consider the defence put up

by Appellant. He again contended under this issue 6 that

the trial Judge relied on Exhibit A to convict the Appellant.

That the trial Judge wrongfully shifted the onus of proof on

the Appellant. That exhibit D was wrongfully admitted in

evidence as no interpreter was called to testify. That the

learned trial Judge failed to carry out proper evaluation of

Exhibits A and D and the evidence of PW1 AND PW2

thereby resulting in miscarriage of justice.

That the trial Judge contradicted himself in that he held

that there was no common purpose to ground conspiracy

in

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Exhibits A and B and yet found them guilty of culpable

homicide punishable with death. That it is fatal to

prosecutions case. That in attaching probative value to

Exhibits A and D the trial Judge failed to evaluate the

retraction of the Exhibits by the Appellant and his co-

accused. He urged the Court to resolve the issue in favour

of the Appellant and allow the appeal.

In his reaction to the above submissions the learned

Ag. Deputy Director for the Respondent agreed that the

onus of proof is always on the prosecution to establish the

guilt of the Accused. He relied on MUSA V THE STATE

(2007) 11 NWLR (PT. 1045) 202 AT 204 - 205. He also

conceded the essential ingredients of the offence charged

that must be proved citing:-

1. STATE V OGBUBUNJO (2001) 1 SC (PT. 1) 90 AT

94.

2. IDOWU VS THE STATE (2000) 7 SC (PT. 11) 50 AT

79 -80.

He submitted that the Respondent proved the death of the

deceased beyond reasonable doubt. That PW1 and PW2

both testified before the lower Court and the outcome of

their investigations revealed that the deceased was killed

by the Appellant and his cohorts. That the evidence on

record shows that they were together with the deceased

when

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deceased received a phone call suspected to be a call from

a rival group...That Exhibit "D" shows they chased the

decease, shot him in the chest and burnt him to ashes.

That the death of the deceased was no doubt caused by the

Appellant and cohorts. He also relied on Exhibit "D". That

there is no better or stronger evidence than a person's

admission or confession. That it is the highest and most

satisfactory. That the Court can conveniently rely upon it to

convict its maker. He relied on the cases of:-

1. DIBIE VS THE STATE (2007) 9 NWLR (PT. 1038)

30 AT 51 A - B;

2. NWACHUKWU V STATE (2007) 17 NWLR (PT.

1062) 31 AT 65 - 66 H-A.

3. AKPA V THE STATE (2007) 9 NWLR (PT. 1019) 500

AT 524F - G.

That the second ingredient if the charge was also

established. That Appellant said in Exhibit "D" that he

aimed at the deceased and shot him. He also submitted that

the law is that a person intends the natural consequences

of his act. He relied on the case of GARBA VS THE STATE

(2000) 4 SC (PT. 11) 157 AT 163. That the moment the

prosecution establishes an intention to cause grievous

bodily hurt, the charge a conviction w ill be sustained.

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On the contention of the Appellant that there was no eye

witness he submitted that the guilt of an Accused can be

established by an eye-witness account or circumstantial

evidence or by confessional statement. He again relied on

Exhibit "D". On failure to attach written statements of

prosecution witnesses, the Respondent's learned Counsel

submitted that criminal action can be instituted under

Sections 167 and 185 of the Criminal Code. That the

Prosecution complied with the law relating to institution of

criminal prosecution in this case. That in this case the

precis of evidence to be given by prosecution's witnesses as

summarized on prosecution's application to prefer the

charge against the Accused and his co-accused met the

requirements of the law pertaining to extra judicial

statements of witnesses. He relied on the case of FRN VS

WABARA (2013) 5 NWLR (PART 1347) 331 AT 349-

350H-A.

He also submitted that Appellant ought to have raised the

objection timeously before the commencement of trial. He

relied onATTAH V STATE (2010) 10 NWLR (PT. 1201)

190 AT 210 D - C.

On the issue of cause of death, the Respondent's learned

Counsel submitted that where,

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in homicide cases, cause of death is obvious as in the

instant case medical evidence ceases to be of practical

legal necessity. He relied among other cases the following:-

1. SUNDAY ULUEBEKA VS THE STATE (2000) 4 S.C.

(PT. 1) 203 AT 212 and JEREMIAH V THE STATE

(2012) 14 NWLR (PART 1320) 248 AT 254-6.

That where the body of deceased is not found, the accused

could still be convicted for murder as in this case relying on

the case of UDO V STATE (2011) 11 NWLR (PT. 1259)

472 AT 499 C-E; and NWACHUKWU V STATE (2002)

12 NWLR (PT. 782) 543 AT 548.

He concluded his submissions by urging this Court to hold

that the ingredients of the offence of culpable homicide

punishable with death contrary to Section 221 (b) of the

Penal Code have been adequately proved beyond

reasonable doubts.

It is beyond argument that the burden and standard of

proof in any criminal proceedings is squarely on the

prosecution. This is statutorily provided in Section 135 (1)

(2) and (3) of the Evidence Act 2011 as follows:-

"135(1) of the commission of a crime by a party to any

proceedings is directly in issue in any proceeding civil

or criminal, it must be proved beyond reasonable

doubt.

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(2) The burden of proving that any person has been

guilty of a crime or wrongful act is subject to Section

139 of this Act, on the person who asserts it, whether

the commission of such act is or is not directly in

issue in the action.

(3) If the prosecution proves the commission of a

crime beyond reasonable doubt the burden of proving

reasonable doubt is shifted on the defendant."

This must be read along with Section 36 (5) of the

Constitution of the Federal Republic of Nigeria (1999) as

amended which says:-

"36(5) Every person who is charged with a criminal

offence shall be presumed to be innocent until he is

proved guilty. Provided that nothing in this Section

shall invalidate any law by reason only that the law

imposes upon any such person the burden of proving

particular facts. -

Thus the prosecution is under a duty to proof all the

components or elements of the offence for which the

Accused/Defendant is charged. This can be proved vide any

of the following methods viz:-

(a) By evidence of an eye witness or witnesses;

(b) Through the confessional statement of the accused or

Defendant;

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(c) Through circumstantial evidence. See the cases of:-

1. SHUAIBU ABDU VS THE STATE (2017) 7 NWLR

(PART 1564) 171 AT 186 F- H per SANUSI, JSC who

said:-

''In all criminal cases the burden of proof squarely

lies on the prosecution which always has a duty to

prove all the above mentioned ingredients of the

offence charged and by the provisions of Section 138

of the Evidence Act, the standard of such proof is

nothing less than proof beyond reasonable doubt. In

fact, it is settled law that if there is any doubt in the

evidence produced by the prosecution such doubt

shall be resolved in favour of the accused person . See

Famakinwa v. The State (2013) 7 NWLR (Pt. 1354)

597; Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1;

David Abaje v. The State (1976) All MLR 139. It is

apposite to say that in order to prove an offence the

prosecution can use any of the following modes of

proof namely:-

(1) Evidence of eye witness or witnesses; or

(2) Confessional statement of the accused; or

(3) Through circumstantial evidence.

2. S. S. YONGO & ANOR VS COP (1992) 8 NWLR

(PART 257) 36 AT 50 per KUTIGI, JSC later CJN RTD.

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In effect all the elements of an offence including that of

Culpable Homicide punishable with death can be proved or

established by direct or circumstantial evidence. It can also

be proved by the confessional statement of the Accused or

the Defendant. See:-

1. OKON ETIM AKPAN V THE STATE (2016) 8 SCM 1

AT 7 F -G per PETER-ODILI, JSC who said:-

"In reiteration of what is now trite to establish the

culpability of an accused in proof of a crime, anyone

of the following means is acceptable, that is: -

Direct evidence also known as evidence of eye-witness

or witnesses;

Confessional statement of the accused person;

Circumstantial evidence. See Emeka v State (2002) 32

WRN 37 or (2006) 6 SCNJ 259."

What then are the ingredients of the offence of culpable

homicide punishable under Section 221 (a) of the Penal

Code Law.

By the said Section of the Penal Code Law, an offence of

Culpable Homicide punishable with death is committed

when a person does an act with the intention of causing

death or grievous bodily injury which is likely to cause the

death of another human being and which to his knowledge

may result in grievous bodily harm or death and yet embark

on the

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dastardly act. I can do no better than to draw strength from

decisions of the apex Court in the land. Suffice to refer to

the cases of:-

1. IREGU EJIMA HASSAN VS THE STATE (2017) 5

NWLR (PART 1557) 1 AT 33 G-H TO 34A - b per

RHODES-VIVOUR, JSC who said:-

"Culpable homicide is defined in Section 220 of the

Penal Code.

It reads:

"220. Whoever causes death-

(a) by doing an act with the intention of causing

death or such bodily injury as is likely to cause death,

or

(b) by doing an act with the knowledge that he is

likely by such act to cause death, or

(c) by doing such a rash or negligent act, commits the

offence of culpable homicide.

In Smart v. State (2016) 1-2 SC (Pt. II) p. 41, (2016) 9

NWLR (Pt. 1518) 447 at page 479-480, paras H –A, I

explained proof beyond reasonable doubt thus:

"Proof beyond reasonable doubt does not mean proof

beyond all doubt, or all shadow of doubt. It simply

means establishing the guilt of the accused person

with compelling and conclusive evidence. A degree of

compulsion which is consistent with a high degree of

probability."

To succeed in a charge of culpable homicide under

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Section 221 of the Penal Code, the prosecution must

prove the following beyond reasonable doubt

(a) that the person the accused person is charged of

killing actually died;

b) that the deceased died as a result of the act of the

accused person:

c) that the act of the accused person was intentional

and he knew that death or body harm was its likely

consequence.

See State v. John (2013)1 NWLR (Pt. 1368) p. 377.

2. SHUAIBU ABDU Vs THE STATE (2017) 7 NWLR

(PART 1564)171 AT 186 D - E per SANUSI, JSC who

said:-

“The charge the accused/appellant stood trial on is

culpable homicide punishable with death, contrary to

Section 221(b) of the Penal Code. The ingredients of

the offence that of necessity, must be proved by the

prosecution in order to obtain conviction are: -

(a) That death of a human being was caused:

(b) That such death was caused by the accused

Person.

(c) That the act that led to the death of the victim was

intended to cause death or grievous hurt or that the

accused knew or had reason to believe that by his

action, death will be the probable and not only likely

consequence of his."

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I am of the firm view that the pieces of evidence given by

the two prosecution witnesses who are Police Officers

actively involved in the arrest of the Appellant and

investigation of the offence of culpable homicide which the

Appellant was charged sufficiently linked the Appellant

with the high involvement of the Appellant in the shooting

and killing of the deceased.

The confessional statement of the Appellant exhibits "D"

and "D1" bear eloquence testimony to the facts that the

charge against the Appellant and his co-accused is well laid

and founded. The prosecution is right. The Appellant

profusely and voluntarily confessed to his active

participation in the killing of the deceased one "OTANDI".

He. gave detailed or elaborate incidents and events leading

to the killing of the deceased. It stemmed out of the fact

that the Appellant and his gang of murderers perceived

that the deceased was exposing their crimes and

commission of offences at Okene axis to a rival criminal

group and law enforcement agencies. The Appellant gave

vivid description of how he and his cohorts in crime killed

and murdered the said OTANDI. The Appellant though

represented by Legal Practitioner

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allowed the statement to be admitted without any objection

to its admissibility as all he told the Court was that the

statements Exhibits D and D1 were not his own. In such a

situation the trial Judge would be perfectly entitled to

admit the confessional statement in evidence and decide

later if truly the statement could be linked with the

Accused. In this case the evidence of prosecution witnesses

and Exhibits "D'' and "D1" graphically and vividly show that

the Appellant was and he is the maker of those exhibits and

the lower Court was right in finding that Appellant made

the statements and that all the ingredients of offence of

culpable homicide for which Appellant was charged along

with his co-accused encapsulated all the elements of the

offence of culpable homicide. It is too late in the day for the

Appellant to be crying wolf where there is none. He cannot

extricate himself from the clutches and shackles of the

confessional statement Exhibits D and D1 respectively. The

statements met, squarely, the requirements postulated in

the case of R v SYKES supra. The feeble attempt of the

Appellant to wriggle out of the stark reality and

consequence of his

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confession is a mere afterthought.

The fact that an accused resiled or retracted from his

confessional statement is not an impediment in the way of

the trial Court. The trial Court is free to convict on the

retracted confession once it is properly admitted and the

trial Judge is satisfied as in this case that the confessional

statement was voluntarily made. The learned trial Judge

lawfully and legally relied on Exhibits "D" and "D1" in

convicting the Appellant of culpable homicide. All the

ingredients of the offence of culpable homicide were

proved and established to the hilt against the Appellant.

See:-

1. OLUSANYA ONITILO VS THE STATE (2018) 2

NWLR (PART 1603) 23 AT 257 F - H TO 258A per

KEKERE-EKUN, JSC who said:-

"My lords, it is the settled position of the law that the

burden of proof in a criminal trial lies on the

prosecution throughout and does not shift. The

accused person enjoys a constitutionally guaranteed

presumption of innocence. It is the duty of the

prosecution to rebut the presumption. Furthermore,

it is an onerous burden, as the Standard or Proof

required is proof beyond reasonable doubt. Igbi v. The

State (2000) 3 NWLR

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(Pt. 648) 169; Amala v The State (2004) 12 NWLR (Pt

888) 520; Amadi v. FRN (2008) 12 SC (Pt. 111) 55;

(2008)18 NWLR (Pt. 1119) 259. The stardard of proof

is not Proof beyond all doubt or beyond a shadow of a

doubt. The doubt must be reasonable. It is not

sufficient to raise an improbable doubt or a slight

doubt or an unlikely doubt or a doubt, which is not

supported by credible evidence. See: Bakare v. The

State (1987) 1 NWLR (Pt. 52) 579@588 C - E; The

State v. Oladotun (2011) LPELR-3226 (SC); (2011) 10

NWLR (Pt. 1256) 542; Salawu v. The State (2009)

LPELR-8857 (CA).

It is equally well settled that the guilt of an accused

person may be established in one of three ways, that

is to:

1. By direct evidence of witnesses;

2. By Circumstantial evidence; and

3. By reliance on the voluntary confessional

statement of the accused.

See: Bello Okashetu v. The State (2016) LPELR-40611

(SC); (2016) 15 NWLR (Pt. 1534) 126; Stephen v. The

State (2013) vol. 223 LRCN (Pt. 2) 215; (2013) 8

NWLR (Pt. 1355) 153; Oguonzee v. The State (1998)

58 LRCN 3512 @ 3551; (1998) 5 NWLR (Pt. 551) 521;

Akwuobi v. The State (2016) LPELR -41389 (SC),

(2017) 2

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NWLR (Pt. 1550) 421."

On whether the learned trial Judge properly evaluated the

evidence and exhibits A and D before the Appellant was

convicted, I have held that Exhibit "A" has no relevance to

the Appellant as he did not make the statement Exhibit "A".

All arguments on Exhibit A are discountenanced.

When it comes to evaluation of evidence, it is settled that

ascription of probative value to evidence and appraisal of

oral evidence is primarily the duty of trial Court who saw

and observed the demeanour of witnesses while testifying

before the trial Court. This Court will not lightly interfere in

the findings of a trial Court on oral/ documentary evidence

of witnesses unless the Appellant can show miscarriage of

justice. See OWOLABI KOLADE V. THE STATE (2017) 4

SCM 46 AT 871 TO 88 A - D per GALINJE, JSC who

said:-

''I wish to state clearly that assessment and/or

appraisal of oral evidence and ascription of probative

value to such evidence is the primary duty of the trial

Court. An Appellate Court has no jurisdiction to

interfere with that duty unless there are special

c i r c u m s t a n c e s t h a t w a r r a n t s u c h

interference. Learned counsel for the Appellant

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has accused the lower Court of failing to evaluate the

evidence of the prosecution and the defence by the

trial Court. Has he shown any special circumstances

that would warrant such interference? In Eyo v

Onuoha (2011) 11 NWLR (Pt. 1257) 1 at 38 - 39

paragraphs G - A, this Court per Tabai JSC said: -

"It is settled principle of law that the duty of

evaluation of evidence is pre-eminently that of the

trial Court which alone has the benefit of seeing and

hearing witnesses in the course of the testimonies; it

is the trial Court that has the singular benefit of

watching the demeanour of witnesses in the course of

their testimonies ...

As a general rule therefore, an Appellate Court would

not disturb the findings of a trial Court unless it is

proved that the findings are not supported by the

evidence on record and therefore perverse. This is

because of the Appellate Court's disadvantage of not

having seen or heard the witnesses".

2. M. E. BROWN & ANOR V THE STATE (2017) 4

NWLR (PART 1556) 341 AT 373 D - H TO 374 A per

SANUSI, JSC who said.-

"On evaluation of the evidence adduced before the

trial Court, I am also convinced that the learned trial

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judge had painstakingly; evaluated the evidence

adduced before him in this case before reaching his

conclusion that the offences were proved beyond

r e a s o n a b l e d o u b t a g a i n s t t h e m b y t h e

prosecution/respondent.

I have calmly read the record of proceedings, the

arguments contained in the Appellant's Brief, Respondent's

Brief of Argument and Appellant's Reply Brief of Argument

and I have no doubt in my mind that the lower Court

assiduously assessed and evaluated the oral and

documentary evidence before it and it clearly and justly

came to the right conclusion against the Appellant. The

findings of the learned trial Judge cannot be faulted.

Issue 6 is resolved against the Appellant.

In the result, the Appellant's appeal is lacking in merit and

it is hereby dismissed in its entirety. The judgment of the

KOGI STATE HIGH COURT (Coram: OTU, J.) delivered on

20th day of April, 2012 wherein the Appellant was

convicted of Culpable Homicide punishable with death and

sentence of death imposed on the Appellant, is hereby

affirmed.

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TINUADE AKOMOLAFE-WILSON J.C.A.: I read in draft

the Judgment just delivered by my learned brother, P. O.

Ige, JCA. I am in agreement with the reasoning and

conclusion and orders reached therein.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of

the judgment just delivered by my Learned brother, PETER

OLABISI IGE, JCA. I agree with the reasoning, conclusions

and orders therein.

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Appearances:

A.G. WILLIAM WOBODO For Appellant(s)

BADAMA KADIN (AG. DEPUTYDIRECTOR, MOJ, KOGI STATE) with him,YAKUBU SULEMAN - LEGAL OFFICE MOJ, KOGISTATE For Respondent(s)

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