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Yusuf v. State

KAMARU YUSUF

V

THE STATE

COURT OF APPEAL

( ILORIN DIVISION )

IGNATIUS IGWE AGUBE JCA ( Presided )

IGWE GEORGE MBABA JCA

OBANDE OGBUINYA JCA ( Read the Lead Judgment )

CA//IL/C.1/2011

THURSDAY, 15 MARCH 2012

CRIMINAL LAW AND PROCEDURE - Confession as strongest evidence of guilt of accused person - Court - Power of to base conviction solely on - Admissibility of - Retraction of - Irrelevance of thereto

CRIMINAL LAW AND PROCEDURE - Conspiracy - What is - How proved - Essential ingredients of that must be proved by prosecution to secure conviction for, Penal Code, section 96 considered

CRIMINAL LAW AND PROCEDURE - Inconsistency rule - Import of confessional statement - Inapplicability of thereto

CRIMINAL LAW AND PROCEDURE - Kidnapping - Offence of -

Ingredients of - Prosecution - Onus on to establish to secure a conviction for - Penal Code, section 274 considered

CRIMINAL LAW AND PROCEDURE - Proof beyond reasonable doubt - Import of - Purport of - When satisfied in the offence of conspiracy

EVIDENCE - Inconsistency rule - Import of - Confessional statement - Inapplicability of thereto

EVIDENCE - Unchallenged evidence - Court - Right of to rely on

FAIR HEARING - What connotes - Basis of - Breach of - Effect of - Test for determining - Constitution of Federal Republic of Nigeria,

1999 , section 36(1) and (6) considered

JUSTICE - Miscarriage of - What is - When occurs

NOTABLE PRONOUNCEMENT on impropriety of call for abolition of death penalty

STATUTE - Constitution of Federal Republic of Nigeria, 1999, section 36(1)  and (6) - Fair hearing - What connotes - Basis of - Breach of - Effect of - Test for determining

STATUTE - Penal Code, section 96 - Conspiracy - What is - How proved -  Essential ingredients of that must be proved by prosecution to secure conviction for

STATUTE - Penal Code, section 274 - Kidnapping - Offence of Ingredients of - Prosecution - Onus on to establish to secure a conviction

Issues:

  1. Whether the prosecution was able to prove the offence of conspiracy to kidnap and kidnapping, and conspiracy to commit culpable homicide against the appellant.
  2. Whether the learned trial judge was right in convicting the appellant based on the confessional statement of the 2nd accused despite the fact that the statement was withdrawn by the maker on the ground that it was given under duress.
  3. Whether failure of the prosecution to present PW8 for crossexamination has not denied the appellant his right to fair hearing.

Facts:

The accused persons were alleged to have killed an 8-year old girl for moneymaking ritual and were therefore arraigned in the High Court of Kwara State on a 4-count charge of criminal conspiracy to kidnap, criminal conspiracy to commit culpable homicide, kidnapping and culpable homicide punishable under sections 97, 221 and 274 of the Penal Code. The trial court convicted the accused persons. Aggrieved, the appellant appealed to the Court of Appeal.

In determination of the appeal, the Court of Appeal considered the following statutes:

Constitution of the Federal Republic of Nigeria, 1999, section 36(6)(d):

“36(6) Every person who is charged with a criminal offence shall be entitled to:

(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the

prosecution ...” Penal Code, section 96(1):

“96(1) When two or more persons agree to do or cause to be done: (a) an illegal act; or

(b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.” Penal Code, section 271:

“271. Whoever takes or entices any person, under fourteen years of age, if a male, or under sixteen years of age, if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such person without the consent of such guardian or conveys any such person beyond the limits of the state without the consent of someone legally authorised to consent to such removal, is said to kidnap such person.” Penal Code, section 220:

“220. Whoever causes death:

  1. by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or by doing an act with the knowledge that he is likely by such act cause death; or
  2. by doing rash or negligent act, commits the offence of culpable homicide.”