Position of the Law Where the Extra Judicial Statement of A Witness In a Criminal Trial Contradicts His Evidence on Oath

CASE TITLE: AUWALU v. KANO STATE (2024) LPELR-63004(SC)
JUDGMENT DATE: 26TH APRIL, 2024
PRACTICE AREA: EVIDENCE
LEAD JUDGMENT: HELEN MORONKEJI OGUNWUMIJU, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on criminal law and procedure.

FACTS:

This is an appeal against the decision of the Court of Appeal, Kano Division Coram: Abubakar Datti Yahaya, Habeeb Adewale Abiru and Amina Audi Wambai JJCA delivered on the 2nd day of July, 2020, which affirmed the judgment of the trial Court delivered by Hon. Justice A.T. Badamasi on 25th January, 2016

The first prosecution witness, the senior brother of the deceased, testified that around 8:15 pm on the day of the incident, one Nasiru Dan Asuba came along with eight of his friends, including the appellant, one Sabiu, Umar, Hussaini, and Sidi, to meet the deceased, and a quarrel ensued between Nasiru and the deceased over some money issues. The witness stated that he was present there and that he made efforts to resolve the quarrel and that one of Nasiru’s friends hit the deceased on his back, and the deceased retaliated.

The respondent at the trial Court preferred a two-count charge against the appellant who was the second defendant at the trial Court and another for the offences of criminal conspiracy and culpable homicide punishable with death by virtue of Section 97 and Section 221 (1) of the Penal Code respectively.

​During the trial, the prosecution called three witnesses and tendered exhibits as evidence. In the course of tendering the confessional statement, the learned counsel for the defence raised an objection to its admissibility that it was obtained by duress, force, and torture of the appellant. He thereupon applied for trial within trial with a view for the Court to determine the voluntariness of the confessional statement and after the said trial within trial, the trial Court admitted the confessional statement as evidence.

At the close of trial, the Court convicted and sentenced the appellant for the offences of criminal conspiracy and culpable homicide punishable with death. The appellant being dissatisfied with the said judgment of the trial Court lodged an appeal against the same to the Court of Appeal which affirmed the judgment of the trial Court. Dissatisfied still, the appellant appealed against the whole decision of the Court of Appeal in the instant appeal.

ISSUES FOR DETERMINATION:

The Court adopted the issues formulated by the appellant in the determination of the appeal, thus:

1. Whether the Court of Appeal was right in law when it held that the Prosecution as the Respondent had no duty to tender in evidence at the trial all extra-judicial statements made by the Appellant in the course of investigation except on demand by the Appellant.

2. Whether the Court of Appeal was right to have affirmed the conviction and sentence of the Appellant by the trial Court on the offences of Criminal Conspiracy and Culpable Homicide punishable with death, solely on the incredible, inadmissible and uncorroborated confessional statement of the Appellant “Exhibit E”

DECISION/HELD:

In the final analysis, the appeal was dismissed.

RATIOS:

• APPEAL- INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Instances where the Supreme Court will not interfere with concurrent findings of fact(s) made by Lower Courts
• CRIMINAL LAW AND PROCEDURE- DUTY OF PROSECUTION: Duty of the prosecution to tender any statement made by an accused person during investigation
• CRIMINAL LAW AND PROCEDURE- OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH: Ingredients that must be proved to establish the offence of culpable homicide punishable with death; ways of proving it
• EVIDENCE- CONTRADICTION IN EVIDENCE: Position of the law where a prior extra judicial statement of a witness in a criminal trial contradicts his evidence on oath
• EVIDENCE- CONFESSIONAL STATEMENT: Whether an interpreter who interprets an alleged confessional statement to a police officer as well as the police officer must be called to testify before the statement will be admitted
• EVIDENCE- CONFESSIONAL STATEMENT: Whether there is need to re-call an interpreter of a confessional statement during the main trial where he has given evidence during a trial within trial
• EVIDENCE- STANDARD OF PROOF: Standard of proof in criminal cases
• EVIDENCE- CONFESSIONAL STATEMENT: Tests for determining the truth or weight to attach to a confessional statement before a court can convict on same
• EVIDENCE- CONFESSIONAL STATEMENT: Effect of not appealing against the ruling of a trial Court admitting a confessional statement after trial within trial

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