‘Judge must consider all available defence to accused’

Even from the prosecution’s case how the cutlass came to be registered as exhibit is not clear. The IPO, Sgt Bawa said he did not know when the cutlass was registered. He did not know when it was recorded at the police station.The accused denied having anything to do with the cutlass.A piece of evidence […]

Even from the prosecution’s case how the cutlass came to be registered as exhibit is not clear. The IPO, Sgt Bawa said he did not know when the cutlass was registered. He did not know when it was recorded at the police station.
The accused denied having anything to do with the cutlass.
A piece of evidence with doubtful background cannot confirm or corroborate a confessional statement which is being retracted. A confused piece of evidence cannot be used to clear confusion in the evidence.
I have also observed that the learned trial judge also drew corroboration from the similarity in the evidence of the prosecution and the retracted statement. I still want to disagree on this, over-zealous Investigating Police Officers have a way of composing statements for the accused in alignment with the investigation conducted. The fact that the retracted confessional statement revealed that the deceased was struck on the head thrice and the investigation revealed the same should not be held to be corroborative having regard to the fact that in some cases the investigating police officers are also the author of the statements. What should be corroborative in my respectful view should be a piece of evidence outside the confessional statement that is independent of such statement like:
a. Incriminating evidence recovered from accused with properly executed search warrant.
b. Blood stained items backed by forensic expert’s evidence or report.
c. Writing of the accused backed by hand writing analyst’s report.
d. Gun and expelled bullets backed by ballistic expert’s report.
e. Demeanour of the accused in the witness box or in court etc.
What happens when accused retracts his statement? If the statement was not made voluntarily it implies an admission that he made the statement but involuntarily. See ABDULLAHI IBRAHIM V THE STATE [2013] LPELR -2188 3 (SC) per Akaahs JSC.
It is however different when the accused says he never made the statement.
In this case, the accused at the point of tendering of the statement of the accused said through his counsel thus;
“We object to the admissibility of the two documents because the statements were not made voluntary. The accused was promised at the time he gave statement that he will be assisted.
The accused was not taken before ASP Nasiru because he did not write his name. The ASP did not sign but only the IPO and the accused thumb print. The thumbprint is not that of accused person.”
The meaning of the above in my respectful view is that the accused made the statement tendered. It is therefore surprising that the accused in his defence turned round to deny making the statement. The shiftiness of the accused in his defence on the issue of the statements suggests that the accused was not saying the truth, thereby confirming that he actually made the statement and that it contained the truth.
The learned trial Judge was therefore right to have relied on it in convicting the accused. The shiftiness of the accused lends corroboration to the authenticity of the confessional statement. It is pertinent at this juncture to quote the confessional statement of the accused for clarity’s sake:
“I of the above name and address thereby elect to give my statement as follows: I was born about 17years ago at Sangiwa village Rabah local Government Sokoto my occupation is rearing of domestic animals. On 17/2/2009 I visited my proposed wife by name Inno. I then asked her of one wrist watch I bought for her. She then said she gave it to one Abdullahi Muhammed of our village. I then left her and came back home. That day I looked for Abdullahi but did not see him. On the 18/2/2009 I was rearing my animals when I saw Abdullahi together with one of his friends, I then asked him but he denied any knowledge of the wrist watch. On the 19/2/2009 early in the morning I was passing near Abdullahi’s house I saw him lying sleeping outside. On seeing him my mind went back to the wrist watch issue and I was provoked, by then I was in possession of a cutlass. I then cut Abdullahi Mohammed on his head three times with the cutlass. I saw blood coming out from his head I then ran away. Later I was arrested by the police with an allegation that Abdullahi died as a result of the injury I inflicted on him. Honestly, I cut Abdullahi on his head because he intended to snatch my proposed wife. That is all I have to state.”
The learned trial judge rightly relied on the above statement.
I therefore resolve the sole issue in favour of the respondent.
I need to briefly touch on the contention of the appellant that the learned trial judge failed to consider all the defences available to the accused. This indeed is the requirement of the law. See UMARU ADAMU V THE STATE (2014) LPER -2269 (SC) where Ariwoola JSC on pages 31-32 of the judgment had this to say:
“The law is clear that in all trials of culpable homicide, the court has the onerous duty to consider;
 (a) all the defence raised by the evidence whether the accused person specifically put up such defence or not and
 (b) any defence raised by an accused person no matter how weak, inconsequential or stupid it may appear must be given due attention see APISHE V THE STATE (1971) 1ALL NLR 50; TAKITA V THE STATE [1969] 1ALL NLR 270; WILLIAMS V IGP [1965] NMLR 470”. The question is, is there any defence raised by the accused disclosed in the evidence? Learned counsel for the appellant submitted the issue of provocation and sudden fight was impliedly raised in the statement of the accused. I respectfully disagree. The accused said he was provoked by an incident he remembered. He said in his statement thus:
“On seeing him my mind went back to the wrist watch issue and I was provoked by then I was in possession of a cutlass.” This is not provocation as known to law. He did not say the victim provoked him.
It is the duty of this court as well as the trial court to consider all defences available to the appellant in a case of culpable homicide see OJO V THE STATE [1973] 11SC (REPRINT) 199 Where Sowemimo JSC on page 9 had this to say.
“It is settled principle that an accused in a murder charge is not restricted in the consideration of his defence to the defence raised by him but it is open to the court to consider other defences available to the accused on the facts preferred or established before the court of trial. On appeal, the appeal court will consider all the defences open to the appellant on the facts established in the court of trial in spite of the fact that such defence or defences were not considered in the lower court.”
Learned counsel hammered on the different names given to the deceased by the PW2 and the charge – Altine Abdullahi and Abdullahi Muhammed as constituting material contradictions that were not considered. I am however unable to see how any of the witnesses was misled by the names. It is clear that the accused had no doubt as to the identity of the deceased. I therefore hold that the contradiction is immaterial.
I have gone through the facts of this case and the confessional statement of the accused on which the learned trial judge relied to convict the appellant. I am unable to see any defence available to the accused/appellant yet unconsidered which would have affected the verdict of the lower court.
I have no hesitation in dismissing this appeal for lack of merit. I affirm the judgment and sentence of Hon. Justice D. B. Sambo delivered in Suit No. SS/16c/2011 BUBA SULE V THE STATE on 26/3/2013 at High Court of Justice, Sokoto

(Concluded)