‘Judge must consider all available defences to accused’

Tunde O. Awotoye, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of the appeal filed by the appellant on 23/4/13 vide his Notice of Appeal which contains 5 grounds of appeal.The appeal is against the judgment of D. B. Sambo J. delivered on 26/3/2013.The charge against the accused (now appellant read as […]

Tunde O. Awotoye, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of the appeal filed by the appellant on 23/4/13 vide his Notice of Appeal which contains 5 grounds of appeal.
The appeal is against the judgment of D. B. Sambo J. delivered on 26/3/2013.
The charge against the accused (now appellant read as follows):
“That you Buba Sule ‘M’ of Sangiwa village Rabah Local Government Area Sokoto on 19/12/2009 at about 4:00hrs at Sangiwa village Rabah Local Government of Sokoto State within Sokoto Judicial Division did commit the offence of culpable homicide punishable with death in that you caused the death of Abdullahi Mohammed by striking him severally on his head with cutlass as a result he fell down and died on the spot, you thereby committed an offence punishable under Section 221(a) of the Penal Code.”
The charge was read to the accused and his plea was taken.
The learned trial Judge proceeded to hear parties and their respective witnesses before giving judgment against, the accused as follows (inter alia):
“In the final analysis the question for determination herein as to whether the prosecution has proved its case beyond reasonable doubt is answered in the affirmative consequently I hereby convict you Buba Sule on the charge of culpable Homicide punishable under Section 221(a) of the Penal Code. I have heard the learned defence counsel pleading that the accused is a minor under 18 years and as such this court should temper justice with mercy. Much as this court would want to temper justice with mercy it has to do so within the power of the law. The accused having been convicted under S.221(a) of the Penal Code the sentence is mandatory. I have equally looked into the S.272 of the CPC whether it will assist me to temper justice with mercy unfortunately the accused person does not come within the provision of that law.
Consequently the hands of this court are tight (sic) and must carry at the mandatory provision of the Penal Code to wit, accused must be sentenced accordingly (sic).
In the light of the above therefore this court sentences you Buba Sule to death and you shall be hanged by the neck (sic) until you are certified dead. May God have mercy on your soul.”
It is against this judgment that the appellant filed five grounds of appeal.
I have carefully considered the submissions of learned counsel on both sides as contained in their respective briefs of arguments as well as the contents of the record of appeal transmitted to this court.
I have also deeply considered the issues as formulated by the counsel for the parties. I am of the respectful view that the following sole issue is adequate in the determination of this appeal to wit -whether or not the learned trial judge was right in law to have convicted and sentenced the accused appellant having regard to the evidence adduced before the court and as contained in the record of appeal?
I shall determine this appeal in the light of this sole issue.
The judgment and conviction of the appellant by the learned trial judge rested on two pillars.
i. The dying declaration of the deceased to PW2 and
ii. The confessional statement of the accused admitted as exhibits by the trial judge
DYING DECLARATION
PW2, Fatima Umar also known as Fatimatu Altine was the mother of Abdullahi Altine the deceased, she gave evidence inter alia as follows: –
“On a Thursday in the bush accused met my son Abdullahi in the bush rearing cattle. He the accused beat him. Accused met my son sleeping with the cows, accused used a machete to kill the deceased. The deceased person told me it was the accused. This was the accused. This was before he died when he was conveyed on a horse to hospital. He was wounded on his forehead as well as on his legs. The deceased was cut on his stomach.”
The learned trial judge held as follows in his judgment :
“From the totality of evidence adduced herein, it is manifest there is no eye witness account of what transpired between the accused person and the deceased. But there is clear evidence from the testimony of PW2 Fatima Altine, the mother of the deceased that she was at the scene immediately and the deceased communicated with her. PW2 said the victim before his death disclosed that the attack on him was by the accused person. Most important in this case to note is what the deceased communicated to PW2 which amount to a dying declaration. I agree with learned prosecuting counsel that dying declaration is admissible.”
The question now is whether or not what the victim communicated to PW2 was a dying declaration in the eyes of the law. What is a dying declaration? In AKPAN V THE STATE (1992) NWLR (Pt. 248); 1992 7SCNJ 22, Karibi-Whyle JSC answered the question thus:
“It is well established in our law that a statement made by a person in imminent fear of death, and believing at the time it is made that he was going to die is admissible as a dying declaration. See Section 33(A) of Evidence Act. See AKINFE V STATE (1988) 3NWLR (PT. 83) 729, OKOKOR V STATE (1967) NMLR 189, R V OGBUEWU (1949) 12 WALA 483. Strict proof of the actual words used by the deceased is generally required in proof of the dying declaration to avoid any uncertainties.”
For a piece of evidence to pass as dying declaration there must be proof that the declarant when talking to the witness was under the apprehension that death was knocking at his door. See OLABODE V THE STATE (2009) 11NWLR (PT. 1152) 254 (S.C)
Viewed in the light of the above and the evidence on record there is no proof that the victim was under the apprehension of imminent death when he made the statement to PW2. The learned trial judge did not, with due respect, advert his mind to this point. See also Section 40 of the Evidence Act. The learned trial judge was therefore wrong to have relied on the statement of the victim which did not comply with the requirement of Section 40 of the Evidence Act and decided authorities on dying declaration.
CONFESSIONAL STATEMENT OF THE ACCUSED
The first question to ask is whether or not the accused retracted the confessional statement admitted as Exhibits P2 and P2A.
The statement of the accused was tendered by Sgt Mohammed Bawa, PW4 at the point it was tendered as exhibit counsel for the accused objected thus;
“We object to the admissibility of the two documents because the statements were not made voluntarily. The accused was promised at the time he gave statement that he will be assisted. This was done outside the cautionary words. The accused was not taken before ASP Nasiru because he did not write his name. ASP did not sign but only the IPO and the accused thumb print. The thumb print is not that of accused person.”
There is need to scrutinise the objection of defence counsel as stated above. It is;
1. That the statement was not voluntarily made or
2. The accused did not make the statement at all.
A trial within trial is conducted when accused person objects to the admissibility of the confession because it was not voluntarily made. See LASISI V THE STATE [2013] LPER 20183 SC
The learned trial judge proceeded rightly to conduct a trial within trial but the trial was aborted when the counsel for the accused withdrew his objection to the admissibility of the statement of the accused on 21/11/2012.
The Hausa and English versions of the statement of the accused were admitted consequently as Exhibits P2 and P2A.
But the objection of the accused was also to the effect that he did not make the statement. This becomes clearer when one looks at his evidence under examination in chief and under cross-examination.
The accused said; “It is true police said I made a statement I was arrested and brought to Ghandi police station. The DPO asked me if I knew Abdullahi the deceased and if something happened between us, I said nothing happened. From there I was taken to Rabah Police Station where I spent three days in detention. I was asked about Abdullahi and I again said nothing was between us. There I made a statement in the police station. From Rabah I was brought to State CID Sokoto. When I came to CID I was locked up in a room I was challenged why I beat him and I denied. I saw in the CID an officer who brought out papers and began to write, later I was asked to sign but I complained to them that I was not the one who committed the offence.”
The accused said under cross-examination:
“It is true in my statement I protested that I am not the one who committed the offence under consideration. I want this court to believe that even though I protested about the death of Abdullahi. I only knew of his death in this court.
Thumb print is my usual way of signing. I made statements to the police in different police stations equally signed them.”
It is settled that retraction of a confessional statement does not preclude the court from grounding conviction upon it.
See R V OMOKARO (1941) 7WACA 146; ACHABUA V STATE (1976) NSCC 74; YUSUFU V STATE (1976) 6SC. 167, MOHAMMED V STATE (20140 LPELR 2291 (SC)
But there must be some corroborative evidence outside the confession which would make it probable that the confession was true see EJINIMA V THE STATE (1991) 6NWLR (PT 200) 627.
I have combed the entire evidence adduced as per the record of appeal. It is clear that there was no eye witness to the crime. The learned judge referred to the cutlass tendered as a form of corroboration of the retracted confessional statement of the accused. I must state that with due respect I disagree.

To be concluded.