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‘Person Seen Last With Deceased Bears Full Responsibility For His Death’

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FACTS
This is a substantive appeal not interlocutory (as described in the Introduction of the respondent’s brief). It is against the Judgement of the Court of Appeal, Sokoto Division in Appeal No. CNS/20C/2013 delivered on 28 March, 2014 which affirmed the conviction of the appellant for the offence of culpable homicide punishable with death by the Sokoto State High Court. The appellant was sentenced to death by hanging on 25 June. 2012 by Abass J. (as he then was) in Charge No. 55/1802010. The facts leading to this appeal are as follows:
On 22 November 2009, which was a Sunday and lllela market day, the appellant went to the deceased’s house thrice to look for him but did not meet him. On the 3rd occasion PW4 who is the deceased wife asked him why he was looking for her husband and he answered that someone wanted the deceased to use his camel to carry goods. On the fourth visit, the appellant met the deceased and they went out together on the camel. PW6 saw the appellant riding on the camel with the deceased. The deceased did not return to his house and an alarm was raised. On the next day which was Monday, PW5 who is a nephew of the deceased went in search of him and found his corpse in Wauru and the camel was nowhere to be found. He then reported the matter to the Police and his friend also informed some influential people in the community. He was one of those who accompanied the police in a vehicle to the scene where the corpse lay and they carried it to the village and later to the hospital where autopsy was carried out before the body was released for burial. In the course of the investigation PW3 recorded the-appellant’s statement in Hausa which he later translated into English. The statement recorded in Hausa and its English translation were tendered and admitted as Exhibits E and E1 respectively. Exhibit E turned out to be confessional statement but the appellant who testified as DW1 denied knowledge of anything. He said he was at his place of work when the Police went and arrested him and took him to Gada Local Government Secretariat and from there to the Police Station located in the Local Government without informing him about any offence. He said he was beaten while protesting his innocence about the offence. As a result of the beating he received some injuries. He was so manhandled that he could not remember what he said. He denied knowing the 2nd accused or that he went looking for the deceased. He also told the court that he did not volunteer any statement to the Police. When he was cross-examined about the deceased, he said it was in the Police Station in Gada Local Government that he heard about the deceased’s name and that he never knew him before. He said he had never met PW4 and it was only in court that he knew her.

The learned trial Judge considered the evidence presented to the court and found that the evidence against the accused was circumstantial and reasoned that since the deceased was last seen alive in the company of the 1st accused, the 1st accused had explanation to give as to what led to the death of the deceased and in the absence of such explanation, the court would be justified to draw the inference that he was the one who killed the deceased. The trial court convicted and sentenced all the accused persons to death based on their confessional statements for which corroboration was found in the evidence of the prosecution witnesses. Each of them was given 5 years imprisonment with hard labour for the robbery offence.
The appellant appealed to the Court of Appeal Sokoto and it was dismissed. He felt aggrieved and further appealed to this Court.
ISSUES FOR DETERMINATION
1. Whether in view of the contradiction between the retracted confessional statement of the appellant and the testimonies of the prosecution witnesses allegedly corroborating same, the court below was right to have affirmed the decision of the trial court? Ground 1
2. Whether the decision of the lower court that the prosecution successfully proved beyond reasonable doubt that the appellant is guilty of conspiracy, murder and robbery to warrant his conviction and sentence to death by hanging is supportable by the evidence adduced at the trial.
3. Whether the lower court was correct to hold that the circumstantial evidence before it was sufficient to establish the conspiracy to commit alleged offences when the same was not proved?

ARGUMENTS
The hub of the arguments of learned counsel of the appellant in attacking the decision of the lower court which dismissed the appeal and affirmed the judgement of the learned trial Judge, Abass .l. (as he then was) centers around the conviction being based on the retracted confessional statement which lacked independent corroboration since PW 4 and PW6 were closely related to the deceased and could not be said to have given unbiased evidence connecting the appellant with the offences for which he was convicted and sentenced. Learned counsel argued that the confessional statement, Exhibit E and the English translation Exhibit E 1 was challenged both at the point of tendering and during the appellant’s testimony and contended that the learned trial court ought to have made a finding as to whether in the circumstances the confessional statement was indeed made by the appellant. Learned counsel submitted that where a confessional statement had been retracted the statement must be corroborated to be able to sustain a conviction and referred to Aremu & Anor v. State (1991) & NWLR (Pt. 201) 1 at 21-22.

Learned counsel also cited Oseni v. State (2012) 5 NWLR (Pt.1293) 351 at 374 where this court per Ngwuta JSC reiterated that before a conviction based on a confessional statement is upheld it must pass satisfactorily the six tests that have been applied to ensure that there are other facts outside the statement that go to show that the confession was probable. It was submitted by learned counsel that the prosecution failed to prove beyond reasonable doubt that the deceased died and furthermore the prosecution could not sufficiently fix the act or intention of killing the victim on the appellant as no nexus has been created between the appellant and victim of the crime. On the issue of conspiracy, learned counsel for the appellant argued that the appellant cannot be convicted when other co-accused have been discharged and acquitted. He submitted in paragraph 46 page 18 of the appellant’s brief that “the persons charged alongside the appellant at the court below viz: Bello Ibrahim vide judgement of 30 June, 2014 in Appeal No. CA/S/ZIC/2013 and Ibrahim Dan Auta vide judgement of 30 June, 2014 in Appeal No. CA/S/ZZC/2013 delivered by same Sokoto Judicial Division of the Court of Appeal had all been discharged and acquitted of the offence for which the appellant is said to have conspired with them to commit”.
He said it was fitting that this Honourable Court set aside the conviction for conspiracy in the circumstances.
Turning to the issue of the appellant being the person who was last seen with the deceased, learned counsel contended that it is not enough for the victim to have been last seen in the company of the appellant but that in addition there must be circumstantial evidence supporting the fact that within the period the appellant was with the victim he indeed killed him and that no other person could have intervened to kill the victim. He relied on the dictum of Ariwoola JSC in Madu v. State (2012) 15 NWLR (Pt. 1324) 405 at 447 where His Lordship expounded the principle thus: “The last seen theory, comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible”.

JUDGEMENT
In the instant case, the learned trial Judge after summing up the evidence led by the prosecution and defence found that there were no eye witnesses to the incidence that led to the death of the deceased but went on to consider PW6 evidence which was not controverted or discredited that he saw 1st accused with the deceased on a camel towards Wauru on the fateful day and was never found alive. He accepted and believed the evidence of PW6 to be true. He therefore held that in the absence of an explanation from the 1st accused, the court was justified to draw the inference the accused killed the deceased and so believed the evidence of PW4, PW5 and PW6 which remained uncontroverted. The learned trial Judge then took into account the extra judicial statements of the 2nd and 1st accused as to the role each of them played having made exhibits A, A1 and B, Bl. He reasoned that the confessional statements of the accused persons were not contested at the trial on their voluntariness but were retracted by the accused. It is settled law that a voluntary confession or statement of an accused is deemed to be relevant and admissible against its maker and not against another. See: Durugo v. The State (1992) 7 NWLR (Pt. 255) 524 at 541; lkemson v. The State (1989) 3 NWLR (Pt. 110) 455 at 476 and Solola v. State supra at p. 484.

Apart from the appellant who made Exhibit E and E1 where he admitted strapping the deceased to the ground and Ibrahim using a stick and knife to hit the deceased and thereafter cutting his neck, in the statement of the 2nd accused Ibrahim Bello, similar admission was made in Exhibit A, A1 wherein he slaughtered the deceased with the knife belonging to the appellant. The statement of the 3rd accused, lbrahim Dan Auta admitted as Exhibit B, Bl was not direct. He said that on 22/11/2009 at about 8 am he was in his house together with Bello lbrahim when Hayatu met them. He overheard Hayatu telling Bello lbrahim that they should meet in the bush along Wauru road and that he would come with one man with his camel. Bello and he then went to the bush and Hayatu met them with Dan Gwamma with his camel. lt was there Hayatu hit Dan Gwamma and he fell down. After Hayatu had slaughtered Dan Gwamma, he (Ibrahim Dan Auta) took the camel to Tuhur village where he sold it to one Umaru Aliyu at the cost of N70,000.00 but did not collect the money but gave N8,000.00 to Bello Ibrahim and Hayatu.
The inference that can be drawn is that the appellant and the other two accused persons conspired to rob the deceased of his camel and in the process, they killed him.
The lower court had acquitted and discharged Bello lbrahim and lbrahim Dan Auta because of absence of corroboration of their retracted statements and as a result learned counsel argued that the appellant could not be guilty of conspiracy. This argument is faulty. The doctrine of judicial precedent is dependent on settled judicial hierarchy. This is because under the doctrine, decisions of courts higher up in hierarchy are generally binding on lower courts in the hierarchy.

Since October, 1963, the Supreme Court of Nigeria became the highest court in the country. Stare decisis or judicial precedent according to Blacks Law Dictionary 9th Edition page 1214 defines stare decisis or judicial precedent to mean standing by things decided and the courts must follow earlier judicial decisions when the same points arise again in litigation. In National Electric Power Authority v. Onah (1997) 1 NWLR 1 (Pt. 484) 680 at 688 the term stare decisis was defined to mean to stand by your decision and the decisions of your predecessors, however wrong they are and whatever injustice they inflict. The Supreme Court is however not bound by the decisions of the lower courts but they are persuasive in nature. The premise under which the lower court allowed the appeals in Bello lbrahim v. State in Appeal No. CA/S/21/2013 and lbrahim Dan Auta v. State, Appeal No CA/S/22/2013 which were decided on 30 June, 2014 was that the corroboration needed to find Bello lbrahim and lbrahim Dan Auta guilty on their retracted confessions was lacking. 1f the evidence of PW5 and PW6 is properly analysed it provides the required corroboration. The injury which PW5 saw on the deceased neck makes the retracted confessional statement of Bello Ibrahim true; so also does the disappearance of the deceased’s camel corroborate the statement of Ibrahim Dan Auta. It is therefore not correct as the court below made the finding that evidence was lacking which would corroborate the retracted Exhibits A, A1 and Exhibit B, B1 thereby leading to the acquittal and discharge of the two people.
The appeal lacks merit and it is hereby dismissed. The decision of the lower court confirming the conviction and sentence imposed on the appellant by the court below is further affirmed by this Court. The appeal is hereby dismissed.

K. B. Akaahs Justice, Supreme Court

Representations:

F. Bomo Alabi with M. Yunusa for Appellant

Suleiman Usman (SAN), Hon. Attorney-General, sokoto State with Kabiru Haliru, Director Procurement Compliance, Sokoto State for Respondent.



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