⦿ CASE SUMMARY OF:
James Afolabi v. The State  – SC
(SC.181/2012) NGSC 29
⦿ LEAD JUDGEMENT DELIVERED BY:
Inyang Okoro, JSC
- FOR THE APPELLANT
- Mr. Akubo, Esq.
- FOR THE RESPONDENT
- B. A. Alfa [Mrs] DPP Kogi State.
⦿ FACT (as relating to the issues)
This is an appeal against the judgment of the Court of Appeal, Abuja Division wherein the court below upheld the judgment of the Kogi State High Court sitting at Lokoja in which the appellant was convicted and sentenced to death for the offence of culpable homicide punishable under section 221 (b) of the Penal Code.
The record of appeal shows that the Appellant was arraigned on a single count charge of culpable homicide punishable with death contrary to section 221 (b) of the Penal Code, Laws of Northern Nigeria. The prosecution called a total of three witnesses who gave evidence of the death of one Abubakar Mohammed. In the course of the trial, the prosecution witnesses tendered four negatives and four pictures of the deceased’s corpse and same were admitted in evidence as exhibits A1 A4 and B1 B4 respectively. A post mortem examination was conducted on the deceased and the result of the autopsy was admitted in evidence as Exhibit BB. The appellant made two confessional statements. Exhibits C and D are the said confessional statements the appellant made at B Division Police Station, Lokoja and State CID Lokoja respectively. Exhibit E is a gun used to commit the offence while Exhibits F and G are a blood stained cap and a pair of scissors respectively.
It is the case of the respondent (Prosecution) that the appellant committed the offence with which he was charged at the trial court. The appellant admitted in both Exhibits C and D that he shot the deceased with a gun which led to his death. Exhibit D was subjected to trial within trial after which the learned trial judge held that it was voluntarily made. There is no appeal against the aforementioned ruling of the learned trial judge. On the other hand, the appellant simply denied committing the offence in the course of his evidence before the trial High Court. He narrated that he has a farm land where he planted cassava and yam. He said that a Fulani man came to his farm on 27/2/2009. He further stated that he accosted the Fulani man within the vicinity of his farm. About 6pm of the same date, he became aware of the death of the deceased.
An appeal to the lower court was dismissed. The Court of Appeal held that the Trial court was right in convicting the Appellant on the strength of his confessional statements and that the respondent had proved the ingredients of the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code. Against the decision of the court below, the appellant has further appealed to this court.
- Whether the Court of Appeal was correct in holding that the trial court was right in convicting the Appellant on the strength of his confessional statement?
- Whether the learned Justices of the Court of Appeal were right in coming to the conclusion that it is obvious from the evidence before the trial court that the appellant intentionally killed the deceased.
⦿ ARGUMENTS OF PARTIES
- FOR THE APPELLANT
- According to him, the court below ought to have treated Exhibits C & D [the confessional statements] with caution and not rely on them to convict and sentence the appellant to death because they were infested with illegality which makes them unreliable and lacking in evidential value for the following reasons. 1. That the exhibits were not subjected to six way test laid down by this court in Dawa & anor v. The State (1979) 12 NSCC 334 at 348, Demo Oseni v The State (2012) 5 NWLR (pt 1293) 351 at 374, Ojegele v The State (1988) 1 NWLR (pt 71) 414, Odohn v The State (1984) 12 SC 139. He opined that having regard to the totality of evidence, exhibits C & D did not meet the test. 2. That there was no slight evidence of corroboration outside the contents of Exhibits C & D. 3. That Exhibits C & D is a gross violation of criminal procedure (statement to Police officers Rule cap 30 LNN 1963 in that the cautionary words were not signed by the appellant. 4. That the body or contents of Exhibits C &.D was not written by the appellant nor was it written by the PW1 & 2 on the instructions of the Appellant. 5. That Exhibits C & D were admitted in contravention of section 27 of the Evidence Act in that both statements were not positive, direct and voluntary.
- Learned counsel further submitted that contrary to the findings of the two lower courts, there is no oral or documentary evidence proffered by the prosecution pointing irresistibly, conclusively and compellingly that it was the appellant who intentionally killed the deceased. That there was contradiction in the evidence of PW1 and PW2 in relation to the ownership, recovery and use of the gun ie Exhibit E. Therefore, it is unsafe to rely on exhibits C and D to hold that the appellant used exhibit E. It was his view that the only evidence against the appellant is that found in Exhibits C and D which he opines was wrongly relied upon. He urged the court to resolve this issue in favour of the appellant.
*FOR THE RESPONDENT
- i. Learned counsel for 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 by someone and the accused had the opportunity of committing same as in the present case, relying on the cases of Akpan Vs The State (2007) 9 NWLR (pt 1019) 500 at 524 paras F G, Dibie Vs The State (2007) 9 NWLR (pt 1038) 30 at 51, Nwachukwu Vs The State (2007) 17 NWLR (pt 1062) 31 at 65 66 paras H A. According to learned counsel, the respondent has suffciently established the fact that the confessional statements of the appellant were freely and voluntarily made as conffirmed by the ruling of the trial court. It was further contended that the evidence of PW1, PW2, and PW3, Exhibits A1 A4, B1 B4 and “BB” clearly show that the deceased had died. He opines that this corroborates exhibits C & D.
ii. Learned counsel submitted that since there is no appeal against the ruling on the trial within trial, the court should hold Exhibits C & D proper and that the court below was right to hold that the confessional statements alone were suffcient for the conviction and sentence of the appellant as was gallantly conceded by the learned counsel for the appellant, an accused person can be convicted on his confessional statement alone if same is positive, direct and made voluntarily.
- The learned counsel for the respondent submitted that from Exhibits C and D, it is obvious that the appellant intentionally killed the deceased. That when the appellant aimed the gun at the chest of the deceased and shot it, he intended the natural consequence of his action.
⦿ HOLDING & RATIO DECIDENDI
- ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the instant case, the prosecution, through PW1, PW2 and PW3 succinctly testified before the trial court that the deceased person was dead. It also tendered exhibits A1 -A4, B1 B4 and BB to conffirm the death of the deceased person. Apart from that, the prosecution had tendered Exhibits C and D, the confessional statements of the appellant which were adequately tested by the learned trial judge in a trial within trial. There is no appeal against the ruling of the trial court on the trial within trial. Thus, the appellant had accepted the decision of the trial court that the confessional statement was freely and voluntarily made by him, I had earlier stated that a confessional statement tendered in evidence is part of the evidence of the prosecution.
- ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the instant case, the appellant states emphatically in Exhibit D adjudged to have been freely and voluntarily made, that he aimed his gun at the chest of the deceased at close range and shot him. It was his further evidence that the deceased fell down and could not move again. At that point, he ran to the village head and reported that he had killed a man. In the circumstance, did he intend to kill the man? I had earlier stated in this judgment that a person is taken to intend the natural and probable consequences of his act. So, when the appellant aimed his gun at the chest of the deceased and shot it did he intend to keep him alive? I do not think so. At least he intended to cause him grievous bodily harm. And in view of the force of a gunshot aimed at the heart, the engine room of a man’s life, it can safely be concluded that the appellant intended to kill the deceased by his action, the report he made to the village head notwithstanding. Had the appellant shot the deceased on the leg, maybe, just maybe, one would have thought otherwise. At the age of the appellant, he ought to have known that the part of the body of the deceased he aimed at (the heart) was the last that could have entered his mind if he had intended the man to stay alive. I agree with the lower court that the appellant intentionally shot and killed the deceased. All the arguments of the learned counsel for the appellant which had nothing to do with whether or not the killing was intentional, are of no moment. They are discountenanced.
S. 28 Evidence Act 2011;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
It is now well settled that an issue or issues for the determination of an appeal must be distilled from, or must arise from a competent ground of appeal. An issue is incompetent if it does not arise from any competent ground of appeal and is liable to be struck out. Corollary, the argument in respect of the incompetent issues must be discountenanced. – Inyang Okoro, JSC. Afolabi v. State 
It is not the duty of the court to sift submissions by learned counsel made on issues raised from competent and incompetent/non existent grounds of appeal. – Inyang Okoro, JSC. Afolabi v. State 
A confession in itself is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. It is however not a general rule that a confession relieves the prosecution of its duty of proving its case beyond reasonable doubt. Therefore, for a confession to form the basis of a conviction, it has to be shown to be free and voluntary, positive and proved to be true. – Inyang Okoro, JSC. Afolabi v. State 
At this stage, I must state clearly that although it is desirable to have outside an accused person’s confession to the police some evidence, no matter how slight of the circumstances which make it probable that the confession was true, a voluntary confession of guilt, if true, consistent and probable, and is coupled with a clear proof that a crime has been committed by some persons, is usually accepted as satisfactory evidence on which the court can convict. – Inyang Okoro, JSC. Afolabi v. State 
It is an elementary proposition of the criminal law that every person is taken to intend the natural and probable consequences of his or her act And, the consequence of an act may be said to be probable, if a reasonable man would consider its occurrence to be the natural and normal effect of the act. – Inyang Okoro, JSC. Afolabi v. State 
As a reminder or to refresh or jerk up the memory, the essential ingredients of the offence of cuipable homicide punishable with death are that; (a) The Deceased had died. (b) The death of the deceased was caused by the accused. (c) The act or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence. – Mary Peter-Odili, JSC. Afolabi v. State