Each case is only an authority for what it decides – SC

IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA Friday, February 26, 2016 Suit number: SC. 511/2014 Between UWUA UDO    –        Appellant  and THE STATE        –        Respondent   Suleiman Galadima, JSC; Mary Keego Peter-Odili, JSC; Clara Baja Ogunbiyi, JSC; Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC; Amiru Sanusi, JSC; Suleiman Galadima,JSC Judgement (Delivered by Kudirat Motonmori Olatokunbo […]

IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
Friday, February 26, 2016
Suit number: SC. 511/2014
Between
UWUA UDO    –        Appellant
 and
THE STATE        –        Respondent
 

Suleiman Galadima, JSC; Mary Keego Peter-Odili, JSC; Clara Baja Ogunbiyi, JSC; Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC; Amiru Sanusi, JSC; Suleiman Galadima,JSC
Judgement
(Delivered by Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC)

This is an appeal against the judgment of the Court of Appeal, Makurdi Division, delivered on 2nd May, 2014, affirming the judgment of the High Court of Benue State, holden at Makurdi delivered on 6/12/2006, which convicted the appellant of the offence of culpable homicide and sentenced him to death.
On 17/5/2006, the appellant was arraigned before the trial court on a two-count charge of criminal conspiracy and culpable homicide punishable with death contrary to sections 96 and 221 of the Penal Code. He pleaded not guilty to both counts.
The prosecution’s case was that on 28/7/2004, at Asase Village, North Bank, Makurdi, one Abu (still at large) lured the deceased, Msughter Iortyom, 3 years old, from his parent’s house, where he was playing with other children into an uncompleted building where the appellant was waiting with a knife. It was further alleged that the said Abu held the deceased down while the appellant slashed his throat with the knife and killed him. The corpse was left in the uncompleted building, where it was discovered by PW2, who then took PW1, the father of the deceased, who had been searching for the deceased, to the site. According to the prosecution, the appellant made a confessional statement, upon his arrest, wherein he confessed to his part in the crime and stated that the said Abu promised him a fee of N60,000 if he assisted in killing the deceased. The respondent called three witnesses and tendered exhibits, including Exhibits 4 & 5, the appellant’s confessional statements. The appellant testified in his own defence and did not call any other witness.
At the close of the trial, and after considering the written addresses of learned counsel, the trial court found the appellant guilty of the offences charged, convicted him and sentenced him to death.
His appeal to the lower court was unsuccessful, hence the instant appeal to this court.
At the hearing of the appeal on 3rd December 2015, WILSON DIRIWARI ESQ., leading YINKA ADENIRAN ESQ., adopted and relied on the appellant’s brief of argument filed on 4/9/2014 and urged the court to allow the appeal, set aside the judgment of the lower court and discharge and acquit the appellant. MRS. J.N, ADAGBA, Assistant Director Legal Drafting, Ministry of Justice, Benue State, adopted and relied on the respondent’s brief, which was deemed properly filed on 18/2/2015 and urged the court to dismiss the appeal and affirm the judgment of the lower court.
From the four grounds of appeal contained in the notice of appeal filed on 13/3/2014, the appellant framed 3 issues for determination. They are:
1.    Whether it is the original or Certified True Copy of Exhibit 5 (that is, the appellant’s alleged confessional statement to the Police), being a public document that is admissible in evidence under the Evidence Act, 2011.
2.    Whether the defence of alibi raised by the appellant, but was not properly considered by the courts below, would avail the appellant,
3.    Whether if this honourable court agrees with our contention under Issue one above, to the effect that it is only a Certified True Copy of Exhibit 5 and not the original that is admissible in law, the respondent herein has proved the guilt of the appellant beyond reasonable doubt, with cogent, credible and compelling evidence as required under Nigerian criminal jurisprudence to secure the conviction and sentence of the appellant.
The respondent, on its part, formulated two issues for determination.
As the issues formulated by both parties are substantially the same, I shall determine the appeal on the issues formulated by the appellant. I however re-couch Issue 3 to read:
Whether the respondent proved the guilt of the appellant beyond reasonable doubt.
Issue 1
For ease of reference, I deem it appropriate to set out the provisions of Sections 85, 86, 87 (1), 88, 89 (1) (e) & (f), 90 (1) (c), 102 (a) (iii), 103, 104 (1), (2) &.{3) and 105 of the Evidence Act, 2011.
There is no doubt that Exhibit 5, which forms part of the official acts of the police, is a public document within the meaning of Section 102 (a) (iii) of the Evidence Act.
The law has always been that the best evidence of the contents of a document is the document itself produced for the inspection of the court. See: Fagbenro Vs. Arobadi (2006) 7 NWLR (Pt. 978) 172
It is also the law that the only admissible secondary evidence of a public document is a certified true copy thereof. In Araka Vs Egbue (2003) 17 NWLR (Pt. 848) 1 @ 18 D – E, Tobi, JSC while interpreting Section 97 (2) (c) of the Evidence Act Cap.112 LFN 1990 (now Section 90 (1) (C) of the Evidence Act, 2011), held thus:
“It is clear from the provision of Section 97 (2) (c) that the only `acceptable secondary evidence of public document is a certified true copy of the document. The subsection has put the position precisely, concisely and beyond speculation or conjecture by the words ‘but no other kind of secondary evidence is admissible.”
Per Edozie, JSC @ 26 C – G (supra):
“Guided as I am by the principles enunciated in the above cases [on the golden rule of interpretation of statutes] it is my view that section 97 (2) (c) of the Evidence Act (supra) does not admit of any ambiguity. The language is clear, explicit and categorical, that the only admissible evidence to prove the existence, condition and contents of a public document is a certified true copy of the original and no other type of secondary evidence is admissible.’’ (Emphasis mine)
See also: Iteogu Vs LPDC (2009) 11-12 (Pt.l) SCM 47; Kubor Vs Dickson (2012) LPELR-9S17 (SC) @ 51 D – G; Omisore Vs Aregbesola (2015) 15 NWLR (Pt,1482) 205 @ 294 H.
I have given careful consideration to the authority of Tabik Investment Ltd. & Anor. Vs Guaranty Trust Bank Plc. (supra), the judgment of this court in a civil suit, relied upon by learned counsel for the appellant. It is important to bear in mind that the decision of a court must always be considered in the light of its own peculiar facts or circumstances. No case is identical to another, though they may be similar. Thus each case is only an authority for what it decides, and nothing more. See: Skye Bank Plc. & Anor. Vs Chief Moses Bolanle Akinpeju (2010) 9 NWLR (Ptll98) 179; Okafor Vs Nnaife (1987) 4 NWLR (Pt64)129.
The Issue that arose in that case was the admissibility of documents purportedly certified but not certified in full compliance with the provisions of Section 111 (1) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria (LFN) 1990. The documents tendered before the trial court from the custody of the Police were purported to be certified true copies of the originals.
 However no legal fees were paid for the certification. The contention of the plaintiffs/appellants was that since the witness who tendered the documents was a police officer, he need not pay for the certification of the documents. This court held that in the certification of documents, all the conditions contained in Section 111 of the Evidence Act are mandatory and must be complied with, to wit, that is:
i. the necessary fees must be paid for certification;
ii.    there must be an endorsement or certificate indicating that it is a true copy of the document in question;
iii.    the endorsement or certificate must be dated and signed by the officer responsible for the certification with his name and official title.
The court further held that the lower court rightly held that failure to pay the legal fees amounted to non-compliance with the provisions of the Evidence Act. It concluded however that the lower court was wrong to have expunged the documents and ought to have ordered the plaintiffs to pay the necessary fees. I am of the considered view that the facts of the case as stated above are distinguishable from the facts of this case.
In the instant case, the appellant’s statement, Exhibit 5 was produced pursuant to a notice to produce issued to the respondent and tendered from the Bar with the consent of counsel. This is evident from the proceedings of 18/10/2006 reproduced below:
“18/10/2006
Accused present.
J.N. Adagba, SC, for the State.
S.S. Abba for the accused.
Adagba: We have an application. We were served notice to produce the statement made by the accused at ‘C’ Division. We obliged. We made copies available to the defence. We want to tender it from the Bar. This is the statement. Abba: We do not oppose.
Court: – The statement of the accused dated 30/7/2004, mutually agreed to be tendered from the Bar, is hereby admitted in evidence as Exhibits 5.”
Exhibit 5 is the statement made to the Police on 30/7/2004 by the appellant in its original form, i.e. primary evidence thereof within the meaning of Section 86 (1) of the Evidence Act. Sections 104 and 105 of the Evidence Act are not applicable in the present circumstances, since what was produced and tendered from the Bar is the original statement and not a copy thereof. The appellant, through his counsel had the opportunity of objecting to the admissibility of the document at the time it was tendered. He failed to avail himself of the opportunity. Indeed as stated above, the statement was produced at his request.
The case of Ajao Vs Ambrose Family & Ors. (1969) 1 NMLR 24 @ 30 is clearly distinguishable from the facts of the instant case, as what was in issue In that case was the certification of a photostat copy of a document, In all the references in that case, highlighted at pages 16 – 17 of the appellant’s brief, this court clearly made the point that the document marked Exhibit 2 was not a certified true copy but a Photostat copy and it was therefore inadmissible as secondary evidence of a public document which it purported to be.
In the instant case, the original statement of the appellant, tendered from the Bar and admitted in evidence without objection was properly admitted in evidence.
This issue is accordingly resolved against the appellant.
 Issue 2
In respect of this Issue, it is the contention of learned counsel for the appellant that the trial court and the court below erred in rejecting the appellant’s defence of alibi raised during the course of his defence on the ground that he ought to have raised the defence at the Police station at the time he was making his statement. He contended that the appellant could not have raised the defence at that stage on account of prevailing circumstances, to wit: that he was “coerced, compelled and tortured” into confessing to the crime. He referred to the appellant’s testimony wherein he stated that on the day of the incident he was at TSE Bagu.
In response, learned counsel for the respondent submitted that contrary to the appellant’s contention, notwithstanding the fact that the defence of alibi as raised at the trial for the first time; both the trial court and the court below considered the defence and found that it did not avail him.
The position of the law is that the legal burden of proving its case against an accused person beyond reasonable doubt rests squarely on the prosecution and never shifts. However the burden of introducing evidence on an issue, known as the evidential burden, may be placed by law on either the prosecution or the defence depending on the facts and circumstances of the case. See: Esangbedo Vs The State (1989) NWLR (Pt.113) 57 @ 69 – 70 H – A.: Woolminqton Vs D.P.P. (1935) A.C. 462. Where the evidential burden placed on a party in respect of a particular issue is not discharged, the issue would be resolved against the party without much ado. See: Esangbedo Vs The State (supra) at page 70 B – C. It was explained in Esangbedo’s case (supra) at page 70 E – F that where, for example, a defence of alibi is raised, the ultimate or legal burden remains on the prosecution to establish the guilt of the accused person beyond reasonable doubt. However the evidential burden of eliciting or bringing evidence in respect of his defence of alibis on the accused. By raising the defence of alibi, the accused person is not seeking to prove his innocence but to raise a doubt as to what might otherwise have been a fool proof case by the prosecution. See: Egbarika Vs The State (2014) 4 NWLR (Pt.1398) 558 (9) 584 A – E.
On the meaning of alibi, this court, per Obaseki, JSC in: Ozaki Vs The State (1990) 1 NWLR (Pt.124) 92 (5) 109 C – G, held thus:
‘What is the meaning of alibi? It is a defence where an accused person alleges that at the time when the offence with which he is charged was committed, he was elsewhere. It is the law that notice of intention to raise it must be given. This is normally done at the first opportunity by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established by the police.
Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt Adedeji Vs The State (1971) 1 ALL NLR p. 75. Failure by the police to investigate and check the reliability of [the] alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of a conviction imposed in disregard of this requirement as was done in the case of Onafowokan Vs The State (1987) 7 SC; (1987) 3 NWLR (Part 61) page 538. The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi: Bozin Vs The State (supra). Where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty to investigate the alibi. In such a case, no alibi is established.
The ipse dixit of the accused, i.e. that he was not present is not enough. To raise the defence he must give particulars of his whereabouts at that particular time.”
From the excerpt of the above decision, it is clear that the initial evidential burden of setting up enough facts upon which the defence of alibi can rest, is on the accused person. He must raise the defence at the earliest opportunity to afford the prosecution an opportunity to investigate and rebut the evidence in order to discharge its burden of proving the guilt of the accused beyond reasonable doubt. See: Aqu Vs The State (1985) 9 SC 179. I think it goes without saying that an alibi raised after the prosecution has closed its case and during the appellant’s defence could hardly be described as being “promptly and properly put up.’’ The sum total of his defence of alibi is as follows:
“When Msutegher was allegedly killed, I was at Tse Bagu.”
“When Police arrested me at Tse Bagu one elderly man, who gave me land to farm was present. His name is Chia Bagu.”
Even if it had been raised at the earliest opportunity, the defence is vague and bereft of detailed particulars that would enable the Police investigate. I entirely agree with the court below, which affirmed the finding of the trial court on this Issue that the defence of alibi was unreliable and raised too late in the day to be of any benefit to the appellant. The court gave full consideration to the issue before dismissing it.
It was the further contention of learned counsel for the appellant that the defence could not have been raised at the Police station due to “prevailing circumstances” having regard to the evidence of the appellant at the trial that he was “coerced, compelled and tortured” into confessing to the crime.
With due respect to learned counsel, the contention does not hold water. This is because the appellant’s statement, Exhibit 5, was admitted in evidence without objection. He was duly represented by counsel. It was never contended that the statement was made involuntarily and there was no application for a trial within trial to be conducted to test its voluntariness. Again the issue being raised after the prosecution had closed its case is belated. It is an afterthought and cannot avail him. I accordingly resolve this issue against the appellant.
ISSUE 3
In support of this issue, learned counsel for the appellant referred to the evidence of PW1 (the father of the deceased child) and PW2 (the neighbour who discovered the corpse of the deceased) and submitted that neither of them was an eyewitness to the crime. He noted that while PW1 claimed to have been present at the Police station when the appellant allegedly confessed to committing the crime, PW2’s testimony was that his attention was drawn to the corpse of the deceased in an uncompleted building by his friend, and he thereupon alerted PW1, whom he knew had been searching for his son.
He submitted that the testimony of PW3, one of the investigating police officers, was merely to the effect that the appellant confessed to him at the Police station that he killed the deceased.
The standard of proof required of the prosecution in a criminal case is a heavy one. The prosecution must prove its case beyond reasonable doubt. See: Section 135 (1) of the Evidence Act, 2011. The burden of proof remains on the prosecution throughout and does not shift to the accused person, except in a few limited circumstances, such as where an accused person raises a defence of insanity. See The State Vs. Emine (1992) 7 NWLR (Pt. 256) 658; Ogundiyan Vs. The State (1991) 3 NWLR (Pt. 181) 519; (1991) 4 SCNJ 44; Alonge Vs. IGP (1959) 4 FSC 203; (1959) SCNLR 516. There is no obligation on an accused person to prove his innocence. In order to discharge the onus on it, the prosecution must establish all the ingredients of the offence charged. See: Yongo Vs. C.O.P. (1992) 8 NWLR (Pt. 257) 36.; (1992) 4 SCNJ 113; Alor Vs. The State (1997) 4 NWLR (Pt. 501) 511.
The ingredients of the offence of culpable homicide punishable with death under Section 221 of the Penal Code are:
1. That the deceased died.
2. That his death was caused by the accused.
3. That the act of the accused which caused the death was intentional, having the knowledge that death or grievous bodily harm was the probable consequence of the act.
There is no dispute regarding proof of the first ingredient of the offence. PW1, the father of the deceased testified that he had been looking for his young son, who had gone missing early in the morning of 28/7/2004 from a nearby compound where he was playing with friends. He was informed by one of his neighbours, PW2, that his corpse had been found in an uncompleted building. He went there and identified the deceased whose throat had been cut. He also testified that he accompanied the body to the Federal Medical Centre. He identified the deceased to the medical doctor who performed the post-mortem examination and produced a report, which was admitted in evidence as Exhibit 3, stating the cause of death to be “cardiac respiratory failure from laceration of the trachea and carotid arteries and jugular veins.”
To establish the second and third ingredients, the respondent relied on the evidence of PW1, PW2, PW3 and Exhibits 3 and 5, the post-mortem report and the appellant’s confessional statement respectively. One of his confessional statements, Exhibit 4, was expunged from the record by the court below, having been wrongly admitted without the conduct of a trial within trial when objection was taken to its admissibility on grounds of involuntariness.
The law is settled that the free and voluntary confessional statement of an accused alone is sufficient to sustain a conviction, provided the court is satisfied that it was made in a free atmosphere and is direct, unequivocal and positively proved. Section 28 of the Evidence Act 2011 (as amended) (formerly Section 27 of the Evidence Act 2004) provides:
28. “A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
In the instant case, as observed earlier, the appellant did not raise any objection to the admissibility of Exhibit 5. The court therefore had no obligation to conduct a trial within trial to ascertain whether or not it was voluntarily made. The court was entitled to admit it in evidence and consider its probative value along with all the other evidence in the case. Exhibit 5, was recorded by PW3. It reads in part:
“…I used to go to Asase village in the North Bank to visit one of my brothers, named Ugondu. So due to the visit I normally do to my brother Ugondu I came to know the parents of the deceased Msutegher and even sometimes I used to eat food from their house. So, it was on 28/7/2004 at about 0800 hours when the deceased child i.e. Msughter was playing with two other children whom I don’t know their names, by then I was with one Abu, an Igala boy who is leaving (sic) with me in the same room in Uge Village in N/Bank but now Abu run to Abuja. So, as I was telling you, when we went to that compound in the morning at about 0800 hours, while the father of the deceased child was taking his bath, Abu went and called the child named Msughter about 3 years old while he was playing with two other children of his age mate. Myself, I hide myself in one uncompleted building with my knife, waiting for Abu to come. So as soon as Abu came with the child he (Abu) put the child down, Abu now pray in Igala language, later Abu removed something from his pocket and robbed (sic) on the neck of the child exactly where he wanted me to slaughter. After doing that, he handed over the knife to me and I finally slaughter the child Msughter. Though at the time we were doing all these the child did not cry or raised (sic) any alarm.”
The above statement contains a chilling and cold-blooded account of how the appellant and his accomplice, the said Abu, who is now at large, lured an innocent, unsuspecting little boy away from playing with his friends to a gruesome and untimely death. It is clear, direct and positive as to the involvement of the appellant in the commission of the offence. The post-mortem report, Exhibit 3, issued by one Dr. E.E. Okwori of the Federal Medical Centre is consistent with the narrative in Exhibit S of how the deceased was killed. The doctor found that the deceased’s neck was slashed and the cause of death was due to cardiac respiratory failure from laceration of the trachea and carotid arteries and jugular veins.
PW1, under cross-examination stated that while searching for his son, he met the children his son was playing with in the nearby compound and asked for his whereabouts. It is consistent with the statement in Exhibit 5 that the deceased was playing with his friends in a nearby compound. He also testified that the appellant confessed to the crime in his presence at the Police station. He maintained this assertion under cross-examination. PW2 was the person who discovered the body of the deceased and alerted PW1. His evidence was not discredited in any way under cross-examination.
After a review of the evidence, the court below held:
‘In the instant matter, it is patent on the record of appeal that the deceased victim, a human being, died. PW1, the father of the deceased identified the corpse of the deceased to the medical doctor who carried out a post-mortem on the deceased. Exhibit 5, the confession of the appellant contains the details of the methodical acts of and the manner in which the appellant savagely terminated the life of the deceased, by slashing his throat with a knife. He stated how one Abu, his companion, who had since the incident been at large, lured the deceased child away from his playmates into an uncompleted building where he was killed. While Exhibit 3, the medical report contains the findings of the Doctor who carried out the post-mortem on the deceased, viz: Slaughtered boy. Laceration of the trachea, carotoid (sic) arteries and jugular veins. And the cause of death  was  certified  to  be cardio respiratory failure  from  laceration   of the trachea and carotid arteries and jugular veins,
Hence, Exhibit 3 is consistent with the manner in which the appellant confessed in Exhibit 5 to have killed the deceased, that is, slashing the neck of the deceased with a knife. The death of the deceased was the direct consequence of the act of the appellant. There is no doubt from Exhibit 5 that the killing of the deceased was premeditated by the appellant and his “runaway” crony. He laid in ambush in an uncompleted building from prying eyes, while his crony lured the deceased from his playmates into the ready hand of the appellant, who is the hatchet man of the evil team. It is very clear that this act of the appellant that is, the slashing of the neck of the deceased was intended to cause the death of or grievous harm or fatal injury to the deceased.
Consequent upon the above elucidation, I agree with the learned trial Judge that, on the facts of this matter, the respondent, as prosecution at the trial Court, succeeded in proving beyond reasonable doubt that the appellant, by slashing the neck of the deceased with a knife, in collaboration with his crony who has been at large since the incident, intended to kill the deceased or to cause him grievous harm. Therefore, the acts of the appellant fall within the ambits of the offence of conspiracy to commit and culpable homicide with which he was charged.”
The above finding is in full accord with the evidence on record. It is unassailable. There is no reason for this court to disturb it. The appellant must certainly pay the price for his dastardly act. This issue is accordingly resolved against the appellant.
In conclusion therefore, I find that the appeal is totally lacking in merit. It is hereby dismissed. The judgment of the lower court, which affirmed the conviction and sentence of death passed on the appellant, is hereby affirmed.
Counsel:
WILSON DIRIWARI ESQ. with YINKA ADENIRAN ESQ. for the appellant.
MRS. J.N. ADAGBA, Assistant Director, Legal Drafting, Ministry of Justice, Benue State, for the respondent.