Circumstantial Evidence

Between

Valentine Adie ……. Appellant

And

The State ……. Respondent

…………………….A…………………….

Judgement of the Court Delivered by Muhammadu Lawal Uwais
The appellant was convicted at the High Court, Ogoja of the murder of Cyril Bishung and was sentenced to death. He appealed to the Federal Court of Appeal against conviction and the appeal was dismissed. He has now appealed to this Court.

The facts before the trial court, which were not in dispute, may be summarised as follows. On 16th December, 1975 both the appellant and the deceased took part in a football match after which there was hot argument between them. The appellant returned to his room at Front Line Hotel, Obudu. Not long afterwards the deceased went to the hotel and met the appellant in the room. A fight ensued between them in the room. The fight, according to the appellant, lasted about ten minutes. The time was about 7 p.m. P.W.2, James Akpagu was an eyewitness to the fight. He said in evidence that he had gone to the “generator room” of the hotel to switch on the hotel electric plant when he heard some noise coming from the appellant’s room. He went to the room and found the deceased and appellant fighting. He attempted separating the fight but in vain. One Godwin Uka came to the room and with his assistance the fight was stopped and the deceased was pushed out of the room. The appellant then got hold of a stick to chase the deceased. P.W.2 tried to stop the appellant, but the appellant shouted at him saying “let me alone to pursue him”. The appellant then went after the deceased P.W.2 came out of the Front Line Hotel but could not see the appellant. He, on information received, ran to Port Harcourt Street where he found the deceased lying on the ground. The deceased called on him for help and asked the witness to get his (deceased’s) father to the scene. Meanwhile one Justina Azikpu, P.W.5, who had seen the deceased on the ground requested Timothy Agida, P.W.4, to take the deceased to the hospital. P.W.4 picked the deceased on his motor cycle and took him to the police station instead. The police then took the deceased to the Sacred Heart Hospital, Obudu, where the latter was admitted by a doctor for observation.

The doctor testified as P .W.1 and said:
On 16/12/75 I admitted at about 8.30 p.m. one Cyril Bishung into hospital. Cyril had a small laceration on the bridge of the nose, and another laceration on the right eyebrow. I observed that the right eyelid was grossly swollen. His general condition was good at the time of admission. He was admitted for observation. On 17/12/75 his general condition was satisfactory. On 18/12/75 he had transcient episodes of restlessness and was semi-comatose at times. At 9.40 p.m. of 18/12/75 he died. I next performed a post-mortem examination on 19/12/75 at 8 a.m. I found upon dissection of the skull linear slightly depressed fracture of the frontal bone, just above the nose and another depressed fracture on the right eye brow. There was communited fracture of the right orbital plate, with displacement of splinter fragment, also observed extradural haemorrhage of the frontal orbital bone. In my opinion cause of death was the above-stated injuries on the head.

In his defence, the appellant testified and said that when the deceased tried to run out of his (appellant’s) room in the Front Line Hotel, he (deceased) knocked his face against the frame of the door. This evidence was earlier mentioned in the appellant’s statement to police made under caution, which was put in evidence by the prosecution as Exhibit 1 and was subsequently adopted by the appellant in the course of his evidence-in-chief. The relevant portion of Exhibit are ads:

During the struggle, when he got up, and was trying to run out of the house he hit his face on the frame of my door and sustained injury.

…………………….B…………………….

The only point taken before us by learned counsel for the appellant was that in view of the inconsistency in the evidence of the doctor that performed the autopsy (P.W.1) there was no sufficient circumstantial evidence which could be said to have irresistibly led to the inference by the learned trial judge that it was the appellant that caused the death of the deceased. In support of this contention learned counsel for the appellant referred us to the evidence of the doctor given under cross-examination, where she said:

All the head injuries are due to heavy direct force; These ones are consistent with injuries caused if a person ran against a heavy object (italics mine). and also the doctor’s written report which was tendered for identification by her and later put in evidence by PC Noel Ikpo, P .W. 8, as Exhibit 3. In the report the doctor expressed the following opinion:

I certify the cause of death in my opinion to be due to above head injury due to a heavy blow (Italics mine). In his judgment the learned trial judge found as follows:

The 1st accused (now appellant) has not also disputed the fact that the deceased had an injury on his head, but explains that the injury was caused when the deceased hit his face on the wooden frame of his door. I do not accept this explanation. The doctor said there were two lacerations on the deceased’s face, one on the bridge of the nose and the other on the brow of the right eye. Under cross-examination she said the two wounds were due to heavy direct force; in Exhibit 3, her report on the autopsy, she certified that the cause of death was the head injury, (meaning I take it, the two lacerations) due, as she put it, ‘to a heavy blow.’ No accidentally self-inflicted injury could, in the circumstances in which the 1st accused said the fight took p lace, result in so grave an injury as those in issue in this case …..I therefore find as a fact that it was the 1st accused who inflicted the injury or injuries on the nose and right eyebrow of the deceased, which injuries occasioned the deceased’s death on the 18th of December, 1975.

The Federal Court of Appeal which considered the issue of the sufficiency of the circumstantial evidence observed –In the present case as we have already pointed out, the evidence-in-chief of P.W.2 covered these aspects of the inadmissible evidence now complained of by learned counsel for the appellant and it is our view that in no way was the appellant ever prejudiced. This view also applies to the admission of Exhibit 3 the medical certificate of P.W.1. There was no need to have admitted that exhibit in view of the evidence of P.W. 1 herself. We agree with the submission of learned counsel that the only use to which the report might have been made was for the doctor to have been allowed to refresh her memory with it and the defence would then have been entitled to see it and cross-examine on it, in which case it might have been produced in the doctor’s evidence-in-chief. See David Ifenado v. The State (1967) N.M.L.R. 200 at page 203 (see also Owanso Agbeyin v. The State 1967 N.M.L.R. 129…

In spite of the learned trial judges reference to Exhibit 3 from the evidence-in-chief of P.W. 1, we are satisfied that it was proper for him to draw the irresistible inference that the fractures as described could not have been caused by the deceased hitting his face on a wooden door-frame.”

It is significant to observe that the medical report was not, strictly speaking, put in evidence by the doctor, as it was admitted during her testimony for identification only. P.W.8 was the witness who tendered the report when it was admitted as Exhibit 3. So that the present case is distinguishable from the cases of David Ifenado and Owanso Agbeyin (supra) where the medical reports were put in evidence as exhibits proper in the course of the evidence-in-cliief of the medical officers who testified in those cases. In the present case it was not necessary for P.W.8 to tender the medical report since the doctor testified by herself; and furthermore in view of the decisions of this Court in the cases of David Ifenado and Owanso Agbeyin, the effort by the prosecution to put in the report as an exhibit for identification only was an exercise in futility that ought not to have been embarked upon.

…………………….C…………………….

Be that as it may, since the report was put in evidence by P.W.8 and not the doctor, and it was not challenged as superfluous when so tendered, it was open to the learned trial judge to rely on its contents as he did.

Now to return to the submissions of learned counsel for the appellant. In Exhibit 3, as already shown, the doctor stated that the injuries suffered by the deceased were caused by a heavy blow. She made no mention of the cause of the injuries in her evidence-in-chief, except under cross-examination when she said that the injuries were consistent with those caused when a person runs against a heavy object. The divergence of the opinion expressed by the doctor is significant in the light of the case for the prosecution and that for the defence. If the injuries were caused by a heavy blow, that is consistent with the prosecution’s case, but if on the other hand they correspond with injuries caused by running against a heavy object, that would be in support of the appellant’s defence that the deceased collided with the frame of the door to the appellant’s room.

The case for the prosecution rests on circumstantial evidence and as Lord Hewart, Lord Chief Justice of England observed in P. L. Taylor & Ors. v. R. 21 Cr. App. R20 at p.21:

It has been said that the evidence against the applicants is circumstantial: so it is but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics.

The prosecution omitted to adduce any evidence about the size and shape of the stick carried by the appellant when he pursued the deceased. Consequently, it cannot be said with any degree of certainty that the stick was capable of causing the injuries sustained by the deceased, if it were to be held, as indeed the learned trial judge did hold and the Federal Court of Appeal affirmed, that the appellant was responsible for causing the death of the deceased by striking the latter with the stick.

In any case with the ambiguity in the testimony of the doctor unresolved it is difficult for me to see how the case for the prosecution, which is based on circumstantial evidence, could be said to have been so conclusive as to irresistibly lead to the guilt of the appellant.

In conclusion the appeal succeeds and I will allow it. The decision of the Federal Court of Appeal is set aside and the conviction and sentence imposed by the trial High Court are quashed. The appellant is acquitted and discharged.

Judgment delivered by
Sowemimo J.S.C.(Presiding)
I agree with the judgment of my learned brother Uwais on the facts and on the application of the law to those facts. It would appear that both courts of trial and the Federal Court of Appeal in Enugu did not grasp correctly that in dealing with circumstantial evidence they must appreciate that the principle governing such a case is that from the facts accepted or found the only irresistible conclusion should be that an accused person and no other inflicted the injuries and thereby caused the death of the deceased.
There is also the novel proposition that when a witness gives expert evidence in chief, the report he issued to the police must also be tendered. This in my view is contrary to the provisions of the law of evidence of the former Eastern Nigeria applicable in the Cross River State. The D .D P P. said that the procedure he adopted was in conformity with an Edict of the Cross River State but was unable to cite it as he had no copy, and in fact does not know the number of the Gazette notice or the date. He was speaking from memory.

…………………….D…………………….

It is not for this court to embark on a research for him. My learned brother Uwais has taken the trouble to make the research but did not come across such an Edict. I should have thought that the Ministry of Justice in the Cross River State especially the D.D.P.P. for that matter should not have treated the Supreme Court in such a manner. I agree that the appeal should be allowed not only because the doctor’s evidence in court contradicts her report as to the probable cause of the injuries which led to the death of the deceased, but, also, there was no other evidence to lead to the irresistible conclusions that the appellant caused the injuries that led to the death of the deceased. The appeal is allowed and the conviction and sentence set aside. It is ordered that the appellant is discharged and acquitted.
Judgment delivered by
Idigbe J.S.C.
I have had the opportunity of reading in draft the judgment just delivered by my learned brother My Lord, Uwais J.S.C. and I agree with him that this appeal should succeed, but I would like to add a few words on the important subject of circumstantial evidence which is the principal point raised in the appeal. My Lords, the background to this case and all the relevant facts have been fully recounted in the judgment of the trial court (Esin J.), that of Douglas J. C.A. (as he then was) delivered the unanimous decision of the Federal Court of Appeal holden at Enugu (hereinafter referred to simply as “the Court of Appeal”) and finally in the judgment just delivered by my learned brother, Uwais J.S. C. I think I need not repeat them save only to the extent that it may be necessary to recall certain aspects of the facts in addressing myself to what I consider the major issues which confront us and on which only I seek by this judgment to add a footnote to the leading judgment just read. I have considered it relevant to make this addition because we disagree with the considered and unanimous judgment of the Court of Appeal on a rather difficult, if not elusive, aspect of the criminal law in general and the law of evidence, in particular, which is the subject of conviction for an offence based solely upon circumstantial evidence.
The learned trial Judge has found, and the Court of Appeal, in my view, quite rightly agrees with him that there is no direct or “eye-witness” evidence as to how the deceased received the injuries which caused his death. Both the trial court and the Court of Appeal, however, appear to attach undue, if not erroneous, weight to the evidence of James Akpagu (P.W.2); both courts, in my respectful view, equally made erroneous and improper, if not “illegal”, use of Exhibit 3 [the medical report issued by Dr. Pia Parlato (P.W.1)] which document was, in the opinion of the Court of Appeal, “improperly admitted in evidence.”
That exhibit (i.e. Exhibit 3), be it noted, was put in evidence through Noel Ikpo (P.W.8) when he testified in chief, and NOT by the doctor (P.W.1) who was never asked any questions on the patent inconsistency between the opinion she expressed in her testimony under cross-examination and that given in the report (Exhibit 3) as to the manner the injuries she observed on the deceased had been received or inflicted.
Under cross-examination Dr. Parlato said:
All the head injuries are due to a heavy
direct force. These ones are consistent with injuries caused if a person ran against a heavy object. (Emphasis by me)
In her report (Exhibit 3), however, Dr. Parlato stated:
I certify the cause of death in my opinion to be due to above head (sic) injury due to a heavy blow. (Italics supplied by me)
Now, it is apparent from the foregoing underlined passages in the testimony and medical report (Exhibit 3) of Dr. Parlato that the deceased could have sustained the injuries which caused his death either (1) by “running his head or face against a heavy object” or (2) as a result of “a heavy blow”; but while theory (1) could be consistent with the evidence in the proceedings that the deceased hit (or butted) his face

…………………….E…………………….

(or frontal region of the head) against the frame of the door of the room while trying to escape from that room, theory (2) is not only
inconsistent with that evidence but could also be consistent with the deceased having been
struck “a heavy blow” on the head with an object (which evidence was never given by any witness in these proceedings). The appellant in his evidence said that the deceased butted the frontal region of his face against the frame of the door of the room wherein they were engaged in a fight while trying to escape from the combat.
It is true that the learned trial Judge disbelieved this evidence of the appellant but a close examination of the learned trial Judge’s observations on this aspect of the case shows, quite clearly, that this explanation as to what happened between him and the deceased during the combat in his room was disbelieved not only out-of-hand but also as a result of the learned trial Judge’s wrongful admission and application of the opinion of Dr. Parlato in Exhibit 3 (earlier on referred to by me) as to the manner in which the deceased received the injuries which caused his death. I pause to advert to the relevant aspect of the judgment of the learned trial Judge; and it reads:
The 1st accused has not disputed the fact that the deceased had an injury on his head, but explains that the injury was caused when the deceased hit his face on the wooden frame of the door. I do not accept this explanation. The doctor said there were two lacerations on the deceased’s face, one on the bridge of the nose, and the other on the brow of the eye. Under cross-examination she said the two wounds were due to a heavy direct force; in Exhibit 3, her report on the autopsy, she certified the cause of death was the head injury (meaning, I take it, the two lacerations), due as she put it ‘to a heavy blow’. No accidentally self-inflicted injury, could in the circumstances in which the 1st accused said the fight took place, result in so grave an injury as those in issue in this case… (Emphasis by me).
I pause, once again, to observe that it is clear that the learned trial Judge erroneously entertained the impression that on the evidence of the appellant it is impossible to imagine that the injuries on the deceased could be “self-inflicted”. This impression must, in view of the evidence of Dr. Parlato that the injuries were
consistent with the deceased having ran
“against a heavy object”, be erroneous. It is clear that in the circumstances, the learned trial Judge failed to take sufficiently into consideration that aspect of the evidence, which tells in favour of the story of the appellant, and in the circumstances his assessment of the evidence of the appellant, must be considered inadequate.
Let us now examine the evidence of James Akpagu (P.W.2) on which the learned trial Judge convicted the appellant; it was to this effect: “when on 16/12/75 about 7 p.m. he was about to enter the room where the electrical generating plant was stored in the Front Line Hotel at Obudu, he was attracted by the noise from the appellant’s room and upon entering found the deceased and the appellant engaged in a combat. With the help of a third party (i.e. 3rd accused in these proceedings who was discharged by the trial court for want of evidence) he successfully separated the appellant from the deceased whom they later pushed out of the room. Appellant took a stick and pursued the deceased. There is no evidence as to the size or length of this “stick”. Witness tried unsuccessfully to stop the appellant in his chase of the deceased. When eventually witness came out of the room, he was informed by some members of the public that appellant had followed the deceased in the direction of Port Harcourt Road (sometimes referred to in these proceedings as Port Harcourt Street) at Obudu.

…………………….F…………………….

Later he found the deceased lying on the ground at a spot along Port Harcourt Road Obudu. Such, in a nutshell is the evidence, apart from the conflicting opinion of Dr. Parlato, on which the trial court convicted the appellant.
Once again, I pause to observe that (a) there is no evidence of the size of the stick picked up by the appellant; and (b) there is no evidence 5 to
how close the pursuit of the deceased by the appellant was, nor (c) is there any evidence as to the distance between the Front Line Hotel and the spot where the deceased was later found lying on the ground. There is, however, evidence from Noel Ikpo (P.W.8) that Port Harcourt Road at Obudu is not only situated opposite the market” but also “a busy thoroughfare at all times”. There is also the evidence of P.W.8 (the police officer who investigated in detail the complaint which led to those proceedings) that he “never came across any witness who saw the 1st accused i.e. appellant) with a stick along Port Harcourt Street on 16/12/75 at 6:40 p.m.
The resultant position, therefore: is that save for the evidence of James Akpagu (P.W.2) which amounts only to this: that the appellant having fought with the deceased was seen to pick up a stick- the size of which is unknown to the trial court – and followed the direction of Port Harcourt Road (where the deceased was later found lying on the ground) in apparent pursuit of the deceased. No one testified that he saw the deceased run away from the Front Line Hotel and along Port Harcourt Road up to the point where he was obliged to lie on the ground. All we know from the totality of the evidence before the court is that the deceased was seen to leave the room of the appellant at the Front Line Hotel but was next found lying on the ground at Port Harcourt Road, Ogoja. Appellant was seen to pick up a stick near or within his room at the hotel in apparent pursuit of the deceased as the latter left the hotel room;
P.W.2 James Akpagu (whose evidence on this point was, really, hearsay) was told by “some children who were selling cigarettes” just outside the hotel that they saw the appellant
“running towards Port Harcourt Street”.
The learned trial Judge considered that he had enough evidence in the circumstances set out above to come to the conclusion (to use his own words) “that it was the 1st accused (i.e. the appellant) who inflicted the injury or injuries on the nose and right eyebrow of the deceased which injuries occasioned (sic) the death of the deceased on the 18th December, 1975”; he then sentenced the appellant to death. The Court of Appeal after a review of the case of Stephen Ukorah v. The State (1977) 4S. C. 167 to which they were referred came to the conclusion (again to use their own language) that the facts of that case (i.e. Ukorah) “are quite different from the circumstances of the present,” and
adopting the hearsay evidence of the children who sold cigarettes outside the hotel, supported the erroneous findings of the trial court that the appellant in fact pursued the deceased, holding a stick, as he did, along Port Harcourt Road until he found him and struck him down. The Court of Appeal then came to the conclusion (in manifest contradiction of Dr. Parlato’s testimony) that, in spite of the learned trial Judge’s reference to Exhibit 3 (which they earlier on held to have been wrongly admitted in evidence), they were satisfied that it was proper for the trial court to “draw the irresistible
inference that the fractures as described could not have been caused by the deceased hitting his face on the wooden door frame.”

…………………….G…………………….

My Lords, I am persuaded to the view that the learned Judges of the Court of Appeal were manifestly carried away by the hearsay evidence
of the cigarette sellers outside the hotel and like the trial Judge, also by their Patent reluctance, if not failure, to apply to the facts in this case the testimony (under cross-examination) of Dr. Parlato as to the manner the injuries on the deceased could have been received together with the wrong application by them of the principles of law relating to circumstantial evidence as stated by this court in Stephen Ukorah v. The State (Supra at p.176),
patently misdirected themselves in law and your Lordships, in the circumstances must depart from their findings.
As was stated in a passage in Emperor vs. Browning 39 I.C. 322 cited in Wills on Circumstantial Evidence; Seventh Edition (1936) at p.324 [approved by this court in Ukorah (Supra)]:
In a case where there is no direct evidence against the prisoner but only the kind of evidence that is called circumstantial, you have a two-fold task; you must first make up your minds as to what portions of the circumstantial evidence have been established, and then when you have got that quite clear you must ask yourselves, is this sufficient proof? It is not sufficient to say (as it seems to me, with very great respect, both the Court of Appeal and the trial court have done in these proceedings) ‘if the accused is not the murderer, I know of no one else who is. There is some evidence against him, and none against anyone else. Therefore, I will find him guilty. Such line of reasoning as this is (on the law applicable to circumstantial evidence manifestly) unsound . . . (Italics and brackets supplied by me).
As we indicated in Ukorah (Supra) there is great need for a trial court to tread cautiously in the application of circumstantial evidence for the conviction of an accused for any offence with which he is charged. The Romans – we pointed out, with approval, in Ukorah (Supra at p .177) – had a maxim that it is better for a guilty person to go unpunished than for an innocent one to be condemned: and Sir Edward Seymour speaking on a Bill of Attainder in 1696 laid greater emphasis on this maxim when he stated that he would rather “that ten guilty persons should escape than one innocent should suffer.” That also was our view in Ukorah (Supra). In my judgment, the decisions of both the trial court and the Court of Appeal in these proceedings are erroneous, and I agree with my learned brother, My Lord, Uwais J.S.C., that this appeal be allowed. Accordingly, I concur in the order proposed by My Lord, Sowemimo J.S.C. The appellant is hereby discharge and acquitted.
Judgment delivered by
Obaseki J.S.C.
I have had the pleasure and the privilege of reading the judgments of Sowemimo, J.S.C., Idigbe, J.S.C. and Uwais, J.S.C. delivered a short while ago and I agree entirely with their opinions on the question raised before us on the appeal.
The short point in this appeal, which is against conviction for murder, relates to the discharge by the prosecution of the burden of proof to entitle it to a conviction against the appellant.
The appellant was tried and convicted of the murder of Cyril Bishung by the Ogoja High Court (Esin, J.) on the 9th of June, 1977. His appeal to the Federal Court of Appeal (Douglas J.C.A. delivering the judgment) was unsuccessful and the conviction was affirmed. This is a further appeal the main ground being that:

…………………….H…………………….

The learned Appeal Court Judges were wrong to have upheld the judgment of the lower Court to find the appellant guilty of murder on the mere circumstantial evidence not cogent and compelling to warrant a conviction for murder in the circumstances.
The facts which have been fully set out in the judgment of my learned brother Uwais, J.S.C. will not be repeated herein save briefly as follows that there was a fight between the appellant and the deceased in the appellant’s room at Front Line Hotel, Obudu at about 7.00 p.m. on the 16th day of June, 1976. The struggle in the room attracted James Akpagu (P.W.2) and with the help of Godwin Uka (who was earlier on charged along with the appellant but discharged and acquitted at the trial) separated the two combatants and pushed the deceased out ofthe room. The appellant then armed himself with a stick and as he attempted to pursue the deceased, he was restrained by P.W.2. He struggled to free himself and in the course of the struggle, he shouted at P.W.2 “let me alone to pursue him”. He broke loose from the arms of P.W.2 and left ostensibly in pursuit of the deceased two minutes after the deceased ran out. It was dark, P.W.2 decided to follow. When he did follow and came out of the hotel P.W.2 did not know the direction the appellant went but some children selling cigarettes, following his enquiry from them, told him “Port Harcourt Street direction.” P.W.2 then ran to Port Harcourt Street, Obudu and there saw the deceased alone lying down with an injury – a wound on his forehead asking for help. The deceased did not tell him the person who attacked him but asked him to get his father.
Under cross-examination, part of P.W.2’s testimony reads:
“At the time the deceased ran out of the house, I was engaged in trying to restrain the first accused. I did not know what happened to the deceased at the door” I do not know whether the injury I saw on the deceased head was caused by his knocking his head against a door. ” (Emphasis mine)
These answers are significant because the appellant in his testimony in court and indeed also in his statement made to the police on the same day as the incident alleged that during the struggle in his room when the deceased tried to run out of the house, he hit his face against the frame of my room door.” He admitted that he tried to pursue the deceased but was stopped by P.W.2. I wish to observe that in his evidence-in-chief P.W.2 gave the impression that they pushed the deceased out of the room but this evidence under cross-examination gives the different impression that the deceased ran out of the house. what is surprising is that P.W.2 did not endeavour to give the deceased first aid or rush him to the police but left him in agony to procure the attention of his father.
Subsequently, Timothy Agida (P.W.4) at the request of Justina Azikpu (P.W.5) (both of whom met the deceased in agony on the road after P.W.2 had rushed to the house of the father of the deceased with information about the condition and request of the deceased) conveyed the deceased to the police station where the deceased found the appellant lodging a complaint of malicious damage. The police recorded the complaint of the deceased and took him to hospital for treatment. Dr. Pia Parlato saw him and admitted him for observation. This was in the night of 16/12/75. On examination before admission, Dr. Pia Parlato P.W. 1 observed the following injuries on the deceased –
(1) a small laceration on the bridge of the nose;
(2) another laceration on the right eyebrow;
(3) a grossly swollen right eyelid.
The evidence of P.W. 1 shows that the deceased’s general condition was allegedly good at the time of admission and he was admitted for observation” (italics mine).
The evidence revealed further that on 17/12/75, his general condition was satisfactory, then on the 18/12/75 it took surprisingly serious turn for the worst. He had transient episodes of restlessness and was semi-comatose at times and he died at about 9:40p.m.

…………………….I…………………….

On performing the autopsy on the 19/12/75 at 8.00 a.m. P.W.1 found, upon dissection of the skull –
(1) linear slightly depressed fracture of the frontal bone just above the nose
(2) and another depressed fracture on the right eyebrow
(3) there was comminuted fracture of the right orbital plate with displacement of splinter fragment
(4) also observed extradural haemorrhage on the frontal orbital bone.
The doctor expressed the opinion that death was due to the above injuries. It was only under cross-examination that she gave the possible causes of those injuries. She ascribed them to a heavy direct force. This was expressedly stated in her evidence under cross-examination which reads:
All the head injuries are due to heavy direct force. These are consistent with injuries caused if a person ran against a heavy object. (italics mine)
The learned trial judge after a detailed analysis of the evidence before him correctly stated the task (issue) before him when he said:
What I have to determine is whether these injuries were inflicted by the 1st accused.
He also appreciated the magnitude of the task when he said:
There is no direct, eye witness evidence of how the deceased received the injuries on his head. There has been some argument by counsel as to whether the answers elicited by questions put to the deceased by P.W.3, P.W.4 and P.W.8 IPC and Exhibit 2 a statement signed by the deceased the night before his death, are admissible as dying declarations or not. Mr. Agabi learned counsel for the accused person says they are not, but the learned Senior State Counsel, Mr. Ekanem, submits they are. As this judgment is not in any way affected or influenced by these sources of evidence, it is quite unnecessary to resolve the issue here.
The learned trial judge also rejected the evidence of the appellant on the issue that the deceased ran against his door frame; but he did not reject the evidence of P.W.1 that the injuries were consistent with injuries from running against heavy object. Having excluded or rejected the appellant’s evidence as the source of the injury, the learned trial judge must of necessity explore the whole world for source of “heavy direct force” to get an answer. Even then, since the doctor did not testify as to other possible causes of the injury besides “running against a heavy object” he is left without any other compass to assist him in the sea of forces.
It was therefore, surprising to observe the jubilant conclusion of the learned trial judge when he said in his judgment –
Although no one saw how the injuries which caused the deceased’s death were brought about or inflicted, yet there is strong circumstantial evidence as to how they were caused and as to who caused
them. (italics mine)
Concluding, he said:
In both his evidence in court and in Exhibit 10, his statement to the police, P.W.2 James Okpaku said the first accused person got hold of a stick and pursued the deceased. The witness said he tried to stop the 1st accused but the latter shouted at him and said ‘let me alone to pursue him’ and threatened to hit him with the stick. He said the 1st accused then ran out of the Hotel and followed the deceased, about two minutes after the deceased had himself left the place. He said he came outside and asked some children in what direction the deceased and 1st accused ran, and on being told Port Harcourt Street, he ran to the street.

…………………….J…………………….

There he found the deceased lying on the ground and observed a wound on his head. . . “I therefore find that it was the 1st accused who inflicted the injury or injuries . . . which injuries occasioned death.” (italics mine)
Of this aspect of the case, the learned Justices of the Court of Appeal observed:
From the evidence of P.W.2 as to how the appellant picked up a stick and pursued the deceased who had run out from his room P. W.2 himself following the appellant almost immediately after and then finding the deceased lying down helpless on the ground with injuries on his head with severe bleeding (see evidence of P.W.4) there can be no other reasonable conclusion which a trial court could have reached than that those injuries were inflicted by the appellant on the head of the deceased. (italics mine)
If, with P.W.2 closely following, the appellant had stopped to use the stick on the deceased P.W.2 would have caught up with him and seen him use the stick on the deceased.
The only medical evidence before the court described those injuries as being consistent with injuries caused if a person ran against a heavy object. There is no evidence that these injuries are consistent with injuries caused if one is beaten with a stick. The appellant’s counsel’s submission on the only ground argued was therefore in the light of the evidence short and to the point.
It is “that there is no irresistible conclusion from the evidence as a whole that it was the appellant that hit the deceased and inflicted the injuries which caused the death”. Learned counsel drew our attention to the evidence of P.W.2 for a close study and reappraisal to see if it was really as strong circumstantial evidence as the learned trial judge concluded. He pointed out that there was no evidence that the appellant and the deceased ever met on the road and that the evidence of the source of the injury given by the doctor P.W.1 in court though contradictory to Exhibit 3 does not support the judgment of the High Court and Federal Court of Appeal.
It is, with the greatest respect to the learned trial judge and the learned justices of the Federal Court of Appeal, that I say that the evidence of P.W.2 cannot and does not answer the question of the source of the heavy direct force that caused the injuries. The position was not improved by Exhibit 3 (Report of Post Medical Mortem examination issued by P.W.1 and wrongly admitted through P.W.7).
In it P.W.1 certified as follows:
I certify the cause of death in my opinion to be due to above head injuries due to an heavy blow.
What is a heavy blow? Was it a heavy blow with a fist, a plank, a stick, an iron, a rock, from a falling object, from a car, a motor cycle or what? There is no indication from the evidence on record. The absence of this vital link from the evidence of P.W. 1 goes to show the weakness in the chain of circumstantial evidence, which the learned trial judge regarded as strong. The chain of evidence was therefore not complete to link the crime with the stick allegedly held by the appellant when he decided to pursue the deceased. There is no evidence circumstantial or otherwise, which conclusively established that the injuries, which caused the death, was attributable to the application of the stick. Of course the stick was not described. Was it a big stick, a small stick, a thin stick; was it a strong or weak stick? There was no answer.
On circumstantial evidence, Lord Normand, delivering the reasons for the judgment of the Privy Council, in the case of Lejzor Teper v. The Queen (1952) A.C.480 (an appeal from the Supreme Court of British Guyana) said at p.489
Another result is that the Crown has to rely on circumstantial evidence only to connect the appellant with the commission of the crime’ Circumstantial evidence may sometimes be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion
of another. Joseph commanded the steward of his house: ‘put my cup the silver cup in the sack’s mouth of the youngest’
and when the cup was found there, Benjamin’s brethren too hastily assumed that he must have stolen it.’

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It is also necessary before drawing the inference of the accused guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. (italics is mine)
I would repeat these warnings for they are very apposite in this case on appeal. Be it noted that the superficial injuries observed by P.W. 1 on the deceased when admitted on 16/12/75 were not the cause of the deceased’s death although the learned trial judge’s judgment seemed to suggest they were. The cause of death were the deep-seated injuries of fractures of the cranial bones or skull bones disclosed only when the skull was dissected and the cause of which was a heavy direct force.
The ascription of these injuries to the application of a stick, which was not produced, the size of which was not testified to or ascertained, and which was not acknowledged by the doctor P.W.1 as capable of causing the injuries is a serious misapplication of facts and miscarriage of justice. The chain of evidence necessary to lead irresistibly to the guilt of the appellant is not complete in this case. It may well be helpful to remind ourselves what circumstantial evidence is –
Circumstantial evidence is as good as, sometimes better than any other sort of evidence, and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete unbroken chain of evidence. If that is established to the satisfaction of the jury, they may well and properly act upon such circumstantial evidence.
This dictum of Humphrey J. in Rex V. Miao cited in Wills on Circumstantial Evidence 7th Edition(1936)p.224 which defines circumstantial evidence was adopted with a p proval by this court in the case of Stephen Ukarah v. The State
(1977) S.C .167 delivered by Idigbe, J.S.C., at page 174 – our most recent authority on circumstantial evidence.
Apart from the failure to tie up the causation of the type of injuries found on the skull of the deceased at post mortem with the stick, the appellant was alleged to have armed himself with, there is the fact that P.W.2 never knew the direction the appellant traveled after breaking loose from his grip. The information he acted on was received from the children selling cigarettes outside the hotel. The children were not named and were not called to testify. P.W.2 never met the appellant at any point along Port Harcourt Street and there is no other evidence accepted by the learned trial judge to connect the appellant with Port Harcourt Street where the deceased was found mortally wounded on the head. The evidence that the appellant pursued the deceased along Port Harcourt Street was hearsay, inadmissible and highly prejudicial. It did not lead to the discovery of the appellant in the street but was used to link the injury found on the deceased with the appellant’s take-off from the arms of P.W.2 in the hotel room. The best that can be said of it was that it cast serious suspicion on the appellant. In his search for the answer to the question whether the injuries were inflicted on the deceased by the 1st accused appellant, the learned trial judge acted on it to the detriment of the appellant as is evident from the passage in his judgment already set out above but which for convenience and clarity is reproduced again. It reads –
There is no direct (i.e. eye witness) evidence of how the deceased received the injuries on his head……….
In both his evidence in court and in Exhibit 10, his statement to the police, P .W.2 James Okpaku said the first accused got hold of a stick and pursued the deceased.

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The witness said he tried to stop the 1st accused but the latter shouted at him and said ‘let me alone to pursue him’ and threatened to hit him with the stick. He said the 1st accused ran out of the hotel and followed the deceased about two minutes after the deceased had himself left the place. He said he came outside and asked some children in what direction the deceased and the 1st accused ran and on being told Port Harcourt Street, he ran to that street There he found the deceased lying on the ground and observed a wound on his head.….
The 1st accused has not also disputed the fact that the deceased had an injury on his head but explains that the injury was caused when the deceased hit his face on the wooden frame of his door. I do not
accept this explanation. The doctor said there were two lacerations on the deceased’s face, one on the bridge of the nose and the other on the brow of the right eye. Under cross examination, she said the two wounds were due to ‘heavy direct force’. (This is not the correct impression conveyed by the doctor’s evidence.) In Exhibit 3 her report on the autopsy, she certified that the cause of death was the head injury (meaning I take it, the two lacerations) due as she puts it ‘to an heavy force’. No . . . accidentally self-inflicted injury could in the circumstances in which the 1st accused said the fight took place result in so grave an injury as those in this case
Neither he (D .W .3) nor any of the other accused persons impressed me as a person with any . . . appreciation of the value or virtue of veracity in court proceedings. I therefore find that it was the 1st accused who inflicted the injury or injuries on the nose, and right eyebrow of the deceased which injuries occasioned the deceased’s death on the . . .18th of December, 1975.” (italics mine)
It cannot be doubted that the evidence that the appellant went the same direction as and in hot pursuit of the deceased was highly prejudicial and influenced the trial judge.
It is my opinion that the learned trial judge and the learned justices of the Court of Appeal were misled by this piece of hearsay evidence. Such hearsay evidence featured prominently in the case of Lejzor Teper v. The Queen (1952) A. C. 480 which I find very much on all fours with the present case. That was a case of Arson. The head note from the Report reads:
At the trial of the appellant on a charge of maliciously and with intent setting fire to a shop in which he carried on the business of a dry goods store evidence given by a police constable was admitted for the purpose of identification and without objection that –
I heard a woman’s voice shouting, your place burning and you going away from the fire; immediately ‘then a black car, came from the direction of the fire and in the car was a fair-man resembling the accused. I did not observe the number of the car. I could not see the face from where I was standing.’ In cross-examination he said that he did not know who or where the woman was. She was not a witness at the trial and it was common ground that the incident took place at a distance of more than a furlong from the site of the fire and that it happened not less than 26 minutes after the fire was started
Held: that the words spoken by the woman did not form part of the res gestae and were not therefore excepted from the fundamental rule against admission of hearsay evidence. The evidence was wrongly admitted, and there being no other evidence of identification which was of any value and the circumstantial evidence which alone the Crown had to rely on to connect the appellant with the commission of the crime being inconclusive the purpose, the conviction was set aside.

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Lord Normand at p.491 observed –
The circumstantial evidence falls short of ………. conclusiveness and a properly instructed jury having it alone before it would have had a more than usually difficult decision to make ……..
It is now necessary to consider whether admission of Catos hearsay evidence was having regard to the weakness of the other evidence “something which deprived the accused of the substance of a fair trial and the “protection of the law.
Ibrahim v. The King (1914) A.C. 599;
Renouf v. Attorney-General for Jersey
(1936) A.C. 445; Dharmasena v. The King
(1951)A.C. 1.
It is a principle of the proceedings of the Board that it is for the appellant in a criminal appeal to satisfy the Board that a real miscarriage of justice has occurred.
The dominant question before us is the broad one of whether substantial justice has been done and whether looking at the proceedings as a whole and taking into account what has properly been proved the conclusion come to by the learned trial judge and the justices of the Court of Appeal has been a just one. (Dal Sing v. The King (1917) L.R. 44 I.A. 137, 146.) I have in the end to decide whether the appellant has shown that the improper admission of the hearsay evidence of P.W.2 regarding pursuit of the deceased by appellant along Port Harcourt Street was prejudicial to the appellant where the rest of the evidence was weak that the proceedings as a whole have not resulted in a fair trial. I am satisfied that the hearsay evidence was in a high degree prejudicial. The effect may be gauged by considering what P.W.2’s evidence would have amounted to if it had been excluded. He could then have said that in consequence of what the children told him he went along Port Harcourt Street. This evidence would have been worthless for the purpose of establishing that the appellant pursued the deceased along Port Harcourt Street in view of the evidence that the appellant went to the police station and was at the police station long before the deceased arrived.
It is impossible to avoid the conclusion that the learned trial judge might well and probably did regard P.W.2 hearsay evidence as the only vital link.
It may be said that the fact that no objection was taken to it at the trial should be allowed to have some bearing whether the accused was really prejudiced (Stirland v. Director of Public Prosecution (1944) A.C. 315). That is a consideration which weighs in a case where the evidence improperly admitted would not by its nature cause serious prejudice or where the other evidence left little or no reasonable doubt of the appellant’s guilt. It is of no real moment in the present case.
The highly prejudicial nature of the hearsay evidence of P.W.2 together with the failure of the prosecution positively to establish that the head injuries which caused the death were capable of being inflicted with the stick the appellant was alleged to have armed himself with shows conclusively that the prosecution failed to discharge the onus of proof cast on them by our law. It was not for the appellant to prove that the stick he held did not and could not cause the injuries. It is for the prosecution to p rove that its use caused the injuries. The burden does not shift. The standard of proof required is very high. On this point, Lord Diplock says –
In criminal proceedings, by an exception to the general rule founded upon considerations of public policy. If the consequence of a finding that a particular fact is proved will be the conviction of the defendant the degree of probability must be so high as to exclude any reasonable doubt that that fact exists.

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Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact; it is sufficient for his acquittal if any of the acts, which, if they existed, would constitute the offence with which he is charged are ‘not proved’ Per Lord Diplock in Public Prosecutor v. Yuvavaj (1970) A.C. 913 at 921. (italics mine)
In my view, the evidence on record falls short of proving conclusively that the appellant inflicted the injuries which terminated the life of the deceased.
For the above reasons, I agree with my learned brother the Hon. Justice Uwais, J.S. C. that this appeal be allowed and I hereby allow it. The judgment of the High Court, Ogoja (Esin J.) dated 9th June, 1977 together with the judgment of the Federal Court of Appeal dated 1st day of June, 1978 affirming the conviction of the appellant and the sentence of death passed on him are hereby set aside and a verdict of “Not Guilty” and acquittal is hereby entered in favour of the Appellant.
The Appellant is hereby discharged and acquitted in concurrence with the order proposed by Sowemimo, J.S.C.
Judgment delivered by
Nnamani J.S.C.
On the 9th day of June 1977, Esin J. sitting at the Ogoja High Court convicted the appellant of murder contrary to Section 319 of the Criminal code. The Appellant appealed to the Federal Court of Appeal Enugu Judicial Division which, after a full examination of the facts of the case and the law, held on 1st June, 1978 that “there is no merit in this appeal and it is accordingly dismissed” It is from that judgment that the appellant has appealed to this Court. I must pause here to state that I agree with the leading judgment of my learned brother Uwais
J. S.C. just delivered.
I wish, however, respectfully to take the liberty of making a few remarks on some of the areas in which I agree the Federal Court of Appeal erred. This appeal has turned on the question of the conclusiveness or otherwise of the circumstantial evidence. The Federal Court of Appeal reviewed the evidence and the law extensively with regard to the issue of circumstantial evidence, but in my view came to the wrong conclusion. That there was some evidence before the trial Judge pointing to the appellant as the possible culprit cannot be doubted. Without reviewing the facts of the case, I may just refer to some of them for purposes of argument. There is the fact, that this tragedy started on the fateful day with the quarrel between the deceased and the appellant in the football field; then there was the fight between both of them in the Front Line Hotel, Obudu – a fight in which the appellant, according to his statement to the police Exhibit 1, received several blows and had his property damaged; then there was the testimony of James Akpagu P.W.2 that the appellant got hold of a stick and pursued the deceased. This was contained in P.W.2’s evidence-in-chief in court which was accepted by the trial Judge) and in Exhibit 10 his statement to the police. In fact under cross examination the appellant had stated –
I wanted to pursue the deceased because he came and fought me in my house and destroyed my property. I wanted to fight the deceased when I tried to pursue him. I did not see the deceased after he left the house
Both P.W.4 and P.W.5 testified that they found the deceased lying seriously injured in Port Harcourt Street, Obudu. There is also no doubt that the deceased died from head injuries, which could have been caused by a stick as appears to be the contention of the prosecution or by the deceased hitting his head on the frame of a door as put up by the appellant in his defence. My learned brother Uwais J.S.C. has dealt with all the evidence in greater detail (including the medical evidence) and I agree with him that when all the circumstantial evidence is taken together they do not lead to the irresistible conclusion that the appellant, and no one else, was the murderer.

…………………….O…………………….

In
Majekodunmi v. The Queen 14 W.A.C.A. 64.
Foster-Sutton P. (as he then was), dealing with circumstantial evidence stated at p.69
In view of the conflict and discrepancies in the evidence of the prosecution can it be said that the case against the appellant was proved with that certainty which is necessary in order to justify a verdict of guilty? …… Moreoever we are not satisfied that the only inference that can be drawn from the evidence given at the trial is one of guilt…….
See also Spiff v. Commissioner of Police 19 N.L.R. 81 and the views of this Court in Stephen Ukorah v. The State (1977) 4S.C. 167 at pp.176
et seq, and Udo Akpan Essien v. The State
(1966) N.M.L.R. 229.
The other matter that I wish to add in my remarks is on the admission of the medical report exhibit 3 and its prejudicial effect on case of the appellant. Dr. Pia Parlato gave evidence at the trial as P .W.1. In the course of her testimony a medical report which she issued on the cause of death of the deceased and which she handed to the police was tendered as identification A. She was not cross-examined in relation to this report. The report was tendered by Noel Ikpo P.W.8 in his evidence-in-chief. Before us the Deputy Director of Public Prosecutions, Cross River State conceded that the medical report was wrongly admitted. He referred to an Edict of the Cross River State, which makes such a report admissible. The Edict was not produced before us and I am unable to find it. In any case, learned counsel for the respondent had said that the instant case occurred before the said Edict came into effect. In their judgment, the Federal Court of Appeal reviewed the evidence which they held were clearly inadmissible. These included the hearsay evidence of P.W.3, P.W.4, P.W.8 and Exhibit 2 the statement of the deceased to the police. They obviously intended to include Exhibit 3 in this class but about it they merely said:
There was no need to have admitted that exhibit in view of the evidence of P.W.1 herself. We agree with the submission of learned counsel that the only use to which the report might have been made was for the doctor to have been allowed to refresh her memory with it and the defence would then have been entitled to see it and cross examine on it, in which case it might have been produced in the doctor’s evidence-in-chief. (italics mine)
In my view this was putting the issue rather mildly. The medical report was wrongly or improperly admitted in evidence and the trial Judge should not have had recourse to it. In
David Ifenado v. The State (1967) N.M.L.R. 200, a decision of this Court which was relied on by the Federal Court of Appeal, the doctor after his evidence in chief produced a medical report which was received in evidence. Brett, J.S. C. (delivering the judgment of the Court) held that
It was clearly inadmissible at that stage. The Doctor might properly have been allowed to refresh his memory from the report under Section 215 of the Evidence Act and the defence would then have been entitled to see it and cross-examine on it, in which case it might have been produced in evidence but it ought not to have been admitted at the trial in the evidence-in-chief. (italics mine)
This case was followed in Owanso Agbeyin v. The State (1966) N.M.L.R. 129. In the cases of
Suwa and Another v. The State (1965) N.M.L.R. 405 and Idirisu v. The State (1968) N.M.L.R. 88 where the issue of admissibility of medical reports came before this court, the decisions turned on other matters as the reports were properly admitted under section 249(3) of the Criminal Procedure Code Cap. 30 Laws of Northern Nigeria. It is true that in the Ifenado and Agbeyin cases (supra) the offending medical reports were tendered after the evidence-in-chief of the doctor while in the instant case the report was tendered by P.W.8. The medical re p ort was as stated supra taken in for identification during the evidence-in-chief of the doctor but if the P.W.8 had to tender it, it would only be as something he obtained in the course of his investigation. I think that it can be deduced from Ifenado’s case that in the circumstances it is at the stage when the defence counsel has to cross-examine on the report that it can be received in evidence.

…………………….P…………………….

There will be of course other circumstances in the course of the trial in which the report can be properly received in evidence.
On the effect on the appellant’s case of the wrongful admission of evidence, the Federal Court of Appeal, erroneously in my view, came to the conclusion that the appellant was not prejudiced. They stated at p.6 of their judgment
In the present case as we have already pointed out the evidence in chief of P.W.2 covered these aspects of inadmissible evidence now complained of by the learned counsel for the appellant and it is
our view that in no way was the appellant ever prejudiced. This view also applied to the admission of Exhibit 3 i.e. the medical certificate of P.W. 1………. (italics mine).
There is no doubt in my mind that the appellant was prejudiced by the admission of Exhibit 3. In her evidence in court P.W.1 in cross-examination stated
All the head injuries are due to heavy direct force, these ones are consistent with injuries caused if a person ran against a heavy object.
This evidence would have been more consistent with the appellant’s story that at the end of the fight in his room in the hotel on the fateful day the deceased in trying to run out hit his head on the panel of appellant’s door. This evidence was disbelieved by the Judge. But in exhibit 3, the medical certificate, the doctor said
I certify the cause of death in my opinion to be due to above head injury, due to an heavy blow.
This was clearly the version, which the trial Judge accepted for in his judgment, he said in part
In Exhibit 3 her report of the autopsy, she certified that the cause of death was the head injury (meaning I take it the two lacerations) due, as she put it, “to an heavy blow”. No accidentally self inflicted injury could, in the circumstances m which the first accused said the fight took place result in so grave an injury as those in issue in this case . . .I therefore find as a fact that the first accused inflicted the injuries on the nose and right eyebrow of the deceased which injuries occasioned the deceased’s death on the 18th December, 1975.
The medical certificate made a great difference to the decision, which the learned trial Judge reached. If Exhibit 3 had not been in evidence before him, he may well have given more credence to the defence of the appellant, which was more consistent with the medical opinion given by the doctor in her evidence-in-chief. The Federal Court of Appeal referred to but wrongly applied section 226(1) of the Evidence Law, which enacts:
The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.
For the reasons already given I am not convinced that the decision would not have been different if Exhibit 3 had not been received in evidence. See Queen v. Olubunmi Thomas
(1958)3 F.S.C. 8.
I agree with my Lord Uwais, J.S.C. that the appeal should be allowed. It is hereby allowed. I concur with the order proposed in the judgment of the Presiding Justice, my Lord, Sowemimo J.S.C. The appellant is discharged and acquitted.

Appeal allowed.

Counsel
C. V. Ikejiofor Esq. …….. For the Appellant
A. Aniaja Obi Esq, DPP. Cross River State …….. For the Respondent

Judgment

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment) : The appellant and 6 (six) others were charged before the High Court of Imo State in Owerri Judicial Division with the offence of murder of one Chief (Sir) Augustine Ndukwu on 4th November 2010, Contrary to Section 319 (1) of the Criminal Code, Cap 30 Vol. 11, Laws of Eastern Nigeria, applicable in Imo State. The plea of the accused persons including the appellant was taken on 31st October, 2010. The 1st accused person Uchenna Ndukwu pleaded guilty while the others, including the appellant pleaded not guilty.

Even though the 1st accused person pleaded guilty to the charge, the trial Judge in consonance with the principle of law in Criminal trial involving Capital offences entered a plea of not guilty for him. In the bid to prove the offence as contained in the charge, the prosecution (Respondent herein) called six witnesses and tendered the extra-judicial statements of the accused persons which were admitted in evidence as Exhibits. The accused persons including the appellant entered their defence.

Thereafter counsel on both sides addressed the Court, following which the trial Court adjourned for judgment. In the judgment delivered on 13th February, 2013, John Emesiobi and Vincent Emesiobi (2nd and 7th accused persons respectively) were discharged and acquitted, while the rest, 1st, 3rd, 4th, 5th and 6th accused persons were convicted and sentenced to death by hanging. The appellant (3rd Accused) is aggrieved with his conviction, and therefore filed an appeal to this Court. The Notice of appeal was filed on 11//3/13. The Notice of appeal contains two (2) grounds of appeal.

On due compilation and transmission of the record of appeal, the appellant proceeded to file his brief of argument. The brief of argument settled by his counsel, Madubuko Izuchukwu, Esq. was filed on 18/11/20 and deemed properly filed and served on 9/2/21. In reaction to the Appellant’s brief of argument, the Respondent filed her brief of argument settled by C.O. Chukwumaeze, Esq., Principal State Counsel, Imo State Ministry of Justice on 12/11/21. It was deemed properly filed on 9/2/2021.

The appellant filed a reply brief on 24/1/22, and deemed properly filed on 9/2/21. ​The briefs of argument were adopted on 24/01/22.

In the appellant’s brief of argument, the three issues were identified for determination: (I) Whether the prosecution investigated the defence of alibi raised by the appellant on this charge and the effect of failure to do that in the circumstances of this case. (II) Whether the prosecution proved this charge against the appellant beyond reasonable doubt to warrant his conviction of it. (III) Whether the trial Court properly evaluated the evidence before him concerning the Appellant.

The respondent in her brief of argument formulated two issues for determination to wit: – (I) Whether by the evidence and exhibits before the Court, the trial Court was not right in convicting the appellant as a party to the offence, his plea/defence of alibi having failed. (II) Whether in view of the well considered facts and proper evaluation of the evidence(s) before the lower Court, the judgment of 18/2/2013 is not a fair judgment and ought to be sustained. ​Argument on the issues It is contended by the appellant that where a person is accused of committing a criminal offence, the onus is on the prosecution to prove the charge against him beyond reasonable doubt.

It is submitted that the essential ingredients of the offence of murder are:- (a) That the deceased died. (b) That the death of the deceased was caused by the accused. (c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. The case of Michael v. State (2008) All FWLR (Pt. 431) 875 was referred to. Counsel drew the attention of the Court to the holding of the Court which was the basis of his conviction.

The Court said: “He (appellant) knew how the 1st accused got his wound in his hand. He saw 1st accused that evening and knew how he got his wound. I am convinced that he was a party to the killing of the deceased”. ​Counsel submits that there is no material evidence before the Court which satisfies the requirement of proof beyond reasonable doubt. It is further submitted that DW4 (1st accused) confessed that he killed the deceased. That in addition, the appellant set up alibi which was not investigated by the police.

This is in addition to the fact that the evidence against the appellant is weak. It is contended by the appellant that he set up the defence of alibi, and stated where he was, which is, elsewhere other than where he was alleged to have committed the offence. That he thus discharged the evidential evidence on him, by providing details of where he was but the police did not bother to investigate it. The prosecution, counsel submits did not lead any strong evidence connecting the appellant with the commission of the offence. That they did not debunk the alibi that he raised.

On the effect of a failure to cross-examine a witness on a material fact, it is submitted that the implication is that the adversary accepts the matter as led in evidence. Reliance is placed on the case of Oforlete v. The State (2009) 8 ACR, Vol. 8 page 398. It is further submitted that the standard of proof required to establish alibi is one based on balance of probabilities. Further on alibi, the cases cited, include Obalum Anakwe v.

The State (1976) 10 SC 225 p. 264. ​Submits that before a Court may draw inferences of guilt, it must be sure that there are no other co-existing circumstances that would weaken such inference. Counsel refers to the aspect of the trial Court’s judgment where the learned trial Judge allegedly found that the appellant was neck deep in the whole episode of the murder of the deceased, and submitted that none of the prosecution witnesses mentioned anything like that in their various statements to the police in the course of investigation or in Court.

Submits that the appellant should be entitled to the benefit of doubt where doubt is created by the inability of the police to investigate the alibi raised at the earliest time. Reliance is on the case of The State v. Aibanbee & Anor (1988) 7 SCNJ 128. The Court is therefore urged to discharge and acquit the appellant having allowed the appeal. Respondent’s counsel submits that the ratio decidendi of the judgment is not the trial Judge’s statement that the appellant was neck deep in the whole episode.

The ratio decidendi, counsel submits is that the appellant was a party to the killing of the deceased. Referring to the alibi set up by the appellant counsel submits that the alibi at one breath removed him from home on the date of the incident and in another placed him at home throughout the day of the incident. That inherent in the alibi is contradiction, which counsel submits is material. That in this instance, the Court cannot pick and choose which evidence to believe and which to disbelieve.

On the issues submitted by the appellant for determination, it is submitted for the respondent that why one of the three issues was argued while the other was abandoned. Revisiting the defence of alibi raised by the appellant, it is submitted by respondent’s counsel that the appellant raised it and went to sleep without establishing it. In further argument to support appellant’s conviction, it is submitted for the respondent that the appellant took part in the offence, and cites in support Section 7 (a), (b), & (c) of the Criminal Code. Also cited is George v.

FRN (2011) 10 NWLR (Pt. 1254) 1. ​Counsel pointed out that DW2, John Emesiobi convened a meeting at his house where the 1st accused (appellant’s brother) and other accused persons were present and conspired to kill the deceased. That the mere fact that the appellant was not present physically at that meeting is not conclusive that he is innocent or not part of the conspirators to the offence. Explaining further the concept of conspiracy, the Court is referred to the case of Oyediran v. Republic (1967) NMLR 122. Submits that the elements that define conspiracy are found in the instant appeal.

Specifically, counsel refers the Court to pages 77–95 to the evidence of PW1 as to what the appellant did on the day the body of the deceased was retrieved during the search. That the appellant drew the attention of the search team to the direction that the deceased body was found in the bush. That the evidence of PW1 as to what the appellant did during the search was corroborated by the evidence of PW2 (Edwin Nwabueze Ndukwu) who it was that reported and invited the police. That the appellant was heard to say – “Bianu ebe oo”, and when he was asked what happened, he was mopping at them.

That the defence did not cross-examine the witness on that piece of evidence, therefore, counsel submits that Court is entitled to accept and act on it, the case of Patrick Oforlete v. The State (2000) All FWLR (Pt. 12) 2081 was cited in support of this submission.

It is contended that the 1st, 3rd and 5th accused persons are siblings. Therefore, counsel submits it stands to reason and commonsensical that the 1st accused intentionally pleaded guilty to the offence and claimed that he did it alone to save his other siblings. The law, further submitted by counsel is trite that sentiments no matter how well crafted commands no place in law. Submits that the judgment is without fault and is a product of proper evaluation of the evidence before the Court which the trial Judge rightly ascribed probative value to.

It is therefore contended that the judgment is not perverse. On the proper Court that can evaluate evidence being the trial Court, not a few cases are cited, and they include Famoroti v. FRN (2016) All FWLR (Pt. 856) 366 at 397 paras F–A, Ratio 7; Shamaki v. Baba (2000) All FWLR (Pt. 26) 1878 at 7888, paras D–E, ratio 6, Okala v.

Udah (2019) All FWLR (Pt. 1021) 203 at 231 to 232 paras B–A, P. 206; to mention but some. ​Therefore, counsel submits, the evaluation of evidence on record having been properly and rightly done, and probative values ascribed thereto, the appellate Court is deprived of the vires to interfere with it. All the submissions of the appellant’s counsel should be discountenanced, it is further contended for the Respondent. The Court is therefore urged to dismiss the appeal as same is lacking in merit.

RESOLUTION: All the issues formulated and argued by the appellant and the respondent coalesce to one broad issue, which is, whether the charge of murder was proved beyond reasonable doubt against the appellant to warrant his conviction. A convenient and instructive starting point is the burden and standard of proof. The law is settled that the standard of proof is beyond reasonable doubt while the burden is on the prosecution. See the following cases: – Agugua v. The State (2017) LPELR–42021 (SC), P. 38, paras B–F, Tobi v. The State (2019) LPLR–46537 (SC) P.24, paras C–D, Edun & Anor v.

FRN (2019) LPELR–46947 (SC) P. 12. ​It has also been established in law that the guilt of an accused person can be proved in three ways, to wit: (I) By eye witness account of the Commission of the offence, (II) By confessional statement of the accused person, (III) By circumstantial evidence. The following judicial authorities are instructive: James Afolabi v. The State (2016) LPELR–40300 (SC), PP. 51–52 paras F–B, Demo Oseni v. The State (2012) LPELR–7833 (SC), P. 41, paras B–C, Darlington Eze v. FRN (2017) LPELR–42097 (SC), P. 63, paras C – E.

A careful review of the evidence adduced in this case reveal quite clearly that there is no eye witness account of anyone who saw the appellant either by himself alone, or acting in concert to murder the deceased, Chief (Sir) Augustine Ndukwu. It is also correct to state that the appellant did not confess to the murder of the deceased. Apart from there being no evidence on record to the appellant either murdering the deceased or confessing to his murder, the judgment of the trial Court, particularly the finding attest to the position which I humbly hold.

The learned trial Judge at pages 294–295 made the following findings concerning the 3rd accused person, who testified for himself as Dw3: “Then over to the case of DW3 – Ekene Ndukwu. His counsel stressed the point that 1st accused had already claimed personal responsibility for the murder of the deceased. This issue I must straightaway discountenance as no reasonable tribunal will believe that 1st accused did the murder single handedly.

This being so, counsel submitted further that the prosecution linked him with the murder because according to them his conduct that night of the search was indicative that he had some knowledge of the murder. He tried to say that during the search according to PW1, 3rd accused said – “Wetanu oku ebeaoo” meaning – bring light to this place. PW2 in his evidence said “Biano ebeo” meaning come this way. He submitted that these two statements are contradictory and not explained. He cited the case of EBONG VS. STATE (2012) ALL FWLR Pt. 633 1945 at 1978 to buttress this contention.

He further stated that the statements are based on suspicion and as held in the case of TORRI VS. NATIONAL PARK SERVICE (2011) VOL. 7 Pt. 300 pg. 2239, suspicion, no matter how strong, cannot ground conviction on the side of the prosecution. PWS 1 and 2 during the search overheard DW3 utter the words. This was to direct the team even though when the team got to where he was, nothing could be seen. It was only when the team entered the bush that they discovered the bodies of the deceased and his gardner. This piece of evidence the defence did not destroy.

It was this DW3 who move or else drew attention of the search party to the place of discovery. The defence did not destroy this evidence which was corroborated by both PWS. 1, 2 and 3. The words “wetanu oku ebeo” and “Bianu ebeoo” all are taken to mean simply drawing attention to a particular place. We are not here doing a case of slander where all those who heard the word must hear the same thing said in the way it was said. There was a confusion team practically searching for the body of the deceased and in the night. Anyone knowing the spot is not precluded from showing the way.

Moreover, it must be remembered that this was in the night hence the use of light. When he was confronted as the team saw nothing where he was standing he simply kept mute and only continued to mope. This is more than suspicion. The defence had all the chance in the world to debunk this piece of evidence but either did not know, did not want or better still neglected to do so. In the Supreme Court case of PATRICK OFORLETE VS.

THE STATE (2000) FWLR Pt. 12 Pg. 12 2081, it was therein held that there – “The Court is entitled and indeed bound to accept evidence unchallenged under cross-examination, provided such evidence by its nature is not improbable”. 3rd accused was neck deep in the whole episode. Looking at Exh. 8, one can also see that he knew how 1st accused got his wound in his hand. He saw 1st accused that evening and knew how he got the wound. I am convinced that he was party to the killing of the deceased and so find him guilty as charged”.

It is therefore apparent from the foregoing that the conviction of the appellant is based on circumstantial evidence. Let me digress at this juncture to state what the prosecution must prove in order to sustain a conviction for the offence of murder. ​To sustain a conviction for charge of murder, the following ingredients must be proved: (1) That the deceased had died (2) That the death of the deceased had resulted from the act of the accused person; (3) That the act of the accused which caused the death or grievous bodily harm was its probable consequences. See the following cases: Mayaki v.

The State (2008) U SCM 49 at 59–60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras G–I. It is instructive to note that the 1st accused who was jointly tried with the appellant made a confessional statement that he alone murdered the deceased. He repeated this in his defence. The prosecution did not believe him. The Court too did not believe him. Whether the Court believes him or not is not material because even if he had in his extra-judicial statement and his evidence in Court incriminated the appellant, the appellant except he adopts such confession or statement will not be bound.

See the following cases – Tiremisuyu Adebayo v. The State (2014) 8 SCM 34 at 65 para 6, The State v. James Gwangwan (2015) 9 SCM 253 at 271, paras D–G. See Section 29(4) of the Evidence Act, 2011.

All these go to show that the prosecution could only succeed in proving the guilt of the appellant based on the evidence adduced by it which proves the appellant’s guilt beyond reasonable doubt. ​This leads me to the consideration of the kind of circumstantial evidence on which an accused person can be convicted for a criminal offence, and in the instant case of murder, the ingredients of which I had earlier set out. The criminal jurisprudence is replete with several definitions of circumstantial evidence, all of them leading to one common or general effect. In the case of Musa Mamman v.

The State (2015) LPELR–255963 (CA), circumstantial evidence was thus defined: “Now, circumstantial evidence is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and/or precision of mathematics. It is not a derogation of evidence to say that it is circumstantial. However, to be sufficient to ground a conviction in a criminal trial, circumstantial evidence must be complete and unequivocal.

It must be compelling and must lead to the irresistible conclusion that the defendant and no one else did the deed and as such, it is only the defendant and no one else, who should be criminally culpable for the offence alleged or charged. The facts must be incompatible with the innocence or non-culpability of the defendant and incapable of explanation by any other reasonable hypothesis or consideration than that of his guilt – State Vs Njoku (2010) 1 NWLR (Pt.1175) 243 and Oladotun Vs State (2010) 15 NWLR (Pt.1217) 490.

It is trite law that before a defendant can be convicted for culpable homicide or murder on circumstantial evidence, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than murder can the facts be accounted for. A conviction for culpable homicide or murder on circumstantial evidence must point to the guilt of a defendant with the accuracy of mathematics.

A Court cannot convict on circumstantial evidence, especially in a case of murder or culpable homicide where such evidence points in more than one direction Osuoha Vs State (2010) 16 NWLR (Pt.1219) 364 and Maigari Vs State (2010) 16 NWLR (Pt.1220) 439. In other words, for circumstantial evidence to sustain conviction, the following conditions must be met: (i) the evidence must irresistibly and unequivocally lead to the guilt of the defendant; (ii) no other reasonable inference could be drawn from it; and (iii) there must be no co-existing circumstances which could weaken the inference.

All the three conditions must exist in the adduced evidence to ground and sustain the conviction of a defendant- Shehu Vs State (2010) 8 NWLR (Pt.1195) 112.” Per ABIRU, JCA (Pp. 27-29, paras. C-B) See also the case of Nwalo v. State (2021) LPELR–56302 (CA) PP. 19–20, paras E–B.

The question now arises, whether the grounds constituting the circumstantial evidence upon which the appellant was convicted satisfies the following conditions:- (I) the irresistible and unequivocal conclusion of the guilt of the appellant. (II) that no other reasonable inference could be drawn from it. (III) that there is no co-existing circumstances which could weaken the inference. ​My lordships are invited to follow me in considering the evidence against the appellant for the purpose of answering the question, just before now posed as to the satisfaction of the three conditions which in law must all together be satisfied before a conviction can be convincingly secured beyond reasonable doubt against the appellant based on circumstantial evidence.

The evidence are: (1) In the course of searching for the deceased in the bush around his residence, the appellant who was with them in the search suggested a direction in which the search should be directed. It has become a reason for his conviction. This piece of evidence sounds too remote to me. It is natural that a search party would normally suggest different directions which they should take in the search. Any other person other than the appellant could have suggested the direction the appellant suggested. Could that have meant that such a person participated in the murder of the deceased?

Or it is being suggested that because the 1st accused who admitted that he murdered the deceased all by himself is a sibling of the appellant, different consideration should apply? This to me is a suspicion carried too far. It is settled in law that suspicion no matter how strong cannot take the place of legal proof. See Alake v. The State (1992) LPELR–403 (SC) P. 15 paras D–E, Ogba v. State (1992) LPELR–2273 (SC), PP. 23–24, paras G–A, Etumonu v. A.G. Delta State (1994) LPELR–14361 (CA), P. 13, paras A–E, Ahmed v. State (2001) LPELR–262 (SC) P.18, paras A–G.

(2) In his extra-judicial statement, (Exhibits 9 and 10) and in his evidence in Court as DW3, he stated that when he noticed his sibling (1st accused) with a wound in his palm and asked him how he came about it, his brother explained that he got it in an altercation with a friend of his to whom he went to recover his debt. Here, the prosecution suggested and the trial Court accepted that the appellant must know something about how the 1st accused received the cut in his hand. This to me also sounds a ludicrous suspicion.

I am not in the least convinced that it affords any circumstantial evidence at all, let alone to form the basis for the conviction of the appellant in a charge of murder.

(3) The trial Court used Exhibit 8 in arriving at its finding that the appellant knew how the 1st accused got the wound in his hand. See page 295 of the record of appeal. Exhibit 8 is the extrajudicial statement of the 4th accused person (Reuben Okasi). In his statement, he denied any involvement in the murder of the deceased. (See page 113 of the record of appeal). There is nothing in his statement that incriminates the appellant.

But even if it does, being a statement made by one co-accused person against another, it cannot bind the appellant except it was made in his presence and he adopts it. I am therefore unable to see what the learned trial Judge “looked” in Exhibit 8 that got him convinced that he knew how the 1st accused person got his wound.

(4) The inconsistency between the two statements of the appellant (Exhibits 9 and 10) as to his whereabout on the date of the incident. ​In his statement made on 8/11/10 (Exhibit 9) he stated that on 4/11/10 he went to Nwaorieubi in search of job, and was indeed not at home when Chief Augustine (the deceased) came back home. However, in his statement made on 17/12/10, he stated that on 4/11/10 he was at home throughout, and in the night he heard that they were looking for their Cousin Chief Augustine.

In his submission, learned counsel for the appellant contended that the appellant raised alibi at the earliest opportunity when he was arrested but that the said alibi was not investigated. On the other hand, the prosecution referred to the inconsistency in the two statements and waved away the non–investigation of the alibi by the police. I cannot fault the prosecution. Alibi simply means elsewhere. When that defence is raised, the accused person claims that he was in a place other than the scene of crime. See the case of Ochemaje v. The State (2008) LPELR–2198 (SC), Nwabueze & Ors. v.

State (1988) LPELR–2080 (SC), P.15 paras B–D, Eyisi & Ors. v. State (2000) LPELR–1186 (SC), P. 61 paras C–D.

If the appellant had stuck to his statement made on 8/11/10, the submission that his alibi was not investigated and the legal consequences to the prosecution’s case would have substance. However, the appellant lost that right when in his statement of 17/12/10, he stated that he did not go to Nwaorieubi in search of work but was at home. It is settled law that for alibi to be worthy of investigation the defence of alibi must be precise and specific in terms of the place that the accused was, and the persons he was with and possibly what he was doing at the material time.

It is not the law that the police should be involved in a wild goose chase for the whereabouts of the accused person at the time the crime was committed. See the case of The State v. Inya Adu (2021) LPELR – 56616 (SC), PP. 76 – 80, paras F – D. It is my conclusion that the defence of alibi does not avail the appellant. But so what now? When a Court reaches the conclusion that the defence of alibi fails, the Court is left with the evidence which fixes the accused person at the scene of crime. In this case, there is no direct eye witness that fixed the appellant to the scene of crime.

The only available evidence is circumstantial evidence which I have earlier considered and arrived at the conclusion that it did not irresistibly, positively and unequivocally point to the guilt of the appellant in the murder of the deceased. This again leaves the Court with another incidence of suspicion, which as earlier shown in a plethora of judicial authorities cannot take the place of legal proof. ​I must say this; the dastardly murder of the deceased is most despicable and condemnable.

However, it does not justify sending another innocent soul to the gallows on mere suspicion no matter how strong. Therefore, I find merit in this appeal and allow it. In the result, the judgment of the trial Court delivered in Suit No. HOW/51C/2011 on 18th February 2013, is hereby set aside as against the appellant in this appeal. The conviction and sentence imposed on the appellant are hereby set aside. Consequently, he is hereby discharged and acquitted and is ordered to be released from the Correctional facility forthwith.

IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading before now, the draft judgment just delivered by my Learned brother James G Abundaga, JCA. I entirely agree with the reasoning and conclusion in the lead judgment that this appeal is meritorious and same is allowed by me. The appellant is discharged and acquitted as ordered.

ADEMOLA SAMUEL BOLA, J.C.A.: I am privileged to have read in draft the judgment just delivered by my learned Brother, JAMES GAMBO ABUNDAGA, JCA. I am in agreement with the reasoning and conclusion of the learned jurist as encapsulated in the judgment.

I have no reason to depart from them. ​Against the backdrop, I adopt the conclusions and the consequential orders made.

Judgment

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment) : The appellant and 6 (six) others were charged before the High Court of Imo State in Owerri Judicial Division with the offence of murder of one Chief (Sir) Augustine Ndukwu on 4th November 2010, Contrary to Section 319 (1) of the Criminal Code, Cap 30 Vol. 11, Laws of Eastern Nigeria, applicable in Imo State. The plea of the accused persons including the appellant was taken on 31st October, 2010. The 1st accused person Uchenna Ndukwu pleaded guilty while the others, including the appellant pleaded not guilty.

Even though the 1st accused person pleaded guilty to the charge, the trial Judge in consonance with the principle of law in Criminal trial involving Capital offences entered a plea of not guilty for him. In the bid to prove the offence as contained in the charge, the prosecution (Respondent herein) called six witnesses and tendered the extra-judicial statements of the accused persons which were admitted in evidence as Exhibits. The accused persons including the appellant entered their defence.

Thereafter counsel on both sides addressed the Court, following which the trial Court adjourned for judgment. In the judgment delivered on 13th February, 2013, John Emesiobi and Vincent Emesiobi (2nd and 7th accused persons respectively) were discharged and acquitted, while the rest, 1st, 3rd, 4th, 5th and 6th accused persons were convicted and sentenced to death by hanging. The appellant (3rd Accused) is aggrieved with his conviction, and therefore filed an appeal to this Court. The Notice of appeal was filed on 11//3/13. The Notice of appeal contains two (2) grounds of appeal.

On due compilation and transmission of the record of appeal, the appellant proceeded to file his brief of argument. The brief of argument settled by his counsel, Madubuko Izuchukwu, Esq. was filed on 18/11/20 and deemed properly filed and served on 9/2/21. In reaction to the Appellant’s brief of argument, the Respondent filed her brief of argument settled by C.O. Chukwumaeze, Esq., Principal State Counsel, Imo State Ministry of Justice on 12/11/21. It was deemed properly filed on 9/2/2021.

The appellant filed a reply brief on 24/1/22, and deemed properly filed on 9/2/21. ​The briefs of argument were adopted on 24/01/22.

In the appellant’s brief of argument, the three issues were identified for determination: (I) Whether the prosecution investigated the defence of alibi raised by the appellant on this charge and the effect of failure to do that in the circumstances of this case. (II) Whether the prosecution proved this charge against the appellant beyond reasonable doubt to warrant his conviction of it. (III) Whether the trial Court properly evaluated the evidence before him concerning the Appellant.

The respondent in her brief of argument formulated two issues for determination to wit: – (I) Whether by the evidence and exhibits before the Court, the trial Court was not right in convicting the appellant as a party to the offence, his plea/defence of alibi having failed. (II) Whether in view of the well considered facts and proper evaluation of the evidence(s) before the lower Court, the judgment of 18/2/2013 is not a fair judgment and ought to be sustained. ​Argument on the issues It is contended by the appellant that where a person is accused of committing a criminal offence, the onus is on the prosecution to prove the charge against him beyond reasonable doubt.

It is submitted that the essential ingredients of the offence of murder are:- (a) That the deceased died. (b) That the death of the deceased was caused by the accused. (c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. The case of Michael v. State (2008) All FWLR (Pt. 431) 875 was referred to. Counsel drew the attention of the Court to the holding of the Court which was the basis of his conviction.

The Court said: “He (appellant) knew how the 1st accused got his wound in his hand. He saw 1st accused that evening and knew how he got his wound. I am convinced that he was a party to the killing of the deceased”. ​Counsel submits that there is no material evidence before the Court which satisfies the requirement of proof beyond reasonable doubt. It is further submitted that DW4 (1st accused) confessed that he killed the deceased. That in addition, the appellant set up alibi which was not investigated by the police.

This is in addition to the fact that the evidence against the appellant is weak. It is contended by the appellant that he set up the defence of alibi, and stated where he was, which is, elsewhere other than where he was alleged to have committed the offence. That he thus discharged the evidential evidence on him, by providing details of where he was but the police did not bother to investigate it. The prosecution, counsel submits did not lead any strong evidence connecting the appellant with the commission of the offence. That they did not debunk the alibi that he raised.

On the effect of a failure to cross-examine a witness on a material fact, it is submitted that the implication is that the adversary accepts the matter as led in evidence. Reliance is placed on the case of Oforlete v. The State (2009) 8 ACR, Vol. 8 page 398. It is further submitted that the standard of proof required to establish alibi is one based on balance of probabilities. Further on alibi, the cases cited, include Obalum Anakwe v.

The State (1976) 10 SC 225 p. 264. ​Submits that before a Court may draw inferences of guilt, it must be sure that there are no other co-existing circumstances that would weaken such inference. Counsel refers to the aspect of the trial Court’s judgment where the learned trial Judge allegedly found that the appellant was neck deep in the whole episode of the murder of the deceased, and submitted that none of the prosecution witnesses mentioned anything like that in their various statements to the police in the course of investigation or in Court.

Submits that the appellant should be entitled to the benefit of doubt where doubt is created by the inability of the police to investigate the alibi raised at the earliest time. Reliance is on the case of The State v. Aibanbee & Anor (1988) 7 SCNJ 128. The Court is therefore urged to discharge and acquit the appellant having allowed the appeal. Respondent’s counsel submits that the ratio decidendi of the judgment is not the trial Judge’s statement that the appellant was neck deep in the whole episode.

The ratio decidendi, counsel submits is that the appellant was a party to the killing of the deceased. Referring to the alibi set up by the appellant counsel submits that the alibi at one breath removed him from home on the date of the incident and in another placed him at home throughout the day of the incident. That inherent in the alibi is contradiction, which counsel submits is material. That in this instance, the Court cannot pick and choose which evidence to believe and which to disbelieve.

On the issues submitted by the appellant for determination, it is submitted for the respondent that why one of the three issues was argued while the other was abandoned. Revisiting the defence of alibi raised by the appellant, it is submitted by respondent’s counsel that the appellant raised it and went to sleep without establishing it. In further argument to support appellant’s conviction, it is submitted for the respondent that the appellant took part in the offence, and cites in support Section 7 (a), (b), & (c) of the Criminal Code. Also cited is George v.

FRN (2011) 10 NWLR (Pt. 1254) 1. ​Counsel pointed out that DW2, John Emesiobi convened a meeting at his house where the 1st accused (appellant’s brother) and other accused persons were present and conspired to kill the deceased. That the mere fact that the appellant was not present physically at that meeting is not conclusive that he is innocent or not part of the conspirators to the offence. Explaining further the concept of conspiracy, the Court is referred to the case of Oyediran v. Republic (1967) NMLR 122. Submits that the elements that define conspiracy are found in the instant appeal.

Specifically, counsel refers the Court to pages 77–95 to the evidence of PW1 as to what the appellant did on the day the body of the deceased was retrieved during the search. That the appellant drew the attention of the search team to the direction that the deceased body was found in the bush. That the evidence of PW1 as to what the appellant did during the search was corroborated by the evidence of PW2 (Edwin Nwabueze Ndukwu) who it was that reported and invited the police. That the appellant was heard to say – “Bianu ebe oo”, and when he was asked what happened, he was mopping at them.

That the defence did not cross-examine the witness on that piece of evidence, therefore, counsel submits that Court is entitled to accept and act on it, the case of Patrick Oforlete v. The State (2000) All FWLR (Pt. 12) 2081 was cited in support of this submission.

It is contended that the 1st, 3rd and 5th accused persons are siblings. Therefore, counsel submits it stands to reason and commonsensical that the 1st accused intentionally pleaded guilty to the offence and claimed that he did it alone to save his other siblings. The law, further submitted by counsel is trite that sentiments no matter how well crafted commands no place in law. Submits that the judgment is without fault and is a product of proper evaluation of the evidence before the Court which the trial Judge rightly ascribed probative value to.

It is therefore contended that the judgment is not perverse. On the proper Court that can evaluate evidence being the trial Court, not a few cases are cited, and they include Famoroti v. FRN (2016) All FWLR (Pt. 856) 366 at 397 paras F–A, Ratio 7; Shamaki v. Baba (2000) All FWLR (Pt. 26) 1878 at 7888, paras D–E, ratio 6, Okala v.

Udah (2019) All FWLR (Pt. 1021) 203 at 231 to 232 paras B–A, P. 206; to mention but some. ​Therefore, counsel submits, the evaluation of evidence on record having been properly and rightly done, and probative values ascribed thereto, the appellate Court is deprived of the vires to interfere with it. All the submissions of the appellant’s counsel should be discountenanced, it is further contended for the Respondent. The Court is therefore urged to dismiss the appeal as same is lacking in merit.

RESOLUTION: All the issues formulated and argued by the appellant and the respondent coalesce to one broad issue, which is, whether the charge of murder was proved beyond reasonable doubt against the appellant to warrant his conviction. A convenient and instructive starting point is the burden and standard of proof. The law is settled that the standard of proof is beyond reasonable doubt while the burden is on the prosecution. See the following cases: – Agugua v. The State (2017) LPELR–42021 (SC), P. 38, paras B–F, Tobi v. The State (2019) LPLR–46537 (SC) P.24, paras C–D, Edun & Anor v.

FRN (2019) LPELR–46947 (SC) P. 12. ​It has also been established in law that the guilt of an accused person can be proved in three ways, to wit: (I) By eye witness account of the Commission of the offence, (II) By confessional statement of the accused person, (III) By circumstantial evidence. The following judicial authorities are instructive: James Afolabi v. The State (2016) LPELR–40300 (SC), PP. 51–52 paras F–B, Demo Oseni v. The State (2012) LPELR–7833 (SC), P. 41, paras B–C, Darlington Eze v. FRN (2017) LPELR–42097 (SC), P. 63, paras C – E.

A careful review of the evidence adduced in this case reveal quite clearly that there is no eye witness account of anyone who saw the appellant either by himself alone, or acting in concert to murder the deceased, Chief (Sir) Augustine Ndukwu. It is also correct to state that the appellant did not confess to the murder of the deceased. Apart from there being no evidence on record to the appellant either murdering the deceased or confessing to his murder, the judgment of the trial Court, particularly the finding attest to the position which I humbly hold.

The learned trial Judge at pages 294–295 made the following findings concerning the 3rd accused person, who testified for himself as Dw3: “Then over to the case of DW3 – Ekene Ndukwu. His counsel stressed the point that 1st accused had already claimed personal responsibility for the murder of the deceased. This issue I must straightaway discountenance as no reasonable tribunal will believe that 1st accused did the murder single handedly.

This being so, counsel submitted further that the prosecution linked him with the murder because according to them his conduct that night of the search was indicative that he had some knowledge of the murder. He tried to say that during the search according to PW1, 3rd accused said – “Wetanu oku ebeaoo” meaning – bring light to this place. PW2 in his evidence said “Biano ebeo” meaning come this way. He submitted that these two statements are contradictory and not explained. He cited the case of EBONG VS. STATE (2012) ALL FWLR Pt. 633 1945 at 1978 to buttress this contention.

He further stated that the statements are based on suspicion and as held in the case of TORRI VS. NATIONAL PARK SERVICE (2011) VOL. 7 Pt. 300 pg. 2239, suspicion, no matter how strong, cannot ground conviction on the side of the prosecution. PWS 1 and 2 during the search overheard DW3 utter the words. This was to direct the team even though when the team got to where he was, nothing could be seen. It was only when the team entered the bush that they discovered the bodies of the deceased and his gardner. This piece of evidence the defence did not destroy.

It was this DW3 who move or else drew attention of the search party to the place of discovery. The defence did not destroy this evidence which was corroborated by both PWS. 1, 2 and 3. The words “wetanu oku ebeo” and “Bianu ebeoo” all are taken to mean simply drawing attention to a particular place. We are not here doing a case of slander where all those who heard the word must hear the same thing said in the way it was said. There was a confusion team practically searching for the body of the deceased and in the night. Anyone knowing the spot is not precluded from showing the way.

Moreover, it must be remembered that this was in the night hence the use of light. When he was confronted as the team saw nothing where he was standing he simply kept mute and only continued to mope. This is more than suspicion. The defence had all the chance in the world to debunk this piece of evidence but either did not know, did not want or better still neglected to do so. In the Supreme Court case of PATRICK OFORLETE VS.

THE STATE (2000) FWLR Pt. 12 Pg. 12 2081, it was therein held that there – “The Court is entitled and indeed bound to accept evidence unchallenged under cross-examination, provided such evidence by its nature is not improbable”. 3rd accused was neck deep in the whole episode. Looking at Exh. 8, one can also see that he knew how 1st accused got his wound in his hand. He saw 1st accused that evening and knew how he got the wound. I am convinced that he was party to the killing of the deceased and so find him guilty as charged”.

It is therefore apparent from the foregoing that the conviction of the appellant is based on circumstantial evidence. Let me digress at this juncture to state what the prosecution must prove in order to sustain a conviction for the offence of murder. ​To sustain a conviction for charge of murder, the following ingredients must be proved: (1) That the deceased had died (2) That the death of the deceased had resulted from the act of the accused person; (3) That the act of the accused which caused the death or grievous bodily harm was its probable consequences. See the following cases: Mayaki v.

The State (2008) U SCM 49 at 59–60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras G–I. It is instructive to note that the 1st accused who was jointly tried with the appellant made a confessional statement that he alone murdered the deceased. He repeated this in his defence. The prosecution did not believe him. The Court too did not believe him. Whether the Court believes him or not is not material because even if he had in his extra-judicial statement and his evidence in Court incriminated the appellant, the appellant except he adopts such confession or statement will not be bound.

See the following cases – Tiremisuyu Adebayo v. The State (2014) 8 SCM 34 at 65 para 6, The State v. James Gwangwan (2015) 9 SCM 253 at 271, paras D–G. See Section 29(4) of the Evidence Act, 2011.

All these go to show that the prosecution could only succeed in proving the guilt of the appellant based on the evidence adduced by it which proves the appellant’s guilt beyond reasonable doubt. ​This leads me to the consideration of the kind of circumstantial evidence on which an accused person can be convicted for a criminal offence, and in the instant case of murder, the ingredients of which I had earlier set out. The criminal jurisprudence is replete with several definitions of circumstantial evidence, all of them leading to one common or general effect. In the case of Musa Mamman v.

The State (2015) LPELR–255963 (CA), circumstantial evidence was thus defined: “Now, circumstantial evidence is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and/or precision of mathematics. It is not a derogation of evidence to say that it is circumstantial. However, to be sufficient to ground a conviction in a criminal trial, circumstantial evidence must be complete and unequivocal.

It must be compelling and must lead to the irresistible conclusion that the defendant and no one else did the deed and as such, it is only the defendant and no one else, who should be criminally culpable for the offence alleged or charged. The facts must be incompatible with the innocence or non-culpability of the defendant and incapable of explanation by any other reasonable hypothesis or consideration than that of his guilt – State Vs Njoku (2010) 1 NWLR (Pt.1175) 243 and Oladotun Vs State (2010) 15 NWLR (Pt.1217) 490.

It is trite law that before a defendant can be convicted for culpable homicide or murder on circumstantial evidence, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than murder can the facts be accounted for. A conviction for culpable homicide or murder on circumstantial evidence must point to the guilt of a defendant with the accuracy of mathematics.

A Court cannot convict on circumstantial evidence, especially in a case of murder or culpable homicide where such evidence points in more than one direction Osuoha Vs State (2010) 16 NWLR (Pt.1219) 364 and Maigari Vs State (2010) 16 NWLR (Pt.1220) 439. In other words, for circumstantial evidence to sustain conviction, the following conditions must be met: (i) the evidence must irresistibly and unequivocally lead to the guilt of the defendant; (ii) no other reasonable inference could be drawn from it; and (iii) there must be no co-existing circumstances which could weaken the inference.

All the three conditions must exist in the adduced evidence to ground and sustain the conviction of a defendant- Shehu Vs State (2010) 8 NWLR (Pt.1195) 112.” Per ABIRU, JCA (Pp. 27-29, paras. C-B) See also the case of Nwalo v. State (2021) LPELR–56302 (CA) PP. 19–20, paras E–B.

The question now arises, whether the grounds constituting the circumstantial evidence upon which the appellant was convicted satisfies the following conditions:- (I) the irresistible and unequivocal conclusion of the guilt of the appellant. (II) that no other reasonable inference could be drawn from it. (III) that there is no co-existing circumstances which could weaken the inference. ​My lordships are invited to follow me in considering the evidence against the appellant for the purpose of answering the question, just before now posed as to the satisfaction of the three conditions which in law must all together be satisfied before a conviction can be convincingly secured beyond reasonable doubt against the appellant based on circumstantial evidence.

The evidence are: (1) In the course of searching for the deceased in the bush around his residence, the appellant who was with them in the search suggested a direction in which the search should be directed. It has become a reason for his conviction. This piece of evidence sounds too remote to me. It is natural that a search party would normally suggest different directions which they should take in the search. Any other person other than the appellant could have suggested the direction the appellant suggested. Could that have meant that such a person participated in the murder of the deceased?

Or it is being suggested that because the 1st accused who admitted that he murdered the deceased all by himself is a sibling of the appellant, different consideration should apply? This to me is a suspicion carried too far. It is settled in law that suspicion no matter how strong cannot take the place of legal proof. See Alake v. The State (1992) LPELR–403 (SC) P. 15 paras D–E, Ogba v. State (1992) LPELR–2273 (SC), PP. 23–24, paras G–A, Etumonu v. A.G. Delta State (1994) LPELR–14361 (CA), P. 13, paras A–E, Ahmed v. State (2001) LPELR–262 (SC) P.18, paras A–G.

(2) In his extra-judicial statement, (Exhibits 9 and 10) and in his evidence in Court as DW3, he stated that when he noticed his sibling (1st accused) with a wound in his palm and asked him how he came about it, his brother explained that he got it in an altercation with a friend of his to whom he went to recover his debt. Here, the prosecution suggested and the trial Court accepted that the appellant must know something about how the 1st accused received the cut in his hand. This to me also sounds a ludicrous suspicion.

I am not in the least convinced that it affords any circumstantial evidence at all, let alone to form the basis for the conviction of the appellant in a charge of murder.

(3) The trial Court used Exhibit 8 in arriving at its finding that the appellant knew how the 1st accused got the wound in his hand. See page 295 of the record of appeal. Exhibit 8 is the extrajudicial statement of the 4th accused person (Reuben Okasi). In his statement, he denied any involvement in the murder of the deceased. (See page 113 of the record of appeal). There is nothing in his statement that incriminates the appellant.

But even if it does, being a statement made by one co-accused person against another, it cannot bind the appellant except it was made in his presence and he adopts it. I am therefore unable to see what the learned trial Judge “looked” in Exhibit 8 that got him convinced that he knew how the 1st accused person got his wound.

(4) The inconsistency between the two statements of the appellant (Exhibits 9 and 10) as to his whereabout on the date of the incident. ​In his statement made on 8/11/10 (Exhibit 9) he stated that on 4/11/10 he went to Nwaorieubi in search of job, and was indeed not at home when Chief Augustine (the deceased) came back home. However, in his statement made on 17/12/10, he stated that on 4/11/10 he was at home throughout, and in the night he heard that they were looking for their Cousin Chief Augustine.

In his submission, learned counsel for the appellant contended that the appellant raised alibi at the earliest opportunity when he was arrested but that the said alibi was not investigated. On the other hand, the prosecution referred to the inconsistency in the two statements and waved away the non–investigation of the alibi by the police. I cannot fault the prosecution. Alibi simply means elsewhere. When that defence is raised, the accused person claims that he was in a place other than the scene of crime. See the case of Ochemaje v. The State (2008) LPELR–2198 (SC), Nwabueze & Ors. v.

State (1988) LPELR–2080 (SC), P.15 paras B–D, Eyisi & Ors. v. State (2000) LPELR–1186 (SC), P. 61 paras C–D.

If the appellant had stuck to his statement made on 8/11/10, the submission that his alibi was not investigated and the legal consequences to the prosecution’s case would have substance. However, the appellant lost that right when in his statement of 17/12/10, he stated that he did not go to Nwaorieubi in search of work but was at home. It is settled law that for alibi to be worthy of investigation the defence of alibi must be precise and specific in terms of the place that the accused was, and the persons he was with and possibly what he was doing at the material time.

It is not the law that the police should be involved in a wild goose chase for the whereabouts of the accused person at the time the crime was committed. See the case of The State v. Inya Adu (2021) LPELR – 56616 (SC), PP. 76 – 80, paras F – D. It is my conclusion that the defence of alibi does not avail the appellant. But so what now? When a Court reaches the conclusion that the defence of alibi fails, the Court is left with the evidence which fixes the accused person at the scene of crime. In this case, there is no direct eye witness that fixed the appellant to the scene of crime.

The only available evidence is circumstantial evidence which I have earlier considered and arrived at the conclusion that it did not irresistibly, positively and unequivocally point to the guilt of the appellant in the murder of the deceased. This again leaves the Court with another incidence of suspicion, which as earlier shown in a plethora of judicial authorities cannot take the place of legal proof. ​I must say this; the dastardly murder of the deceased is most despicable and condemnable.

However, it does not justify sending another innocent soul to the gallows on mere suspicion no matter how strong. Therefore, I find merit in this appeal and allow it. In the result, the judgment of the trial Court delivered in Suit No. HOW/51C/2011 on 18th February 2013, is hereby set aside as against the appellant in this appeal. The conviction and sentence imposed on the appellant are hereby set aside. Consequently, he is hereby discharged and acquitted and is ordered to be released from the Correctional facility forthwith.

IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading before now, the draft judgment just delivered by my Learned brother James G Abundaga, JCA. I entirely agree with the reasoning and conclusion in the lead judgment that this appeal is meritorious and same is allowed by me. The appellant is discharged and acquitted as ordered.

ADEMOLA SAMUEL BOLA, J.C.A.: I am privileged to have read in draft the judgment just delivered by my learned Brother, JAMES GAMBO ABUNDAGA, JCA. I am in agreement with the reasoning and conclusion of the learned jurist as encapsulated in the judgment.

I have no reason to depart from them. ​Against the backdrop, I adopt the conclusions and the consequential orders made.

Judgment

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The instant appeal is consequent upon the judgment of the Court of Appeal, Ibadan Judicial Division delivered on October 28th, 2016, in appeal No. CA/IB/227/2015. By the judgment in question, the Court below affirmed the judgment of the High Court of Ogun State, holden at Abeokuta, delivered on December 18th, 2014, in charge No.

AB/2R/2013, thereby convicting and sentencing the Appellant and one other person to death by hanging for the offences of conspiracy to commit robbery and armed robbery, punishable under Sections 6(b) and 1(2) (a) of the Robbery and Fire Arms (Special Provisions) Act CAP R11, Laws of the Federation of Nigeria, 2004.

BACKGROUND FACTS On July 17th, 2013, the Appellant and one other person were arraigned before the trial High Court upon a four count information – viz: COUNT I STATEMENT OF OFFENCE CONSPIRACY TO COMMIT ARMED ROBBERY Contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special provisions) Act (Cap R11) Laws of Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE ​LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large, on or about the 16th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division conspired to commit a felony to wit: Armed Robbery. COUNT II STATEMENT OF OFFENCE ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special provision) Act, (Cap R11) Laws of Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large on or about the 16th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division while armed with guns, knife and cutlass robbed Rukayat Ajayi of Three Hundred and Fifty Thousand Naira (N350,000.00) and her mobile phones. COUNT III STATEMENT OF OFFENCE ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special provision) Act, (Cap R11) Laws of Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large on or about the 10th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division while armed with guns, knife and cutlass robbed one Zainab Ahmed of her Nokia mobile phone. COUNT IV STATEMENT OF OFFENCE ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special provision) Act, (Cap R11) Laws of Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large on or about the 10th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division while armed with guns, knife and cutlass robbed one Taiwo Adekoya of his three mobile phones.

The Appellant pleaded not guilty to the 4 count charge read and explained there to in Yoruba Language. The charge proceeded to trial, at the close of which, the trial Court delivered the vexed judgment to the following conclusive effect: It is evidently clear that the 1st and 2nd accused persons conspired with one Morufu who is at large to rob PW1, PW2 and others of their belongings on the 16/09/2010. I hold that they are guilty of the offence of conspiracy in count I. In the final analysis, I find the prosecution has proved all four counts against the accused persons.

I hereby find the accused persons guilty as charged. They are hereby convicted on all four counts of the information.

Accordingly, the trial Court proceeded, in the absence of an allocutus, to pass sentences upon the Appellant and co-convict:

SENTENCING By law, the punishment for the offences of conspiracy to commit armed robbery, and armed robbery in counts I-IV of this information and for which the accused persons have been charged, tried and found guilty is a mandatory one over which I have no discretion to exercise. Accordingly, on count I, the 1st and 2nd accused persons are hereby sentenced to death by hanging by the neck till they are dead. On counts II-IV, the 1st and 2nd accused persons are hereby sentenced to death by hanging by the neck till they are dead.

Not unnaturally, the Appellant has been utterly dissatisfied with conviction and sentences passed thereupon by the trial Court, thus appealed to the Court below. On October 28th, 2016 the Court below delivered the vexed judgment to the conclusive effect: Although, learned counsel for the Appellant did not specifically challenge the finding of the trial Judge on the count of conspiracy, there is no doubt from the confessional statement that the three culprits formed a common intention or agreement to effect an unlawful purpose, to wit armed robbery.

They did not act individually but in pursuance of a common purpose to commit armed robbery. The actual commission of the offence provided evidence of their common intention… Having resolved the sole issue against the appellant, I hold that this appeal lacks merit. It is hereby dismissed. I affirm the judgment of the lower Court.

With a view to exhausting the right of a further appeal accorded thereto under the Constitution of the Federal Republic of Nigeria, 1999, as amended, the Appellant has deemed it expedient to institute the present appeal. On January 28th, when the appeal came up for hearing, the learned counsel had the opportunity to address the Court and thereby adopted the argument contained in the respective briefs thereof. Thus, resulting in reserving judgment.

The Appellant’s brief, settled by Mutalubi Ojo Adebayo Esq. on 06/02/2018, spans a total of 16 pages. At page 3 thereof, a sole issue has been formulated: Whether by the nature of evidence on the record, the Justices of the Court of Appeal rightly affirmed the conviction and sentence of the Appellant by the trial Court in holding that the prosecution has proved its case against the Appellant beyond reasonable doubt. (This issue covers the two grounds of appeal).

The argument of the Appellant’s learned counsel in a nutshell, is to the effect that the offence was allegedly committed in the night around 7pm. And that Appellant was not arrested at the scene of crime. The record does not bear the source of the purported information, based on which the Appellant was arrested.

It was submitted, that the Appellant had denied Exhibits P10 and 12 – the confessional statement. The evidence of PW1 under cross-examination was copiously referred to, to the effect that the PW1 saw the Appellant (2nd Accused person) for the first time in her life-time at the police station at Ibara. Thereby, rendering the said Exhibits P10 and P12 the confessional statement impossible and doubtful. See, NWABUEZE VS STATE (1988) 7 SCNJ 248, 257, 258; ANI VS. STATE (2009) ALL FWLR (pt. 482) 1044, 1062. KASA VS. STATE (1994) 5 NWLR (pt. 344) 269 @ 286 paragraphs C-H.

​Further agued by the learned counsel, that once the victim of robbery says he saw the person that robbed him and can identify that person, identification parade becomes necessary, and must be conducted. See BOZIN VS. STATE (1985) NNCL VOLUME 16 (part II) 1087 at 1092 lines 40 – 45.

It was posited, that the prosecution’s case is fraught with doubt, as a result of material contradictions or lack of sufficient evidence. See IBEH VS. THE STATE (1997) 1 NWLR (pt. 484) 632 at 650; ONUOHA VS. THE STATE (1988) 8 – 11 236, et al.

The case of EDIBO VS. STATE (2007) A FWLR (pt. 384) 192 at 207 paragraphs C-D was also cited and relied upon, to the effect that the Appellant can be given the benefit of any defence available to him.

Thus, it’s vehemently posited, that for the charge of conspiracy to commit armed robbery to be sustained, certain elements must be established by the prosecution beyond reasonable doubt. See, AFOLALU VS. THE STATE (2010) 16 NWLR (pt. 1220) 584; (2010) LPELR-197 SC 26 paragraphs A – F; SANI VS. THE STATE (2015) 6-7 (pt. 11), @ 17-78, et al.

​Conclusively, the Court is urged upon to resolve the sole issue against the Respondent, upturn the verdict of acquittal and discharge in favour of the Appellant.

Contrariwise, the Respondent’s brief, settled by Adekolapo Ilorin, Esq. on 25/04/2018, spans a total of 19 pages. At page 4, the learned counsel has deemed it expedient to distil a sole issue from ground 2 of the Appellant’s notice of appeal: Whether from the entirety of the evidence on Record, as well as material available, the conviction of the Appellant for the offences, of conspiracy to commit Armed Robbery as well as Armed Robbery is justified in the circumstances of this case.

The pith of the Respondent’s submission, is that the combination of the evidence of PW1, PW2, PW3, PW4 and Exhibits P1-P11 gives credence to the fact that there indeed was an armed robbery on 16/11/2010 at No. 62, Sabo Road Abeokuta.

It was argued, that the said gun pointed at the PW1 was one of the locally made guns (Exhibits P6 and P7) recovered from the scene of arrest of the DW2, the accused. Further argued, that Exhibits P10 and P12 both give credence to the fact that the accused was one of those who took part in the crime.

​According to the learned counsel, a confessional statement, without more, is enough to sustain a conviction. See ACHABUA VS. THE STATE (1978) 12 S.C. (pt. 63) 68-69.

It was equally submitted, that no defence of alibi was raised at the trial. And long after the Appellant was arrested, he was unable to adduce any evidence to support the defence that he was somewhere else on 16/09/2010 at the time of the incident. See ESSIEN VS. THE STATE (2013) LPELR-20749.

It is posited, that the prosecution has proved beyond reasonable doubt that the Appellant was at the scene of the crime on 16/09/2010. That this has been successfully established by the direct evidence in Exhibits p10 and p12, adequately corroborated by the evidence of PW1, PW2, PW3 and PW4. See ONAH VS. STATE (1985) 3 NWLR (pt. 12) 236, 244 paragraphs C-D; AKINBISADE VS. THE STATE (2006) 17 NWLR (pt. 1007) 184, 212 paragraphs A-B, et al.

​On the whole, the Court is urged to hold, that from the foregoing, the evidence, both circumstantial and confessional, is not just cogent, but complete and unequivocal that no other conclusion ought to be inferred than that the Appellant was not only at the scene of the crime on the day of the incident, but that he also committed the offences for which he was convicted.

I have accorded a critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the instant appeal, the argument of the learned counsel contained in their respective briefs vis-a-vis the record of appeal as a whole. I would want to think and hold, that the sole issue distilled by the Appellant from the two grounds of the notice of appeal is very much germane to and apt for the determination of the appeal itself. Thus, I have deemed it most apt to adopt the sole issue with a view to determining the appeal, one way or the other.

DETERMINATION OF THE APPEAL As copiously alluded to above, the sole issue for resolution raised the very vexed question of whether or not by the nature of the evidence on record, the Court below rightly affirmed the conviction and sentence of the Appellant by the trial Court on the ground that the prosecution has proved its case against the Appellant beyond reasonable doubt.

​It is a trite fundamental doctrine, that for the prosecution to succeed in sustaining the charge of armed robbery against an accused person, under Section 1(2)  (a) of the Robbery and Firearms (Special provisions) Act Laws of the Federation of Nigeria, 2004 (supra), it has the burden of proving beyond reasonable doubt the following ingredients: (i) That there was an armed robbery or a series of armed robbery; (ii) That the robbery was an armed robbery (iii) That the accused person had participated in the commission of the armed robbery; See, AGBOOLA VS.

THE STATE (2013) NWLR (pt. 1366); (2013) LPELR-SC 434 2011 @ 26 paragraphs D-G; BOZIN VS. THE STATE (1985) 2 NWLR (pt. 8) 465 @ 467; ALABI VS. THE STATE (1993) 7 NWLR (pt. 307) 551, et al.

In the instant case, with a view to proving its case against the Appellant, the prosecution had called a total of four witnesses who testified as PW1, PW2, PW3 and PW4, respectively. The prosecution had equally tendered a total of 13 exhibits – Exhibits P1 – P13, respectively.

The PW1 was in the person of Rukayat Ajayi, a trader of No. 14 Osho Majiyagbe, Adigbe, Abeokuta. The evidence of the PW1 is contained at pages 53-54 (examination-in-chief) and 54-56 (cross-examination) of the Record of Appeal.

In a nutshell, the examination-in-chief of the PW1 is to the effect, inter alia, that on 16/09/2010 at about 7pm, she was at her shop and a consignment of rice and oil was being offloaded for her: “Then, I saw the 1st accused person was holding a gun and pointing it directly at me. The 3rd person was the one giving instruction. He instructed the people with me and my daughter to lie face down and he asked me to bring out my bag, that in case I hesitated, he would shoot my daughter.

I looked around and saw that the 1st accused has entered the 3rd shop to mine and was ordering the people there to keep their mouths shut. Out of the fear that they should not kill my daughter and with the memory that my mother also died from an armed robbery attack; I released my bag to that 3rd person… I was shouting and screaming and crying while they were being pursed (sic).”

Under cross-examination by the defence counsel, the PW1 stated inter alia: “At the police station, Ibara, I identified the 2nd accused (who was arrested) as one of the robbers that came to my shop. I saw the 2nd accused for the 1st time in my life at the police station. I had never seen him before then… I was not at the scene when the 2nd was apprehended, I met him at Ibara police station. The accused persons robbed me.”

The PW2, Zainab Ahmed gave evidence to the effect, inter alia: “I recollect that on 16th September, 2010, at about 7pm, myself and my mother were sitting at 2 different tables in front of our shop. The people that came to offload goods for us were sitting at the 3rd shop of ours. Suddenly, a man appeared and stood before my mother, asking her to co-operate with him because he is “Jegun jera” (someone who eats the meat along with the bone), failing which he would try his gun on me. He said all he needed was her bag and that he was not holding a toy gun.

I looked around and saw that another man with gun holding the people in the 3rd shop to ours hostage… There were three men that came to robbery operation.”

Under cross-examination, the PW2 maintained that she was told by the robber to face down: “It was only at the point of collecting my phone that they requested me to look up again. I went to Ibara police station the next day to only make statement.”

​The PW3, Ogunleye Idowu, was woman police sergeant No. 021457 attached to the Ogun state CID Anti-Robbery section, Abeokuta. According to the PW3: “The 23rd September, 2010, I was on duty at the above office when the 2 accused persons were transferred from Ibara Division along with a case file and exhibit (2) Locally made guns, one live cartridge, one expended cartridge, a cutlass, one knife and one motorcycle. I identify the exhibits now.”

The said items having been identified by the PW3, they were accordingly admitted by the trial Court as exhibits P2, P3, P4, P5, P6 and P7, respectively. An application and Bond paper for the release of the motorcycle to Oladeinde Akeem (the alleged owner thereof) were equally identified by the PW3 and accordingly admitted by the trial Court as exhibits 8 and 9.

It was equally stated by the PW3 that accused persons were allegedly thoroughly beaten and injured by a mob: “After they had been treated and I saw that they were in good condition to make statements. I rearrested, charged and cautioned of accused one after the other in English and they volunteered their statements also in English Language which I recorded … They signed as the maker which I signed as the recorded. The statements being in nature, took the 2 accused persons before my superior officer, ASP SP Fola Ogunkoya (now deceased).

In my presence, the statements were read over to the accused persons in English language by my superior and they confirmed them to be their statements. My superior endorsed the statements, the accused persons signed and I also signed as the IPO. I now identify the statements of the accused persons.”

Having been so identified by the PW3, the statement of the 1st accused (Appellant) was admitted by the trial Court as exhibit P11.

Under cross-examination by the defence counsel, the PW3 maintained that he could not remember how many days after the case file was transferred that they visited the scene of crime.

​The PW4, was Akeem Salami police Sgt No-205956. He testified to the effect that on the said 16/09/2010, he was on duty at Ibara Divisional police HQS at about 23:15hrs, when a case of conspiracy and armed robbery was reported and referred to him for investigation. It was in the course of that investigation that he rearrested the 1st and 2nd accused persons. He also found two locally made pistols, one live cartridge and one expended one on the 2nd accused person. He charged and cautioned both accused persons and recorded their respective statements.

However, the confessional statements being confessional had to be confirmed and duly endorsed by a senior police officer in the person of DSP Jacob Olayemi. The confessional statements of the 1st and 2nd accused persons were identified by the PW4 and accordingly admitted by the trial Court as Exhibits 12 and 13 respectively. The PW4 equally identified Exhibits P2-P7 respectively. Under cross-examination by the defence counsel, the PW4 maintained thus: “The 2nd accused person was arrested on the 16th September, 2010. He was brought to me and I rearrested him.

I set my eyes on the 2nd accused for the 1st time at Ibara police station. It was a group of person that brought the 2nd accused to the station that also brought 2 locally made pistols, one live cartridge and one expended cartridge to the statement. One cutlass and one knife were found on the 1st accused upon his arrest at laderin on the 21st September, 2010. All that I told the Court is all I did in respect of this case except that a police officer, I am on the lookout for the co-suspect who is at large.”

​Consequent, upon the testimony of the PW4, the prosecution deemed it expedient to close its case. Thus, the Appellant opened the defence thereof on 21/12/2014 as DW1. The Appellant (as 1st Accused person) testified in examination-in-chief that prior to his incarceration in the prison, he was living at Odemo village in Adigbe where he worked as a bricklayer.

On the 16/09/2010, in question he went to his working place somewhere behind the mechanic village at Kobape and returned home at 6.30pm and slept. According to the Appellant: “On the 17th and 18th, I also went to work and returned on 19th was Sunday and I did not go to work. On Monday 20th I was weak and did not go to work. It was on the 21st September, 2010, that I went to work again at the same site of Kobape I rode a commercial motorcycle I noticed a crows shouting. I then asked the motorcyclist not to leave yet in order for me to find out what was happening.

The motorcyclist waited while the noise confirmed. About five minutes later, a bus drove in and some mobile policemen alighted from it people started to run away. I stood there with some people. That was how those of us standing there (including the motorcyclist) were arrested and driven away to somewhere near trade fair complex. Their the mopol informed their boss of our arrests. The boss inquired if anything was found in our possession and they answered in the negative. The boss ordered that we be taken to the police station at Ibara.

Conclusively, the Appellant stated in his examination-in-chief thus: “When I was taken to the State SCID, I was already seated in car when another man was brought to join me in the car. He is the and accused person… It was Exhibits P12 that the police men thumb printed my thumb on involved in any act of armed robbery.”

Under cross-examination by the prosecution the Appellant stated: “It was where I went to work on the 21st September, 2010, that I was arrested… of his were arrested- myself, the motorcyclist, one other bricklayer and another person. The 2nd accused was not one of those arrested with us on that day.

​Against the backdrop of the circumstances surrounding the instant case vis-a-vis, the totality of the evidence adduced at the trial, there is every cogent reason for me to uphold the concurrent findings of the trial Court and the Court below, to the effect that there was a robbery incident on September 16th, 2010 at No. 62 Isabo Road, Abeokuta, Ogun State, thereby establishing the 1st ingredient of the offence of armed robbery beyond reasonable doubt under Section 1(2)(a) of the Armed Robbery And Fire Arms (Provisions) Act Laws of the Federation of Nigeria, 2004 (Supra).

It is not at all controversial, as amply established by the prosecution vide the PW1 and PW2, that on the said 16/09/2010, at about 7pm while the PW1 and PW2 were seated outside their shops and goods were being off-loaded thereinto, the Appellants and two other persons who were armed with guns invaded their shops and robbed them of their belongings. Most particularly, the PW1 was robbed of her hand bang containing the sum of #350,000.00 (Three Hundred and Fifty Thousand Naira).

With particular regard to the 2nd and 3rd ingredients of the offence, whether the robbery was armed robbery properly so called, the evidence of the PW1 is to the effect that: PW1: “On the 16th September, 2010, at about 7pm I was at my shop and a consignment of rice and oil was being offloaded for me. Then I sand the 1st accused person (Appellant) was holding a gun (sic) and pointing it directly at me. The 3rd person was the one giving instruction.

He instructed the people with me and my daughter (PW2) to lie face down and he asked me to being out my bag that in case I hesitated he would shoot my (PW2).

Looked around and saw that the 1st Accused (Appellant) has entered the 3rd shop to and was ordering the people there to keep their mouth shut. … the 3rd person requested for the phones of those lying down and he collected them after taking my bag.” The testimony of the PW2 is largely corroborative of the evidence of the PW1; the fact that the PW1 had stated under cross-examination that she had seen the 2nd accused person at Ibara Police Station for the first time in her life, notwithstanding!

​The PW1 was most particularly emphatic that the Appellant (1st Accused Person) had actively participated in the armed robbery incident in question. Thus, the PW1 was specific and unequivocal in regard to the role actively played by the Appellant and the two other persons in the commission of the armed robbery on that day and time in question.

As aptly found by the trial Court at page 112 (lines 1 – 18) of the Record: “PW1 said that 1st accused was on standby on a motorcycle, the 2nd accused was holding a gun and the 3rd accused held a gun, pointed it directly at her and requested for her bag … PW 1 was called on the phone that one of the robbers had been caught and she went over to the scene where he was apprehended. By the time she got there, they moved him to Ibara Police Station. Their she met the 2nd accused who was apprehended with a gun and she identified as one of the robbers that came to her shop that evening.

PW1 also identified the 1st accused person in this Court as the person who was on standby on a motorcycle at the time of the robbery.”

Undoubtedly, the foregoing finding by the trial Court which was duly upheld by the Court below, is cogent, unassailable and duly supported by the evidence on record. It is a trite fundamental doctrine, an eyewitness account of the commission of any act, be it an offence (crime) or otherwise, is the best specie of evidence amenable to the Courts. See IMO VS. THE STATE (2001) 1 NWLR (Pt. 694) 314.

​It was the argument of the Appellant, at page 7 (paragraphs 6.00-6.04) of the brief thereof, to the effect: [T]hat no identification parade was conducted in this case… [T]he purported identification of the Appellant by the 2nd accused person (sic) is no identification as it was rather strange and cannot take the place of the proper identification parade which under the law, is required in this case.

Instructively, the term ‘identification’ in criminal law, denotes the act or process of providing that a person charged with an offence and arraigned before a Court of law or Tribunal is the same person who actually committed that offense. The term ‘identification’ is varied and ubiquitous: (i) DOCK IDENTIFICATION: refers to an in-Court declaration by an eyewitness to a crime that the defendant (accused person) in the dock was the person who committed the crime or was present at the scene of the crime.

Also termed ‘in-Court identification’; (ii) EYEWITNESS IDENTIFICATION: This type of identification denotes a naming or description by which a person who has witnessed (seen) testifies from memory about the person or persons involved. For many years, Courts, especially in the USA, have recognized that eyewitness identification belongs to the league of the least reliable forms of evidence. Most particularly, DNA exonerations have proved that eyewitness identification is frequently inaccurate. See U.S.

VS BROWNLEE 454 F. 3d. 131, 141-142 (3d, Cir, 2006); MEMORY CORRUPTION, which is thus an issue in regard to the accuracy of eyewitness identification. See BLACK’S LAW DICTIONARY 11TH Edition, 2019 @ 893-894, 1180.

The essence of identification parade under the rules of criminal procedure and practice, cannot be overemphasized. Identification parade is required when the identity of the suspect is in doubt, most especially where: (i) The offence was committed in the dark and the victim only had a fleeting encounter with the robber, (ii) It is clear that the victim was traumatized in the course of the commission of the crime, (iii) The eyewitness or victim fails at the earliest opportunity to name the person known to him. Who he claims committed the crime.

However, where the victim of the crime or witness promptly identifies the suspect, there would be no need for an identification parade. See OSUAGWU VS. THE STATE (2013) LPELR-19823 (SC) Per Rhodes-Vivour, JSC @ 18 paragraphs B – F. The law is well settled, that where is good and cogent evidence linking the defendant (accused person) to the crime on the day of the incident, then a formal identification becomes quite unnecessary. See AFOLALU VS. THE STATE (2010) 16 NWLR (Pt. 1220) 584 PER Adekeye, JSC @ 616 paragraph A.

THOMAS VS THE STATE (2017) 9 NWLR (Pt. 1570) 230 @ 256 paragraphs G-H; et al.

What’s more, by virtue of Exhibits P10 and P12 (the Appellant’s confessional statements made at the Ibara police station and State CID Eleweran, respectively), there is every reason to believe that the Appellant had actively participated in the commission of the armed robbery in-question. Hear the Appellant (PW) in his own words: “On the 16/09/2010 at about 5pm, I received a phone call from one Morufu (surname unknown) who is a gang of mine, myself and Morufu have both robbed people on transit before, we both snatch bags from passerby of Adigbe area.

When he called me on phone on that day 16/9/2010, he told me to join him at Adedotun area where we normally meet when we are going for operation. When I got to Adedotun, I met Morufu who called me on phone and Lekan, though I have never met him with Lekan before. It is the first operation that I will go with Lekan. I only go on operation with Morufu. On 16/9/2010 at about 1900hrs, as we were going, myself, Morufu and Lekan on my motorcycle Reg.

No QS 218 AKD with guns, knife and cutlass to operation, though we did not have any specific place to go on that night, we only have it in mind that wherever we see open and chance we will rob. That is why when we got to Isabo junction and we saw a woman sitting in front of her shop, when we sighted this woman, we stopped and I parked my motorcycle. I positioned my motorcycle while Morufu and Lekan went with gun to the woman…”

Undoubtedly, the Appellant’s confessional statement (Exhibits P10 and P12) have been further corroborated by the evidence of the prosecution star witnesses, in the persons of the PW1 and PW2, copiously alluded to above. Thus, the active participation of the Appellant in perpetrating the armed robbery in question is not at all doubtful, notwithstanding the retracting of the said confessional statements by the Appellant in the eleventh hour!

Indeed, the doctrine is well settled, to the unmistakable effect, that a retraction of a confessional statement does not necessarily render such a statement void. That’s to say, a confessional statement does not become inadmissible merely because it is subsequently retracted by the maker thereof in the course of trial. See SOLOMON THOMAS AKPAN VS. THE STATE (1992) NWLR (pt. 248); (1992) 7 SCNJ 22; (1992) LPELR-381 (SC) per Karibi – Whyte, JSC @ 36 paragraphs E-F; SHITTU VS. THE STATE (1970) 1 ALL NLR 228; QUEEN VS. ITULE (1961) 1 ALL NLR 462; (1961) 2 SCNLR 183; ADAMU VS.

A.G BENDEL STATE (1986) 2 NWLR (pt. 22) 284; AREMU VS. THE STATE (1991) 7 NWLR (pt. 201) 1; EJINIMA VS. THE STATE  (1991) 6 NWLR (pt. 200) 627.

By virtue of the plethora of authorities on the point, inclusive of the locus classicus – R. VS. SKYES (1913) 8 CR. A.

R 233, in order to determine the weight to be attached to a confessional statement, it behooves the Court to resolve whether or not: (i) There is anything outside the confession to show that it is true: (ii) The confession is corroborated. (iii) There are relevant, facts made therein true as far as they can be tested; (iv) The defendant (Accused person) was one who had the opportunity of committing the offence armed robbery in the instant case. (v) The said confession was possible; (vi) The confession was consistent with other facts which have been ascertained and duly proved beyond reasonable doubt.

See NSOFOR VS. THE STATE (2004) 18 NWLR (pt. 905) 292; NWACHUKWU VS. THE STATE (2007) 17 NWLR (Pt. 1062) 31.

​A confessional statement, once it’s duly established to be free, voluntary, direct and positive, is quite sufficient to sustain a conviction. However, the Court is required to, first and foremost, test the veracity (truth) of the confession before acting thereupon, thus, once the Court comes to the inevitable conclusion that the confession is true, the confessional statement alone is sufficient to ground and support a conviction without corroboration.

Albeit the veritable test for determining the veracity of confessional statement, is to seek any other extraneous evidence, no matter how slight, of circumstances which render it probable that the confession is indeed true. See ALARAPE VS. THE STATE (2001) 5 NWLR (Pt. 705) 79 @ 98 Paragraphs F-G; ACHABUA VS. THE STATE (1976) 12 SC. (Pt. 63) 68-69.

Remarkably, the trial Court made some far-reaching findings in the course of the vexed judgment at pages 115-116 of the Record: 5) It is noteworthy that the 1st accused person (Appellant) who was later arrested on the 21/09/2010, stated in Exhibits P10 & P12 that the 1st accused was a new comer to their gang and his first robbery outing with them was on the 16/09/2010. He stated that he and Monefu (now at large) had been carrying out previous robberies together.

He further stated that five days after they robbed PW1 and PW2, he and Monefu met again at their usual spot and went on another expedition at Laderin Estate to harass workers on building sites and extort money from them, from where he got arrested and Monefu again escaped. 6) Also in Exhibits P10, P12, the 1st accused had stated that he was a commercial motorcyclist … and that on the 16/09/2010, he carried the other two robbers on that motorcycle to the scene of crime.

These extra-judicial statements of his one corroborated by the evidence of PW3 & PW4 to the effect that one Bajah Motorcycle was recovered on the day of the incident. They one also corroborated by the evidence of PW3 that the owner of the motorcycle applied to the police for its release and same was released to him on bond.

I find the confessions in the extra-judicial statements (Exhibits P10-P13) to be consistent with other facts which have been proved by the prosecution and I believe that the accused persons had the opportunity of committing the crime, particularly as they could not give satisfactory explanations in their oral evidence before this Court as to the cause of their arrests.

On the part thereof, the Court below aptly held at page 179 (lines 10-17) of the Record: The alibi the Appellant tried to set up in his evidence chief was Unverifiable and Unreliable. The alibi was not set up at the Police Station to enable the police carry out appropriate investigation. Analysis of the Status of the Confessional Statements was masterfully set out by the trial Judge in the judgment at pages 113-117.

His Lordship thus tested fully the reliability of the Confessional Statement and was right in basing the conviction of the Appellant on it; the Appellant having fully identified himself in the confession as a party to the robbery.

Arguably, the foregoing concurrent findings of the two Courts are most undoubtedly cogent, unassailable, and duly supported by the evidence on record.

As aptly postulated by the Court below at page 179 (lines 18-22) of the said Record, although the Appellant did not specifically challenge the finding of the trial Court in regard to the conspiracy count, there is no doubt from Exhibits P10 and P12 in question, the Appellant and the two other persons had formed a common intention (agreement) to effect an unlawful purpose: armed robbery. Undoubtedly, the Appellant and the two other persons did not act individually, but rather, in pursuance of a common purpose with a view to committing armed robbery.

Thus, the actual commission of the offence of the armed robbery in question provided a veritable evidence of the trio’s common intention, as aptly held by the two Courts below in the concurrent findings thereof in question.

Indeed, it’s a well settled doctrine per-adventure by this Court in a plethora of veritable authorities, that where there is sufficient evidence to support concurrent findings by the two lower Courts, such findings ought not to be tempered with (disturbed), unless the findings are shown to be perverse, or occasioned some miscarriage of justice, or breached some fundamental principle of law or procedure. See OGOALA VS. THE STATE (1991) 2 NWLR (pt. 175) 509; (1991) 3 SCNJ, 61; (1991) 3 SC 80; (1991) LPELR-2307 (SC) per Nnaemeka – Agu, JSC @ 25-26 paragraphs G-B; NASAMU VS.

THE STATE (1979) 69 SC 173. SOBAKIN VS. THE STATE (1981) 5SC 75; NWIBOKO VS. THE STATE (1985) 4 SC (pt. 11) 183; IKEM VS. THE STATE (1985) 1 NWLR (pt.2) 378 @ 388.

Hence, against the backdrop of the foregoing far-reaching postulations, I am of the considered view that the sole issue raised and canvassed in the appeal by the respective parties ought to be, and same is hereby resolved against the Appellant. Thus, having ultimately resolved the sole issue against the Appellant, the appeal resultantly fails, and same is hereby dismissed by me.

The concurrent judgment of the Court below, is hereby affirmed.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC, and to register the support I have in the reasonings from which the decision emanated, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal Ibadan Division or Court below or lower Court, Coram: M.B. Dongban-Mensem, C.E. lyizoba and N. Okoronkwo JJCA, delivered on the 28th day of October, 2016. In the said judgment, the Court below affirmed the decision of the trial Court of 18th December, 2014 wherein, the Appellant was convicted and sentenced to death by hanging.

Dissatisfied with the judgment of the lower Court, the Appellant has come before this Court upon two grounds of appeal.

At the hearing on the 28th January, 2021, date of hearing, learned counsel for the appellant, M.O. Adebayo adopted the brief of argument filed on 6/2/2018 and deemed filed on 21/11/2019. He distilled a sole issue for determination, viz:- Whether by the nature of evidence on record, the learned Justices of the Court of appeal rightly affirmed the conviction and sentence of the appellant by the trial Court in holding that the prosecution had proved its case against the appellant beyond reasonable doubt. (This issue covers the two grounds of appeal).

Learned counsel for the respondent Adekolapo Ilori adopted the brief of argument filed on 23/4/2018 and deemed filed on 21/11/2019 and crafted a sole issue as follows: Whether from the entirety of the evidence on Record, as well as material available, the conviction of the appellant for the offences of conspiracy to commit Armed Robbery as well as Armed Robbery is justified in the circumstances of this case.

For ease of reference, I shall make use of the issue drafted by the appellant.

SOLE ISSUE Whether by the nature of evidence on record, the learned Justices of the Court of appeal rightly affirmed the conviction and sentence of the appellant by the trial Court in holding that the prosecution has proved its case against the appellant beyond reasonable doubt. Learned counsel for the appellant contended that the alleged offence was committed around 7p.m in the night and the appellant was not arrested at the scene of crime and so the identity of the culprit was doubtful.

​That PW2 did not identify the accused persons including the appellant as the perpetrators of the alleged armed robbery. That the testimonies of the PW1 contradicted an essential part of the extra judicial confession of the 2nd accused (Exhibit PW1) which confession forms part of the prosecution’s case.

It was submitted for the appellant that an identification parade was a necessity and having not been carried out, there is a doubt which had to be resolved in favour of the appellant. He cited Bozin v State (1985) NNCC Vol. 16 (part II) p. 1087 at 1092.

For the appellant, it was contended that the appellant consistently denied the commission of the offence and also denied the authorship of the confessional statements, Exhibits P10 & 12.

That the prosecution failed to establish the elements of the charge of armed robbery and conspiracy to commit armed robbery against the appellant as there is nothing linking the appellant to the robbery based on the evidence before the Court including the testimonies of PW1 and PW2.

​Learned counsel for the respondent contended that the prosecution made out the offences of armed robbery and conspiracy to commit armed robbery beyond reasonable doubt. That the confessional statement of the appellant denied herein did not render the statement void. He cited Nwaebonyi v The State (1994) 5 NWLR (pt. 343) 138.

He stated that the appellant did not give any material with which the alibi he raised would be substantiated. He cited Essien v The State (2013) LPELR-20749.

That the circumstantial pieces of evidence adduced at the trial of the appellant are cogent and clearly pointed to the conspiracy to commit armed robbery and armed robbery for which the appellant was convicted. He cited Akinmoju v The State (2000) 6 NWLR (pt. 662) 608 at 629.

The contest in this appeal are along two opposing angles, for the appellant, that the Court below erred in law when it considered Exhibit P10 which was erroneously held to be the retracted confessional statement of the appellant to affirm the decision of the trial Court. That the appellant was not properly identified.

For the respondent, it was posited that the evidence adduced was both circumstantial and confessional and not just cogent but complete and unequivocal, that no other conclusion ought to be inferred than, that the appellant was not only at the scene of crime on the day of the incident, but he also committed the offences for which he was convicted.

It is now well settled in law that, what is required in proof of a criminal offence including the armed robbery and conspiracy to commit armed robbery charge under discourse is that the essential ingredients of the offence are proved beyond reasonable doubt by the prosecution and it is not expected that the standard of proof is one beyond every shadow of doubt.

It follows that to sustain a charge of Armed Robbery against the accused person, the following ingredients must be proved beyond reasonable doubt: (a) That there was an armed robbery or a series of robberies (b) That each of the robberies was an armed robbery (c) That the accused was one of those who took part in the robbery or robberies. I rely on Miller v Minister of Pensions (947) 2 All ER 372; Agboola V State (2013) 11 NWLR (pt. 1366) 619 at 173.

​A combination of the evidence of PW1, PW2, PW3 and PW4 coupled with Exhibits P1-P11 tendered at the trial Court all gave evidence to the fact that, there indeed was an armed robbery on the 16th November, 2010 at No. 62, Isabo road, Abeokuta. A bit of the evidence of PW1 – Rukayat Ajayi on 16th November, 2010 is thus:- “I was at my shop and a consignment of rice and oil was being offloaded for me. Then I saw the 1st accused person was holding a gun and pointing it at me…”

The 1st accused is the appellant herein. The said gun pointed at PW1, which infact qualifies the Robbery as “Armed” is perhaps one of the locally. made guns tendered as Exhibits P6 and P7, recovered at the scene of arrest of DW2, the co-accused, after the two had escaped. Additionally to the testimony of PW1, supported by Exhibits P6 and P7, the confessional statements marked Exhibits P10 and P12, made at the Ibara Police Station and State CID, was one of those who took part in the crime, even when he had resiled from therefrom at the trial.

The accused, in his confessional statement stated: “On the 16/09/2010 at about 5pm, I received a phone call from one Morufu (surname unknown) who is a gang of mine; myself and Morufu have both robbed people on transit before, we both snatch bags from passers-by of Adigbe area. When he called me on phone on that day 16/9/2010, he told me to join him at Adedotun area where we normally meet when we are going for operation. When I got to Adedotun, I met Morufu who called me on phone and Lekan, though I have never met him with Lekan before. It is the first operation that I will go with Lekan.

I only go on operation with Morufu. On 16/9/2010 at about 1900hrs, as we were going, myself, Morufu and Lekan on my motorcycle Reg. No QS 218 AKD with guns, knife and cutlass to operation, though we did not have any guns, knife and cutlass to operation, though we did not have any specific place to go on that night, we only have it in mind that wherever we see open and chance we will rob. That is why when we got to Isabo junction and we saw a woman sitting in front of her shop, when we sighted this woman, we stopped and I parked my motorcycle.

I positioned my motorcycle while Morufu and Lekan went with gun to the woman…”

The confessional statement of DW1, the accused is further corroborated by the evidence of PW2; ZAINAB AHMED under examination-in-chief, who gave a vivid account of what occurred viz: “…I recollect that on the 16th September, 2010 at about 7pm, myself and my mother were sitting at two different tables in front of her shop. The people that came to offload goods were sitting at the 3rd shop of ours. Suddenly, a man appeared and stood before my mother, asking her to co-operate because he is “jegun-jeran” (Someone that eats the meat along with the bone) failing which he will try his gun on me.

He said all he needed was her bag, and that he was not holding a toy gun. I looked around and saw that another man with a gun holding the people in the 3rd shop to ours hostage. I saw another man sitting on a stand-by motorcycle. There were 3 men that came for the robbery operation…”

The appellant had made much of his retraction of the confessional statement.

A retraction of a confessional statement by an accused person does not render such statement void.

Rather, it is settled principle as laid down by this Honourable Court that the weight to be attached to a Confessional Statement, whether or not retracted, be applied as in Nwaebonyi v The State (1994) 5 NWLR (Part 343) 138, held thus; “In R. v. SYKES (1913) 8 CR App Rep.233 the leading authority on the weight to be attached to a confessional statement whether or not retracted, followed by the West African Court of Appeal in KANU v. THE KING(1952) 14 WACA 30 and thereafter by this Court in several of its decisions such as DAWA v. THE STATE (1980) 8-11 SC 235; THE QUEEN V.

OBIASA(1962) 1 ALL NLR 651; (1962) 1 SCNLR 137; OBOSI V. THE STATE (1965) NMLR 129 and ONOCHIE V. THE REPUBLIC (1966) NMLR 307 to mention but a few, the following rules were stated in order to decide the weight to be attached to it- 1. Is there anything outside the confession to show that it is true? 2. Is it corroborated? 3. Are there relevant statements made in it of facts true as far as they can be tested? 4. Was the prisoner one who had the opportunity of committing the murder? (where it is a case of murder) 5. Is his confession possible? 6.

Is it consistent with other facts which have been ascertained and have been proved? See also NSOFOR V. THE STATE (2004) 18 NWLR (PART 905) 292; OJEGELE V. THE STATE (1988) 1 NWLR (PART 71) 414; NWACHUKWU v. THE STATE (2007) 17 NWLR (PART 1062) 31”

​From a plethora of cases so decided by this Court, it is settled principle of law that a confessional statement without more, which passed the above tests as laid down by this Court as in this case is enough to sustain a conviction of an accused person. In Alarape & 3 Ors v. The State (2001) 5 NWLR (Part 705) 79, 98 F-G this Honourable Court per Iguh, JSC held that: “A confessional statement, so long as it is free and voluntary and it is direct, positive and properly proved, is enough to sustain a conviction.

The Court should not, however, act on the confession without first testing the truth thereof. But so long as the Court is satisfied with its truth, a confessional statement alone is sufficient to ground and support a conviction without corroboration.

The test, however, for determining the veracity or otherwise of a confessional statement is to seek any other evidence, be it slight, of circumstances which make it probable that the confession is true.” See; Achabua v The State (1976) 12 S.C. (Part 63) 68-69 Clearly, the confessions Exhibits P10 and P12 alone being sufficient to justify the conviction of the Appellant for the offences of conspiracy to commit Armed Robbery and Armed Robbery, there are other pieces of evidence adduced at the trial that sustain the conviction of the Appellant, PW2 the victim of the Armed Robbery who gave evidence of the event as follows: “l recollect that on the 16th September, 2010, at about 7pm, myself and my mother were sitting at two different tables in front of her shop.

The people that came to offload goods were sitting at the 3rd shop of ours. Suddenly, a man appeared and stood before my mother, asking her to co-operate because he is “Jegun-jeran” (someone: that eats the meat along with the bone) failing which he will try his gun on me.” He said all he needed was her bag, and that he was not holding a toy gun. I looked around and saw that another man with a gun holding the people in the 3rd shop to ours hostage. I saw another man sitting on a stand-bye motorcycle. There were 3 men that came for the robbery operation…”

The evidence of PW2-ZAlNAB AHMED was neither challenged, discredited nor was she contravened under cross-examination by the Appellant’s Counsel and the trial High Court was bound to accept and act on it. In Aigbadion v. State (2000) 7 NWLR (Part 666) 686, 702-703 H-A the Supreme Court per Kastina-Alu, JSC (as he then was) “This evidence was not challenged or contradicted. The law, as I know it, is that such evidence will be accepted as proof of a fact it seeks to establish: see Nwede v The State (1985) 3 NWLR (Pt. 13) 444.

If therefore the story of an accused stands uncontradicted then it is to the facts as put forward by him that the trial judge would related the applicable law…”

PW3 – OGUNLEYE IDOWU, the Police Officer attached to the State C.I.D. Anti-Robbery Section, Abeokuta, under examination testified as to what transpired on the 23rd September, 2010 when the Accused persons were brought in. She testified thus; “l know the accused person. I remember the 23rd September, 2010, I was on duty at the above office when the 2 accused persons were transferred from Ibara Division along with the case file and exhibits (2 locally made guns, one live cartridge, one expended cartridge, a cutlass, one knife and one motorcycle…”

​Upon tendering the said exhibits and subsequently being admitted and marked, except for the motorcycle (whose Application for Release and Bond Paper were later admitted and marked Exhibits P8 and P9 respectively), PW3 testified inter alia that; “The motorcycle was released on bond to one Oladiende Akeem who claimed to have given the Motorcycle to the 1st accused for commercial business and he produced the original particulars of the motorcycle.

The said Oladeinde Akeem volunteered a statement before the motorcycle was released to him on bond and he also applied for the release of the motorcycle…”

The evidence of PW3, was not impugned by Counsel to the Appellant especially as regards the said motorcycle, neither was any effort made to discredit or deny the fact that the Accused, (now Appellant) had been riding a motorcycle prior to the 16th September, 2010 and his subsequent arrest. The existence of this Lifan Motorcycle with Reg.

No QS 218 AKD, which was ridden by the DW1 on the day of the Armed Robbery, which was later abandoned on pursuit and later recovered by the Nigeria Police clearly and unequivocally links DW1 to the scene of the crime on that very night, which was in fact corroborated by the testimony of PW2 when she said; “… I saw another man sitting on a stand-by motorcycle…”

​In addition to the testimony of PW2, through the proofs of evidence, it is seen how Oladiende Akeem gave his younger brother Ismaila Alao some money to buy a motorcycle in his name and thereafter gave it to the 1st Accused person to use for commercial purpose. This fact is further confirmed in the confessional statement of the 1st accused when he said; “…Presently now I am an Okada rider before this incident on 16/9/2010. I have my own personal Okada but it got spoiled, but the Okada I am riding now belongs to one Ismaila (surname unknown) we are in the same Okada park.

That is why he gave me Okada to ride and I am deliver to him everyday (sic). I collected this Okada Reg No. QS 218 AKD from him on the. 13/9/2010 to ride…”

At this point, the attempt of the accused to bring up a defence of alibi during trial when he gave evidence thus: “l recalled the 16/09/2010. On the day, I went to where I do bricklaying work, somewhere behind mechanic village at Kobape, and I returned home at 6:30pm and slept. On the 17th and 18th I also went to work and on the 19th was Sunday and I did not go to work. On Monday the 20th, I was weak and did not go to work. It was on the 21st September, 2010, that I went to the same site again at Kobape…”

It is a well known principle of law that for the defence of alibi to succeed; that is to say “l could not have possibly been at the scene of the crime at that instant time because I were somewhere else”, it should be raised at the earliest possible time, and there are infact a whole lot of cases to this effect. I shall cite: In Egwumi v The State (2013) LPELR-20091(SC) the Supreme Court per Rhodes-Vivour, JSC held that: “When an accused person raises the defence of alibi what he is saying is that when the offence for which I am charged was committed I was elsewhere. 1.

The defence of alibi must be properly put at the earliest opportunity by the accused person and this would be when he has the opportunity to make his statement to the Police. It must be detailed on where he was on the date in question who he has with. It would then be the duty of the prosecution (the investigating police officer) to investigate it. Failure to investigate properly may cost some doubt on the probability of the prosecutions case. 2. The accused person is required to raise the defence of alibi and the adduce evidence in support.

The burden of proving an alibi is on the prosecution and not on the accused person. 3. A defence of alibi fails when the prosecution is able to show that the accused person was at the scene of crime when the offence was committed. 4.

Where an alibi is raised for the first time during trial the prosecution is expected to rely on its witnesses to show that the alibi is untrue, since at this stage the alibi cannot be investigated.” It is therefore respectfully posited that not only was the defence of alibi raised only at the trial and long after the accused was arrested and investigations concluded, the accused, at the trial High Court was unable to adduce any evidence to support this defence that he was somewhere else on 16th September, 2010, at the time of the incident.

All he could say at the trial was that he was at his bricklaying job and returned home at 6:30pm. This is unreliable and unverified, and also not corroborated by anyone or person. The fact that the Prosecution is saddled with the responsibility of rebutting or disapproving the alibi does not mean the Police would go on a wild goose chase in search of evidence to the contrary without being furnished with adequate information by the accused who so alleges.

This point was infact succinctly captured in the judgment of this Court in Essien v The State (2013) LPELR-20749 per Ariwoola, JSC, where it was held that; “By the defence of alibi, the accused person seeks to raise a doubt of what might have been a fool proof case of the prosecution by saying that he was somewhere else at the time the crime was alleged to have been committed but not at the scene of crime.

Therefore, as where he was at the material time is a matter especially within his knowledge, the law required that for his defence of alibi to avail him and succeed in raising doubt in his favour, he ought to do certain things. Importantly, he ought to raise the defence at the earliest possible opportunity. He ought to in his statement give such details and particulars of his whereabouts that the police can investigate. This is the evidential burden on him in his defence of alibi. See; Esangbedo V. The State (1989) NWLR (pt. 113) 57; (1989) LPELR 1163; Akile Gachi & Ors V.

The State (1965) NMLR 333 at 335; Abudu V. The State ​(1985) 1 NWLR (pt. 1) 55; Nwabueze v. The State (1988) 4 NWLR (pt.86) 16 at 34. It is instructive to note and this Court has restated over and over again, that even though it is a duty on the prosecution to investigate an alibi set up by an accused, that he was somewhere else at the time of the alleged crime, the police are not and should not be expected to go on a wild goose chase in order to investigate an alibi. See; Okosi & Ors V. The State (1989) CLRN 29 at 48. Olatinwo v. The State (2013) LPELR 19979.”

On the other hand, the prosecution proved beyond reasonable doubt that the appellant not only was at the scene of the crime on 16th September, 2010. This, has successfully established by the direct Evidence in Exhibits P10 and P12; the confessional statement of the appellant, DW1, adequately corroborated by the evidence of PW1, PW2, PW3 and PW4, together with the circumstantial evidence available in abundance.

On the importance and effect of circumstantial evidence in criminal trials, the Supreme Court per Aniagolu, JSC in Onah v. The State (1985) 3 NWLR (Part 12) 236, 244 C-D held that: “It was a case of circumstantial evidence and the rightful inference to be drawn therefrom. Humphery, J. in Rex v.

Chung & Miao cited in Wills of Circumstantial Evidence seventh edition (1936) at page 324 is quoted as having stated that: ‘Circumstantial evidence is as good as, sometimes better than, any other sort of evidence, what is meant by is that there is, a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the jury they may well and properly act upon such circumstantial evidence.” See also: – Ukorah v.

The State (1977) 4 S.C. 167, 174 – Esai v State (1976) 11 S.C. 39 – Adekunle v State (2006) 14 NWLR (Part 1000) 349 – Uwaekweghinya v State (2005) NWLR (Part 930) 227 It was also held in Akinbisade v. The State (2006) 17 NWLR (Part 1007) 184, 212 A-B by the Supreme Court per Kalgo, JSC that: “It is also well settled that for any circumstantial evidence to support the conviction of the offence charged, that evidence must be credible, cogent, consistent, and unequivocal and leads to no conclusion other than the guilt of the person charged with the offence.”

I agree with the submission of the Respondent that the circumstantial evidence in the present appeal which warranted the conviction of the Appellant for the offences for which he was subsequently convicted the following: (a) There was a robbery attack on the PW1 at her shop on 16th September, 2010, at about 7pm and that there were three men who came on a motorcycle (b) The robbers were armed with guns and knives, which they threatened to use on PW1 and her daughter PW2. (c) Upon collecting the bag of PW1 which contained Three Hundred and fifty thousand naira (N350,000), and the phones of PW2 and another victim around, the three robbers climbed the motorcycle and drove away (d) PW1 subsequently raised an alarm and the robbers were pursued by a mob and subsequent knocked down by a vehicle (e) The Appellant and one Morufu, now at large escaped.

However, his co-accused as caught and handed over to the police the same day the robbery incident occurred; along with a motorcycle with Registration No.

QS 218 AKD (f) That the appellant was later caught five (5) days later around Kobape, Abeokuta in possession of a cutlass, where he apparently had gone to rob yet again in company of Morufu, who unfortunately escaped again. (g) PW3 testified under examination that the said motorcycle had been released on bond marked Exhibit P9 to one Oladeinde Akeem, who had applied for its release, showing the original papers of the motorcycle issued in his name. Oladeinde Akeem also claimed to have been given the motorcycle to the appellant for commercial business.

The above enumerated pieces of circumstantial evidence adduced at the trial and cogent, clearly point to the commission of the offences of conspiracy to commit armed robbery and armed robbery for which the appellant was convicted.

Assuming that the Appellant did not make, or Exhibits P10 and P12 are not in existence, the whole circumstantial evidence in this case is credible, cogent, consistent, unequivocal and leads to one conclusion only that the Appellant was one of the three (3) men that carried out the armed robbery incidence on 16th September, 2010 at the shop of PW1. ​Furthermore, the evidence demonstrated that the Appellant made Exhibit P10 and P12 which corroborate the circumstances and other evidence adduced by the Respondents as Prosecution at the trial of the Appellant: the effect of which is as outlined above and justifying his conviction by the trial High Court as affirmed by the lower Court of appeal.

The onus thereafter rested on the appellant to rebut the presumption of guilt or to cast a reasonable doubt on the case of the prosecution by the preponderance of probabilities. The accused/appellant has not shown the capacity for such rebuttal or the casting of a reasonable doubt on the case put forward by the prosecution by preponderance of probabilities. It is no wonder the two Courts below made the conviction. See Akinmoju v The State (2000) 6 NWLR (Pt. 662) 609 at 629 per Iguh, JSC.

In respect to the question of the irregular identification and the need for an identification parade which the appellant posed. I shall rely on the case of Afolalu v The State (2010) 16 NWLR (Pt. 1220) 584 at 616 per Adekeye, JSC in which he held thus:- “identification parade is not obligatory, where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification parade may be unnecessary”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Similarly, inThomas v State(2017) 9 NWLR (part 1570) 230, 256 G-H the Supreme Court per Kekere-Ekun, J.S.C: “It is not in every case that an identification parade is necessary to identify a person accused of committing a crime.

The question whether an accused person is properly identified as being one of those who committed the offence is a question of fact to be determined by the trial Court on the evidence adduced for that purpose… In a case such as this where the evidence of PW2 as positive, cogent and unshaken under cross-examination, the learned trial Judge was entitled to rely on it along with other facts established by the prosecution in finding that the prosecution had proved its case beyond reasonable doubt”.

Following in the guide laid down byAfolalu v The State(supra), even if all other evidence adduced in this case were to be isolated, the fact that the motorcycle was Reg. No. QS 218 AKD was recovered at the scene of the arrest is a strong indicator to the fact that indeed there is an iota of truth to the findings of the two Courts below. The appellant on the other hand neither denied the fact that he was given a motorcycle nor did he report such missing so as to raise a doubt that he was not the one who rode the motorcycle on the date in question.

The appellant has appealed against the concurrent findings of facts by the two Courts below and so, this Court is averse to interfering with them when there is no miscarriage of justice occasioned. Also not available is a misapplication of law in the course of those lower Courts findings. The point has to be made that the Supreme Court or even an appellant does not enter into the interference and the disturbance of concurrent findings of Courts below which as in this instance stemmed from the evidence led and grounded in the applicable laws.

See Ibikunle v The State (2007) 2 NWLR (Pt. 1019) 546 at 567 per Onu, JSC; Shehu v The State (2010) 8 NWLR (Pt. 1195) 112 at 135 per Ogbuagu, JSC, Agbi & Ors v Ogbeh (2006) 11 NWLR (pt. 990) 65 per Musdapher, JSC (as he then was).

Clearly, there is no merit in this appeal and I do not hesitate in dismissing it.

Appeal dismissed and I abide by the consequential orders made. Appeal Dismissed.

-PER

JOHN INYANG OKORO, J.S.C.: I had the opportunity of perusing before now, a draft copy of the leading judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC. I entirely agree with his reasons and conclusion reached therein that this appeal is devoid of merit and deserves to be dismissed. I shall only make a few comments in support of what my brother has already done.

The position of the law is settled that in a criminal trial, there are three ways of establishing that an offence has been committed, to wit: (a) by direct evidence of an eyewitness; or (b) by circumstantial evidence; or (c) by confessional evidence of the accused person. See F.R.N. vs Barminas (2017) 15 NWLR (pt. 1588) 177; Igbikis v. State (2017) 11 NWLR (pt. 1575) 126. The Court can safely convict an accused person where it is convinced that the prosecution has sufficiently employed any of these modes to prove the guilt of the accused.

In the instant case, it is not in doubt that there was robbery on 16/9/2010. The Appellant’s confessional statement which was admitted as Exhibits P10 and P12 corroborates the evidence of PW1 and PW2 who were eye witnesses that the Appellant was one of the robbers and that he was armed during the operation.

These are unassailable pieces of evidence and the law is clear that the evidence of a single witness, if credible and cogent, is sufficient to ground a conviction. See Ogoala v. State (1991) 2 NWLR (pt. 175) 509.

Moreover, a confessional statement is the best form of evidence employable to prove the guilt of an accused person. Where a confession is proved to be positive and truthful, such a statement is sufficient to ground conviction without more, and it is immaterial that the accused person later resiled from making the statement as in this case. See Ikemson v. State (1989) 3 NWLR (pt. 110) 455.

My learned brother has listed the perimeters for measuring the truthfulness of a retracted confessional statement so as to determine the weight to be attached to it as outlined in R. vs Sykes (1913) 8 CA R 233. In this case, all the indices align with the probability that the Appellant’s confession in Exhibits 10 and 12 was the truth and the Court was right to rely on it.

​In the final analysis, this appeal has no scintilla of merit. It is hereby dismissed by me. I abide by the orders made in the lead judgment. Appeal Dismissed.

EJEMBI EKO, J.S.C.: The Appellant and another were tried jointly for conspiracy to commit armed robbery and the commission of armed robbery contrary, respectively, to Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special provisions) Act. The Appellant, convicted for both offences, appealed. The lower Court dismissed the appeal; hence, this further appeal.

The Notice of Appeal, at pages 182-185 of the Record, filed on 20th January, 2017, against the decision delivered on 28th October, 2010 (85 days thereafter) is clearly defective, having been filed out of time. Section 27(2)(b) the Supreme Court Act, 2004, provides, mandatorily, that the period prescribed for giving notice of appeal in an appeal in a criminal case shall be “thirty days from the date of the decision appealed against”. Prima facie, this appeal is incompetent, invalid and a nullity.

At page 3, paragraph 1.10 of the Respondent’s brief there is, however, this ambivalent statement to wit: By motion on Notice of 6th February, 2018, the Appellant had sought to regularise the appeal as well as the Appellant’s Brief of 6th February, 2018 service of which was effected upon the Respondent on 9th April, 2018.”

The Appellant’s counsel did not react to it. Apart from this terse statement there is no evidence, if at all, that the Motion filed on 6th February, 2018 to regularise the incompetent appeal was ever moved, and the appeal duly “regularised”. When an appeal is incompetent and void ab initio the jurisdiction of this Court cannot be activated to even regularise it. In ADERIBIGBE v.

ABIDOYE (2009) LPELR-140 (SC) at 28-29 it was held that when an appeal is void ab initio, the jurisdiction of the Court is not even activated to empower it to grant leave in the “appeal” for an additional ground of appeal to be filed and argued: even if the issue in the additional ground is one raising substantive issue of law or jurisdiction. In other words, an incompetent appeal cannot be regularised subsequently; the appeal being dead on arrival. One, anyway, cannot place something upon nothing and expect it to stand: MCFOY v. U. A. C LTD (1961) 3 ALL E.R. 1169; (1962) A. C. 152.

​Whatever comments I make on the merits of this appeal will therefore be merely obiter dictum.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

This appeal is just a frivolous exercise. Exhibits P10 and P12 are the Appellant’s confessional statements. They were admitted in evidence against the Appellant’s without objection – see pages 61 and 65 of the Record. Accordingly, involuntariness of their making not being an issue, the mini trial to resolve the voluntariness or otherwise was not conducted as it was not necessary. At page 69, when the Appellant testified as DW1, he was shown only Exhibit P12 and he retorted: It was Exhibit P12 that the policeman thumb printed my thumb on.

Exhibit P10 was not similarly shown to him, and there was no similar indictment of Exhibit P10. The said Exhibit P10 is also a confessional statement. Even without Exhibit P12, the conviction of the appellant could still be sustained on Exhibit P10 alone.

In paragraph 5.05 of the Appellant’s brief there appears this misleading statement that the Appellant denied making Exhibit P10. That is false. He never did, from the Record.

Exhibit P10, a confession, had fixed the Appellant to the alleged crimes. It is therefore not correct for the Appellant’s counsel to submit, as he did, that because the PW1 admitted seeing the Appellant for the first time at the trial Court it was “Impossible and doubtful” that the Appellant made his confessions in Exhibits P10 and P12.

It is similarly incorrect for the Appellant’s counsel to have submitted (in paragraph 6.02 of the Appellant’s Brief) that identification parade was “necessary and must be conducted” in view of the evidence of the PW.1, the victim; notwithstanding the Appellant’s own confession fixing him to the alleged offences. No issue was raised or made that Exhibit P10, recorded by PW3 and counter-signed by a superior police officer, was oppressively recorded or extracted from the Appellant; or that it was non est factum. It was not also retracted.

The making of Exhibit P10 was not in anyway, allegedly, offensive and/or contrary to Section 29 of the Evidence Act, 2011.

I think I should point out that, the mere fact that the Appellant, as DW1 in a clear afterthought, stated without proof that he was forced to thumbprint Exhibit P12 does not render Exhibits P10 and P12 inadmissible against him. The mere fact of his resiling from Exhibit P12 does not necessarily render Exhibits P10 and P12 inadmissible; R. v. KANU (1952) 14 WACA 30; EGBOGHONOME v. THE STATE (1993) 7 NWLR (pt. 306) 383; NWAEBONYI v. THE STATE (1994) 4 NWLR (pt. 343) 138 at 150 – 151.

I find no basis for this appeal, even if it were competent. I would have dismissed it in its entirety, in tandem with my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JSC, and in agreement with the Respondent.

ADAMU JAURO, J.S.C.: I had the privilege of reading in advance, the lead judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC. I am in agreement with the reasoning and conclusion to the effect that the appeal is lacking in merit and ought to be dismissed.

​I adopt the said judgment as mine in dismissing the appeal. Appeal Dismissed.

Judgment

AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment) : The Appellant, who allegedly caused the death of one “Hassan Ismail by using a cutlass and inflicted a serious cut on his thigh”, was tried, convicted and sentenced to death by the Sokoto State High Court for the offence of culpable homicide punishable with death.

On appeal, however, the Court of Appeal reversed the trial Court’s decision, and reduced his sentence to 10-years imprisonment for culpable homicide NOT punishable with death, and the Appellant has now appealed to this Court with a Notice of Appeal containing two Grounds of Appeal.

He distilled two Issues for Determination from the two Grounds of Appeal in his Brief of Argument, however, the Respondent objected to the issues formulated by the Appellant from the Grounds of Appeal. It submitted that Ground 2 is an omnibus ground of appeal, which is a general ground that contends that the decision in question, is against the weight of evidence; that Issue 1 cannot arise from Ground 2, since an omnibus ground cannot give rise to an issue raising specific points of law, citing Calabar East Co-op. V. Ikot (1999) 14 NWLR (Pt. 638) 225, Henkel Chem. Ltd V. A.G.

Ferrero (2003) 4 NWLR (Pt. 810) 306; and an omnibus ground cannot be used to challenge specific findings of fact or law or finding on a document, citingNdiwe V. Okocha (1992) 7 NWLR (Pt. 252) 129, Abdullahi V. Oba (1998) 6 NWLR (Pt. 554) 420, Akinlagun V. Oshoboja (2006) 5 SC (Pt. II) 100, Osolu V. Osolu (2003) 6 SC (Pt. I) 1.

It further submitted that since Ground 1 is challenging the finding of the Court of Appeal, that the Prosecution proved its case beyond reasonable doubt by circumstantial evidence, and his Issue 2 questions whether the defence of self-defence did not avail the Appellant so as to entitle him to be discharged and acquitted, there is no correlation between the said Ground 1 of the Grounds of Appeal and his Issue 2, therefore, the said Ground 1 cannot give rise to Issue 2 distilled by him.

It is its contention that the two Issues formulated by the Appellant are incompetent and it, therefore, urged the Court to dismiss the appeal.

The Appellant did not file a Reply Brief, but Respondent raised a vital question – what is the Issue(s) for Determination in this appeal? It is an elementary principle that grounds of appeal arise from the ratio decidendi of the decision appealed against and the issues formulated for the determination of the appeal, arise from the grounds of appeal, which emanated from the decision appealed against - see Ibigbami & Anor V. Military Governor, Ekiti State (2004) 4 NWLR (Pt. 863) SC.

The Respondent is right that an omnibus ground of appeal is not against a specific finding of fact or any document, and cannot be used to raise any issue of law or error in law – see Akinlagun V. Oshoboja (supra) and Osolu V. Osolu (supra), wherein this Court explained that: When a complaint is against the weight of evidence, the complaint must be against the totality of the evidence adduced at the trial Court not against any specific issue. The complaint is only concerned with the appraisal and evaluation of all the evidence; not the weight to be attached to any particular piece of evidence.

In this case, the Appellant complained as follows in the said Ground 2: The affirmation by the Court of Appeal that the Prosecution proved its case beyond reasonable doubt is unwarranted and cannot be supported having regards to the evidence adduced at the trial.

He indicated at page 5 of his Brief of Argument that Issue 1 is “distilled from Ground 2″, of the Grounds of Appeal. The said Issue 1 questions: Whether the lower Court was right in not entirely allowing the Appeal of the Appellant before it, having regard to the failure of the Prosecution to prove the offence against the Appellant at the trial Court upon credible and legally admissible evidence.

Obviously, the complaint in Ground 2 of the Grounds of Appeal is not against the weight to be attached to any particular piece of evidence, and the Appellant did not refer to a specific finding in the said Issue 1. The question raised by Issue 1 is related to the Appellant’s complaint, touching on weight of evidence in Ground 2 of the Grounds of Appeal, therefore, the Respondent’s objection on this point totally lacks merit.

The Respondent also objected to Issue 2 that Appellant distilled from Ground 1 of the Grounds of Appeal, wherein he complained that: The Court of Appeal erred in law when it held that: The circumstantial evidence in the instant case leaves no room for reasonable doubt that the Appellant was the one that caused the injury to the deceased, which resulted in the death of the latter. The Prosecution had proved beyond reasonable doubt that the Appellant caused the death of the deceased. PARTICULARS 1.

None of the six (6) witnesses called by the Prosecution was an eye witness to the fight between the deceased and the Appellant from the Records of Appeal before the lower Court. 2. There was a material contradiction between the evidence given by Nura Rabiu (PW3) and the statement made by the said witness, tendered as Exhibit D during trial. 3. There was no sufficient piece of evidence outside the confessional statement tendered as Exhibit E & E1 during trial to ground a conviction. 4.

The circumstantial evidence relied upon by the trial Court and affirmed by the lower Court left room for doubt about whether the Appellant’s action caused the injury that led to the death of the deceased. 5. The lower Court did not dispassionately consider all defences put forward by the Appellant during trial before affirming that the Prosecution proved its case beyond reasonable doubt.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Issue 2, which the Appellant distilled from the said Ground 1 questions: Whether from the evidence on the Record, the defence of self-defence did not avail the Appellant as to entitle him to be discharged and acquitted of the offence as charged.

Apparently, in arguing that there is no correlation between the said Ground 1 and Issue 2, the Respondent did not take cognizance of the Particulars of the said Ground 1. It is settled that Particulars are the specifications of errors or misdirection which shows what a complaint against the decision is.

They are the specific reasoning, finding or observations relating to an error or misdirection complained of, and to determine whether a ground of appeal is relevant to the issue formulated, it must be read together with its Particulars to make it a complete Ground, and it must be based on the issue in controversy – Nyako V. Adamawa State House of Assembly (2016) LPELR-41822(SC).

​In this case, the Appellant’s complaint in the main Ground is that the Court below erred in law when it held that the Prosecution proved beyond reasonable doubt that he caused the death of the deceased, and in Particulars No 5 of the said Ground 1, Appellant specified that: The lower Court did not dispassionately consider all defences put forward by the Appellant during trial before affirming that the Prosecution proved its case beyond reasonable doubt.

He did not mention self-defence, but Courts are encouraged to make the best out of an inelegant ground of appeal in the interest of justice, particularly where no one is left in doubt as to the Particulars on which it is founded – Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205.

In this case, it is clear from the said Ground 1 read in conjunction with its Particulars No. 5 that contrary to the Respondent’s argument, there is a correlation between Ground 1 of the Grounds of Appeal and the Issue 2 distilled therefrom, therefore, its objections are overruled.

But in case it is wrong, which it is, the Respondent submitted in its Brief that a sole Issue calls for Determination in this appeal, that is: Whether the finding of the Court below that the Prosecution proved its case beyond reasonable doubt against the Appellant beyond reasonable doubt can be faulted or assailed.

​The Appellant sought the indulgence of this Court “to argue both two Issues together as they are interrelated”, and based on the arguments canvassed by the Parties, it is my view that the issue in this appeal is whether the Appellant is entitled to the said defence of self-defence.

The Prosecution called six witnesses. Sgt. Ahmad Abubakar, PW1 is an Exhibit Keeper, and Exhibits, including a cutlass, was admitted in evidence through him as Exhibit A. Ibrahim Isa, who is related to the Appellant, testified as PW2, and his narration of events, are as follows: “On 4/1/2012 I came out around 9am to buy soap.

I met Hassan the deceased person at the Accused person’s shop and the deceased gave the Accused N20.00 in order to spend N10.00 and the Accused held the N20.00 and refused to give the deceased and as a result a scuffle ensured (sic) between them and I was trying to settle them and they refused to stop and I then went away. The Accused person at that juncture ran to his house took a cutlass and cut the deceased with it. Before I came out of my house, I was told that the deceased was taken by the Police and the Police later came back and arrest the Accused.

When Lawali, the Accused, took the cutlass he used it to cut the deceased person and I saw when it happened.

PW3, Nura Rabiu, testified that he was not present when the incident occurred but as he was passing, he saw the deceased “lying down on the ground”, and he assisted in taking him to the hospital. He also said he saw the Appellant at the scene of the crime. Alhaji Qasimi Adamu, the Appellant’s neighbour, who testified as PW4, stated as follows: “On 4/1/2012, around 9 0′ clock in the morning I was coming out of my house… I was not there when the incident took place. When the incident happened, a girl ran to me and informed me that I should come immediately because the Accused killed Hassan.

I then ran to the scene of the incident and I saw the Accused holding a cutlass in his hand and I heard him saying I have finished with this one and remain another, at that time Hassan was laying down in a pool of blood and I – – confronted the Accused and the Accused threw the cutlass on the roof of his shop and after that I grabbed the Accused and I put him in the car and took him to the Police Station.

​PW5, PC Saidu Abdullahi, who was at Divisional Crime Branch, Sabon Birnin Police Division, merely narrated how he transferred the case to the C.I.D. Office, for further investigation after it was assigned to him.

PW6, Sgt. Danjuma Giwa, is the Investigating Police Officer at the Homicide Section of the C.I.D. Office, who recorded the Appellant’s Statements to the Police, and when the Prosecution sought to tender it in evidence, the Defence Counsel objected on the ground that – “it is not the Statement made by the Accused at the C.I.D. Office”.

However, the trial Court overruled his Objection because it did not touch on the voluntariness of the Statement, and the Appellant’s Statement to the Police recorded by PW6 in Hausa Language and its English version were admitted into evidence through the said PW6 as Exhibits E & E1.

In Exhibit E1, the said English version, the Appellant stated as follows: On Wednesday, 4/01/2012 at about 0900hrs, I was in my shop where I sell cosmetics at Gatawa Village. One Hassan Ismail came to my shop and gave me the sum of N50.00 and asked me to give him a cigarette of N20.00. I gave him the cigarette and refused to give him change of N30.00 because he owes me the sum of N100.00. I told him that I will not give him the change, Hassan said I’m telling lies. He beat me on my mouth. I pick my cutlass and inflicted serious injury on his leg. He felt (sic) down blood was rushing out.

One Alhaji Agada Namanu took him to the hospital where he died. In fact, I’m the cause of Hassan Ismail death. The time I killed him the following people were present: Nura Ismaila, Ala Isa and Luba Mamman, they all witness what happened.”

The Appellant, who did not call any witness, testified as DW1. He said: “What happened is that myself and Hassan Ismail is that he was my customer he used to come to my shop to buy things. One Wednesday in the morning Hassan came to my shop and requested me to give him battery on credit so that he would pay me the next day and I gave him the battery. The next day Hassan Ismail came to my shop and requested me to give him Animal Feed and he gave me the money for the Animal Feed and said he would pay the money for the battery.

At that juncture, I collected back the Animal Feed and told him I would not agree and as a result of that a scuffle ensured (sic) between us and Hassan Ismail abused me and I also abused him and he took a stick from the veranda of my shop and hit me with it on my head and I sustained injuries on my head and I took a cutlass from Hassan Ismail because Hassan was already holding the stick. After I collected the cutlass from Hassan, we started struggling with Hassan in order to collect the cutlass from me, and at that time one Nasiru Agada was present.

When Hassan hold (sic) the cutlass, we started struggling and I was able to hold the cutlass and at that juncture I saw blood coming out of Hassan’s hands and legs and at that juncture I closed my shop and we took Hassan to the hospital.

In his judgment delivered on 19/12/2014, the learned trial Judge, Dogon Daji, J., assessed the evidence of the said witnesses, and noted that: Contrary to the assertion – – that PW2 was present when the Accused cut the deceased with a knife, the evidence of PW2 is not a direct evidence of the occurrence of the offence charged. What PW2 witness (sic) was the beginning of the scuffle between the Accused and deceased. PW2 did not state that he witnessed the actual attack with a cutlass by the Accused.

It is also to be noted that the evidence of PW3 and PW4 are also not direct evidence of the actual attack by the Accused on the deceased. PW3 specifically stated that he was not at the scene when the incident happened while PW4 stated that he was called by a girl while he was at home that morning - What PW4 said he witnessed was the Accused holding a cutlass and making outbursts that he had finished with this one and remain another pointing at the deceased, who was laying (sic) in a pool of blood.

He evaluated the evidence vis-a-vis the ingredients of the offence, and found the death of the deceased, proved. On the second ingredient that his death was caused by the Appellant, he concluded as follows: It is the view of this Court that looking at Exhibit E and E1 – – in which the Accused unequivocally and without mincing words admitted to have hit the deceased with a cutlass and as a result of which he sustained serious injury, which led to his death on the same date, is confessional in nature and it was properly admitted in evidence by this Court.

It is to be noted that if the evidence of PW2, PW3 and PW4 and Exhibit A are considered, one will come to the conclusion that the confession of the Accused – Exhibits E and E1 is, indeed, true. The Accused – – when he testified as DW1 had tried to retract or resile from the Confessional Statement - Exhibits E and E1.

The Accused – had tried to convince this Court that it was while he was trying to collect the cutlass from the deceased that the deceased injured himself, which injury led to his death – – – The action of the Accused of retracting from his confession as contained in Exhibit ‘E’ and ‘E1’ cannot in any way avail him. The action of the Accused is an afterthought. It is just like the action of a drowning man who can hold at anything, which cannot assist him.

It is the view of this Court that the Prosecution has by Exhibits E & E1, Exhibit A and the evidence of PW2 & PW4 proved the second ingredient of the offence.

​On the third ingredient – whether his act or omission that caused the death of the deceased was intentional or with the knowledge that death or grievous bodily was its probable consequence, he held that it can be inferred from Exhibits E & E1, the cutlass used, and evidence of PW2 and PW4 that the Appellant had intended to kill the deceased.

Thereafter, he observed as follows on the defence of self-defence: The Accused in his evidence had tried to raise the defence of self-defence where he stated that it was while he was struggling with the deceased in order to collect the cutlass from him to prevent him from using the cutlass on him that the deceased injured himself, which resulted to his death – – The evidence of the Accused is an afterthought and cannot be believed by this Court in the face of Exhibits E & E1 and evidence of PW2 & PW4.

In Exhibit E & E1 – – he stated that the deceased beat him on the mouth and as a result of that he took his cutlass and inflict serious injuries on the leg of the deceased. To my mind, the action of the Accused of hitting the deceased with a cutlass cannot be said to be proportional to the act of the deceased of beating the Accused with bare hands on his mouth …….. The act of the Accused of hitting the deceased with a cutlass cannot be said to be reasonable in the circumstances of this case.

The Accused in his Confessional Statement stated that the deceased beat him on the mouth and as a result of that he took a cutlass and inflict serious injuries on the leg of the deceased and blood was gushing out.

It is also the view of this Court that a mere beating by hands on the mouth cannot be said to cause reasonable apprehension of death or grievous harm – – – It is the view of this Court that in the circumstances of this case, the Accused is not entitled to the defence of self-defence – The Prosecution in this case have proved all the essential ingredients of the offence of Culpable Homicide Punishable with Death.

The Court of Appeal, in its judgment delivered on 6/10/2017, held that: The trial Court was not in doubt that the Confessional Statement, Exhibits E & E1, was sufficient of itself to ground a conviction. Moreover, there were other pieces of evidence outside that Statement that beefed out the weight of evidence against the Appellant.

In these circumstances, it is difficult to fault the lower Court’s finding of guilt – – The lower Court was on firm ground in reaching its conclusion that indeed, the Prosecution had proved its case beyond reasonable doubt without any exculpating circumstances to rock that ground. The Appellant’s Confessional Statement also does not seem to contravene the provisions of the Criminal Procedure as it meets the test of admissibility and without more, is sufficient to ground a conviction for the offence.

The requirement of proof beyond reasonable doubt in criminal cases was satisfied by the Prosecution – – Even the Appellant predicated his testimony in open Court on self-defence where he stated that it was while he was struggling with the deceased in order to collect the cutlass from him to prevent him from using it on him that the deceased was injured, which resulted in his death.

Any offence, including culpable homicide punishable with death, may be proved by circumstantial evidence – - The circumstantial evidence in [this] case leaves no room for reasonable doubt that Appellant was the one that caused the injury to the deceased, which resulted in the death of the latter. The Prosecution proved beyond reasonable doubt that the Appellant caused the death of the deceased.

The Court of Appeal affirmed the trial Court’s findings up to this point, however, it parted ways with the trial Court on the third ingredient – “whether death was a probable and not only a likely consequence of the injury inflicted by the Appellant on the thigh of the deceased considering the nature of the weapon used and part of the deceased’s body injured”

It said the conviction for the offence could be upheld if it is satisfied: That on the evidence, Appellant “knew or had reason to know that death would be the probable and not only a likely consequence” of the injury on the thigh of the deceased with a cutlass, or (2), the Appellant, by injuring the deceased on his thigh, “knew or had reason to believe that death would be the probable and not only a likely consequence” of that bodily injury.

The Court of Appeal then concluded as follows in its own judgment: The proper verdict would have been that the injury inflicted on the deceased by the Appellant with a cutlass on the thigh, was only “likely” to cause death, as defined by Section 19 of the Penal Code, in that any cut by a cutlass aimed at the leg or thigh “would cause no surprise to a reasonable man” if death resulted. The injury caused by the Appellant on the thigh of the deceased, as distinguished from a cut, say, on the head or the abdomen would not “probably” cause death.

In other words, I do not think that death would be considered by a reasonable man to be the natural and normal effect of the Appellant’s act. Accordingly, the conviction of the Appellant cannot also be sustained under Section 221 of the Penal Code.

For these reasons, I find the Accused guilty of the culpable homicide of Hassan (deceased) but find him guilty of culpable homicide NOT punishable with death and convict him under Section 224 of the Penal Code. l, accordingly, allow the appeal in part to the extent of setting aside the finding of culpable homicide punishable by death and sentence of death imposed in the judgment of the lower Court delivered on 19/12/2014.

In the stead thereof, a finding of culpable homicide NOT punishable with death under Section 220 and punishable under Section 222 (4) of the Penal Code is hereby substituted – – The appeal partly succeeds – – Appellant is sentenced to 10-years imprisonment with hard labour to take effect from 19/12/2014.

The Appellant picked holes in the evidence of Prosecution witnesses, and argued that most of the evidence that the trial Court relied on was either hearsay that is inadmissible, or at best circumstantial evidence; that he provided adequate explanation in his evidence, which did not contradict Exhibits E and E1, but elaborated on it; that the said Exhibits shows that there were yawning gaps in the facts contained therein, which his testimony filled up; and that the circumstantial evidence did not eliminate the possibility that he defended himself against the deceased, as can be seen from Exhibits E & E1 and his evidence in chief, which is an elaboration of the said plea of self-defence that he raised.

He conceded that he did not raise the issue of self-defence at the Court below, and so, it did not give any specific decision on the point. But argued that it ought to have considered the question of whether the said plea was rightly or wrongly rejected, which it had a duty to do, citing Mobil Oil (Nig.) Ltd. V. F.B.I.R. (1977) LPELR-24896(SC); that the trial Court wrongly appraised his plea of self-defence, and this Court is entitled to examine the evidence and make its own assessment, citing Onuchukwu V.

State (1998) 4 SC 49; that where the trial Court failed to make proper use of seeing and hearing the witnesses at the trial and took an erroneous view of the evidence adduced, this Court is entitled to interfere with the trial Court’s findings, citing Oguonzee V. State (1998) 4 SC 110, Kwaghshir V. State (1995) 3 NWLR (Pt. 386) 651; and that: From the evidence borne out of the Records, he had no reasonable mode of escape. He was in his shop and the struggle was protracted. Even PW2 got tired of separating the fight and left the pair to slug it out.

It was apparent that it was impossible for him to withdraw from the fight without suffering further hurt from the deceased, who had hit him with a weapon, during the struggle between them. There was, therefore, a necessity on his part to injure the deceased in the cause of defending himself.

He also citedUwaekweghinya V. State (2005) 3-4 SC 29, and submitted that there was no other way of saving himself from death or grievous bodily harm other than using such force, as he did; that it is clear in the circumstances of this case that the deceased intended grievous bodily harm to him and so, he had to defend himself; and that it was in the cause of defending himself that the deceased sustained fatal injuries.

​It is the Respondent’s contention that the Prosecution adduced credible eye witness evidence, evidence of confessional statement and ample circumstantial evidence to prove the offence of culpable homicide not punishable with death against the Appellant beyond reasonable doubt; that a defence of self-defence did not avail the Appellant; and that the Court of Appeal rightly convicted him for the said lesser offence.

It cited Jeremiah V. State (2012) 14 NWLR (Pt. 1320) 248, Nkpuma V. State (1993) 9 NWLR (Pt. 317) 374 and Uwagboe V.

State (2008) 12 NWLR (Pt.1102) 621) on the issue of self-defence, and argued that much as the Appellant sought to extricate himself, the contradictions in the defence that he put forward is apparent; that he claims self-defence, and yet, also claims that the deceased injured himself, which is preposterous; that the plea is an admission that his actus reus led to the death of the deceased but he had no requisite mens rea to kill him the deceased, therefore, for him to turn around and claim that the deceased injured himself and died as a result “entirely negates and rubbishes the plea of self-defence”.

​It submitted, citing Archibong V. State (2006) 14 NWLR (Pt. 1000) 349 and Ayedun V. State (2015) 10 NCC 527; that the evidence of PW2, PW3, PW4 and Exhibits A, C, E & E1 put the Appellant on the spot and showed that he and no one else killed the deceased, who was in Appellant’s shop, and both of them had a fight; and eye witnesses saw him holding a cutlass, while the deceased laid on the ground in a pool of his own blood.

Now, there are three ways for the Prosecution to prove its case – direct evidence, circumstantial evidence or confession.

Direct evidence establishes a fact without making any inference to connect the evidence to the fact. In effect, direct evidence proves or disproves a fact directly.

Circumstantial evidence, on the other hand, requires an inference to be made to establish a fact. “Inference” is “a conclusion reached by considering other facts and deducing a logical consequence from them” – Black’s Law Dictionary, 9th Ed. In other words, circumstantial evidence does not point directly to a fact. An inference must be made that would link the circumstantial evidence to the fact that the Party using it is trying to prove, which can make it a lot more powerful than direct evidence – see Lori V.

State (1980) NSCC (Vol. 12) 269, wherein Nnamani, JSC, stated: Circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances, which by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. But the circumstantial evidence sufficient to support a conviction – – must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the Prisoner, and no one else, is the murderer.

The facts must be incompatible with innocence of the Accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.

A confession is an admission made by a person charged with a crime, stating or suggesting the inference that he committed that crime, and it is settled that a confessional statement, which is sufficient to ground a conviction, is the most effective compass of navigating culpability of an Accused on the part he played in the commission of the offence. See Obidiozo & Ors V. State (1987) LPELR-2170(SC), and Solola V.

State (2005) 11 NWLR (Pt. 937) 460, wherein Tobi, JSC, aptly stated that: “A confessional statement is the best evidence – – It is a statement of admission of guilt by the Accused and the Court must admit it in evidence, unless it is contested – – If a confessional statement is contested at the trial, our procedural law requires that the trial Court should conduct a trial within a trial for purposes of determining the admissibility or otherwise of the statement.

Once a confessional statement is admitted, the Prosecution need not prove the case against the Accused beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the Accused.” In this case, the trial Court did not need to conduct a trial-within-trial, as the Appellant did not challenge the admissibility of Exhibits E & E1, on the ground of involuntariness. He merely retracted his confession, and it is well settled that a confessional statement, if made voluntarily, even if subsequently retracted, is sufficient to sustain a conviction - see Solola V.

State (supra), Nwaeze V. State (1996) 2 NWLR (Pt. 428) 1.

​In this case, the trial Court found as a fact that Exhibits E & E1 are confessional statements made by the Appellant. The Court of Appeal, in affirming that finding, held that his Confessional Statements meets “the test of admissibility, and without more, is sufficient to ground a conviction for the offence”. These are concurrent findings of the two lower Courts and I see no reason whatsoever to hold to the contrary.

The long and short of it is that the Confessional Statements made by the Appellant to the Police is the best form of evidence against him, and the lower Courts were right to attach probative value to them. The truth of the matter is that the Appellant placed himself at the scene of the crime with a cutlass in his hand and the deceased lying on the ground in a pool of blood, and this is a clear picture arising from what he narrated in Exhibits E & E1, and his evidence in Court as DW1.

​PW2, PW3 & PW4 may not have been there when the Appellant actually cut the deceased on the thigh with a cutlass. But in my view, what they saw and witnessed at the scene of the crime enhances the picture that the Appellant painted himself. PW2 was there when the fight broke out between the Appellant and the deceased over N20.00.

PW3, who was passing by, saw the deceased lying down on the ground and he assisted in taking the deceased to the hospital. He said he did not see the Appellant with a cutlass but he saw him at the scene.

PW4, who was told by a girl to “come immediately” because the Appellant had killed the deceased, ran to the scene where he saw the Appellant holding a cutlass with the deceased lying in a pool of blood. The cutlass that the Appellant was holding is in evidence as Exhibit A.

There can be no better illustration of circumstantial evidence and confession that leads to the irresistible conclusion that the Appellant, and no one else, caused the death of the deceased. The Appellant has not provided any reason or justification for this Court to interfere with or disturb the concurrent findings of the trial Court and the Court of Appeal that he, and no one else, caused the death of the deceased.

​As the Respondent pointed out, the Appellant has not appealed against the Court of Appeal’s decision to substitute his conviction for culpable homicide punishable with death and death sentence passed on him by the trial Court with a conviction for culpable homicide NOT punishable with death and a sentence of 10-years imprisonment. Thus, the conviction and sentence are binding and subsisting against him - see Alakija V. Abdulai (1998) 6 NWLR (Pt. 552) 1 at 24, which it cited.

Be that as it may, it is clear from his arguments/submissions that the Appellant’s main concern in this appeal is the issue of self-defence. He conceded that he did not raise the issue at the Court of Appeal and the only comment made thereon by the Court of Appeal is as follows: The requirement of proof beyond reasonable doubt – – was satisfied by the Prosecution.

Even the Appellant predicated his testimony in open Court on self-defence where he stated that it was while he was struggling with the deceased in order to collect the cutlass from him to prevent him from using it on him that the deceased was injured, which resulted in his death.

​The Appellant contends that it ought to have considered the question of whether his plea was rightly or wrongly rejected by the trial Court. I agree. He may not have raised the said issue at the Court of Appeal, but it is trite law that an appellate Court will consider all the defences available to the Appellant, whether it is raised in the appeal or not, provided that there are facts established in the lower Court capable of being considered as adequate proof of any of the defences – see Ojo V. State (1973) LPELR-2385(SC), Bello V. FRN (2018) LPELR-44465(SC).

It is well settled that the only error made by a Court that will lead to a reversal of its judgment, is an error that occasioned a miscarriage of justice or substantially affected its decision - see Ajuwon V. Akanni & Ors (1993) 9 NWLR (Pt. 316) 182. The category of the error in this case, can only be determined after resolving the said issue of self-defence.

Now, a successful plea of self-defence, completely exculpates an Accused from criminal liability- see Uwaekweghinya V. State (supra), (2005) 9 NWLR (Pt. 930) 227, wherein this Court explained as follows: The purport of self-defence in law is to negative the existence of an offence so that where a person kills another in self-defence, the killing, unlike in provocation as a defence, does not amount to an offence but total exoneration of the Accused. Thus, the Accused is discharged and acquitted.

But to benefit from the exoneration that comes with a successful plea of self-defence, an Accused must prove the ingredients of the defence - see Kwaghshir V. State (supra), Musa V. State (2009) 7 SCNJ 329 andAfosi V. State (2013) 13 NWLR (Pt. 1371) 329, wherein this Court stated: Ordinarily, self-defence that will have any impact on a case to favour an Accused Person must be such that the action taken by the Accused Person was unavoidable.

The following are the ingredients of self-defence: – (a) The Accused must be free from fault in bringing about the encounter; (b) There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity; (c) There must be no safe or reasonable mode of escape by retreat; and (d) There must have been a necessity for taking life In order to sustain the defence of self-defence, all the above ingredients must exist and be established. See also Uwaekweghinya V.

State (supra), where this Court also held: Before the defence is available, it must be shown by the person relying upon it that he reasonably believed that there was no other way of saving himself from death or grievous bodily harm other than by using such force as he did and that he tried to disengage from the event, which led to the application of such force or in this instant case, the use of cutlass – – For an Accused to avail himself of the defence of self-defence, he must show – – that he took reasonable steps to disengage from the fight or make some physical withdrawal.

But issue of disengagement depends on the peculiar circumstances of each case. Sometimes it may be possible to run away from an unwarranted attack, at times it may be impossible to withdraw. In other words, to avail himself of the said defence, the Appellant must show that his life was so much endangered by the act of the deceased that he had no other option but to kill the deceased and save his life; that he did not want to fight; and that he was prepared to withdraw - see Baridam V. State (1994) 1 NWLR (Pt. 320) 250.

I am not convinced that he proved any of the ingredients of the defence of self-defence.

​First off, the Appellant cannot claim that he was free from fault. In Exhibits E & E1, he stated that the fight ensued because he refused to give the deceased change of N30.00 after the deceased gave him N50.00 to buy cigarette of N20.00. In his testimony as DW1, he said the fight ensued after he took back Animal Feed the deceased paid for because the deceased had not paid for battery he collected on credit.

For whatever reason the fight ensued, whether N30.00 change that he refused to give the deceased or taking back the Animal Feed, the Appellant instigated the fight between them, which proved fatal.

It is clear also from the evidence before the Court that he did not take any measures to retreat, being in his store. He failed to seize the ample opportunity presented to withdraw from the impending fight, and did not even heed the entreaties made by PW2 to stop fighting.

​In his defence as DW1, the Appellant alleged that the deceased took a stick from the veranda of his shop and hit him on the head and he “sustained injuries” on his head. Even if that is true, the act of the deceased in hitting the Appellant on the head with a stick could not have presented a state of impending peril to his life to warrant the use of a cutlass to cut the deceased. The guiding principles are necessity and proportion - the force must have been necessary and it must have been reasonable - see Adeyeye V.

State (2013) 11 NWLR (Pt. 1364) 47, wherein this Court per Ogunbiyi, JSC, stated the right questions to ask: The two questions, which ought to be posed, and therefore, answered before the trial Court, were: – (1) on the evidence, was the defence of self-defence necessary? (2) Was the injury inflicted proportionate to the threat offered, or was it excessive? If, however, the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such self-defence, then the defence cannot avail the Accused. See R. V. Onyeamaizu (1958) NRNLR 93.

In this case, the Appellant’s action of inflicting injury on the deceased in reaction to being hit with a stick cannot be deemed proportionate to the threat he is alleged to have been faced with. I am not convinced that the use of a cutlass was a necessary and proportionate response.

​It is also difficult to imagine the scenario painted by the Appellant when he said in his defence as DW1 that it was after the deceased had hit him with the stick and he sustained injuries on his head that he took the cutlass from the deceased, who was “already holding the stick”. If, the deceased had the cutlass, why would he use a stick to attack him?

What is more, throughout the trial, the Appellant did not show any evidence of the injuries he allegedly sustained on his head when the deceased hit him on the head with a stick, so as to enable the Court evaluate the gravity of injury to warrant his response. The Respondent cited Bassey V. Queen (1963) 3 NSCC 227, wherein De Lestang, FJ, held: The Appellant received no injuries and was unable to show any on his person.

In these circumstances we think that the assault on the Appellant was not such as to cause reasonable apprehension of death or grievous harm and the force used by the Appellant was excessive – – The defence of self-defence was consequently rightly rejected.

​In this case, it is clear to me that the Appellant’s plea of self-defence is an ill-crafted afterthought to escape culpability. He did not establish the appropriate circumstances in which the defence would avail him. Thus, the fact that the Court of Appeal did not address the Issue in its judgment is of no moment in this appeal; it did not affect its decision.

This appeal lacks merit, it fails and it is, therefore, dismissed.

UWANI MUSA ABBA AJI, J.S.C.: I read before now, the draft judgment delivered by my learned brother, Amina Adamu Augie, JSC, wherein in dismissing the appeal, he held that “the Appellant’s plea of self-defence is an ill-crafted afterthought to escape culpability. He did not establish the appropriate circumstances in which the defence would avail him.”

I concur to my learned brother’s decision that this appeal lacks merit. I affirm the judgment of the lower Court.

MOHAMMED LAWAL GARBA, J.S.C.: A draft of the lead judgment written by my learned brother A. A. Augie, JSC, in this appeal was read by me and I agree with all the views expressed on the two (2) issues submitted by the Appellant for decision by the Court as well as the conclusion that the appeal is wanting in merit, from the case presented before the trial Court.

I would like to emphasize that by the defence of self-defence strenuously relied on by the Appellant and argued in this appeal was/is a tacit admission of the responsibility for the death of the deceased by the Appellant.

In order for the defence to avail him, the law requires the Appellant, by credible evidence, to show and satisfy the trial Court that at the material time, his life was put in real and grave danger by the act/s of the deceased such that the only reasonable option left for him to save his life was to kill the deceased or cause him such bodily in injury to prevent the deceased from killing him.

There must be cogent evidence from the accused person to show that he did not take undue advantage by use of unnecessarily excessive force that is clearly disproportionate to that used on him by the deceased and that he did not want to fight, but was prepared to withdraw, for the defence, as a complete defence, to avail him. The defence is predicated on the natural principle of kill or be killed.

For a successful plea of the defence of self-defence by an accused person charged with the offence of culpable homicide punishable with death under the Penal Code, (as in the case against the Appellant), or murder under the criminal code, there must be credible evidence to show, among others, that:- 1. That the life of the accused person was actually threatened or endangered by the acts of the deceased; 2. That the only option that was opened and available to him to save his own life, was to use force which was necessary on the deceased; 3.

That the amount of force used on the deceased was proportionate to the threat or danger posed by the acts of the deceased person; 4. That he did not take undue advantage of the deceased person in the process of saving his own life by way of self-defence; 5. That the accused person must show that he did not want to fight and that he was prepared and ready to withdraw from the threat or danger posed to his life by the deceased. See Laoye v. State (1985) 2 NWLR (pt. 10) 832, Stephen v. State (1986) 5 NWLR (pt. 46) 979 at 987, Njoku v. State (1993) 8. K.L.R, 60, Ahmed v. State (1999) 5 SC (pt.

II) 39 at 48, Kwaghshir v. State (1995) LPELR-1726 (SC), Odu v. State (2001) 10 NWLR (pt. 722) 668, Nnamah v. State (2005) 2 NWLR (pt. 929) 147, Apugo v. State (2006) 16 NWLR (pt. 1002) 227, Chukwu v. State (2012) LPELR-9829 (SC), Audu v. State (2003) 7 NWLR (pt. 820) 517. These factors must co-exist for the defence to be available to completely exculpate or exonerate the accused person from or of guilt for the offence charged.

As ably demonstrated in the lead judgment, the Appellant did not adduce credible evidence to show that the defence of self-defence avails him.

I join in dismissing the appeal, for lacking in merit as shown in the lead judgment.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother AUGIE, JSC granted me the privilege of reading in draft, the leading judgment prepared and rendered in this appeal. I am in full agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add. I abide by all consequential orders.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice AMINA ADAMU AUGIE, JSC. I completely agree with the reasoning, conclusion, decisions, and orders therein.

Judgment

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Kaduna State High Court delivered on 27th January, 2020 in Charge No: KDH/KAD/44C/16. The appellant was arraigned before the High Court (hereinafter referred to as the lower Court) on a five count charge of culpable homicide and an attempt to commit suicide punishable under Sections 221 and 231 of the Penal Code Laws of Kaduna State respectively.

The appellant was alleged to have murdered/slaughtered four of his children and he attempted to kill himself on or about the 18th of November, 2015 at Kawo Kaduna. The appellant pleaded not guilty and the prosecution called seven (7) witnesses to prove its case. The appellant testified in his own defence and he also called one witness. It is instructive to note that PW1 is the neighbor of the appellant. PW2 is the son of the appellant. PW3 is the wife of the appellant and the mother of his children including the four deceased. PW4, PW5 and PW6 are police officers.

PW7 is the elder brother of the appellant. After hearing a considered judgment, the learned trial Judge convicted the appellant and sentenced him to death by hanging for the murder of four of his children. Aggrieved by the decision the appellant appealed to this Court vide a notice of appeal filed on 11th of March, 2020. It contain six (6) grounds of appeal. The appellant filed an amended notice of appeal on 20/10/2021, and deemed on 4/11/2021. It contain ten (10) grounds of appeal.

At the hearing of the appeal on 29th of June, 2022 Haliru Garuba of counsel adopted the appellant’s brief of argument filed on 9th November, 2021. He urge the Court to allow the appeal and set aside the judgment of the trial Court. A. Isiyaka of counsel adopted the respondents brief of argument filed on 4/02/21 and deemed on 30/5/22. He urge the Court to dismiss the appeal and affirm the judgment of the trial Court. From the ten (10) grounds of appeal the appellant distilled three issues for determination thus: 1.

Whether the learned trial Judge was right to have relied on Exhibit 3 (1-9) and the evidence of PW3 in convicting and sentencing the appellant to death. 2. Whether the failure and/or omission of the learned trial Judge to consider the clear, consistent and uncontroverted explanation put forward by the appellant did not occasion a miscarriage of justice to the appellant. 3.

Whether having regards to the evidence adduced at trial the learned trial Judge was right to have held that the prosecution led sufficient, cogent, consistent and overwhelming circumstantial evidence that proved beyond reasonable doubt the guilt of the appellant. The respondent on its part formulated two issues for determination, thus: 1. Whether the lower Court was right to have convicted the appellant and sentenced him to death on all the four (4) counts charge based on the circumstantial evidence led by the prosecution. 2.

Whether the lower Court was right to have convicted the appellant on the charge of attempt to commit suicide based on the circumstantial evidence led by the prosecution. After considering the issues submitted by learned counsel, I am of the opinion that the central issue which is germane for consideration in this appeal is thus: “Whether the prosecution has proved its case beyond reasonable doubt to warrant the conviction and sentence of the appellant by the lower Court.” ​It should be noted that all the issues raised by the parties can be subsumed into this all encompassing sole issue.

In a criminal trial the onus rest throughout the proceedings on the prosecution to prove the guilt of the accused beyond all reasonable doubt. This however does not mean proof beyond any shadow of doubt. In order that an accused person be entitled to the benefit of doubt, the doubt must be genuine and reasonable arising from evidence before the Court. See The State v. Aibangbee (1988) 7 SC (Pt. 1) 96.

Where there is any doubt created in the prosecution’s case, it ought to be resolved in favour of the accused. See Mbenu v. The State (1988) 7 SC (Pt. 111) 71 at 87.

The guilt of an accused person may be proved by (a) Confessional Statement (b) Circumstantial evidence or (c) Evidence of eye witness. In this instant case, there is no confessional statement and no evidence of an eye witness. The evidence adduced before the trial Court is circumstantial evidence. PW1 Binta Ubale Abubakar, she is the appellant’s neighbor, they live in the same compound with their houses attached to each other. She told the Court that on 18th November, 2015 at about 5 to 6 am she heard Safiya wife of the appellant (PW3) screaming calling her name to come and assist her.

And when she went and entered their apartment she went straight to the appellants room where the wife was screaming but the appellant refused to open the door and he told her to go back to her apartment after thanking her. Soon after she left she heard a louder voice shouting again and she went back. She told the appellant’s son to forcefully push the door which he did and they rescued the wife. They ran to her apartment. PW1 told the Court that at the time she entered the appellant’s house, there were five children of the appellant including Salim the eldest son.

She called Safiya’s (PW3) mother and they reported the matter at Kawo police station. When the police came the appellant refused to open the door and he told the police to go back to the station he will meet them later as he was preparing his children for his. PW1 said at that time four of his children where in the house while Salim the eldest son was outside.

She said when the uncle of Salim (PW7) went and called the police again, as they came and entered the house they brought out four children of the appellant slaughtered to death, while the appellant had a deep cut and blood all over his body. PW1 further told the Court that the house of the appellant has iron doors and aluminum windows with iron rod. There was no damage to the door and windows, they are all intact. It is not possible for someone to go into the house and there was no any visitor that came to the house that day.

It was only the appellant, his wife and five children in the house that day. PW2 Salim Sale Abubakar is the son of the appellant and PW3 Safiya Abubakar is his mother. He told the Court that on 18th November, 2015 he was in the house with his father (the appellant), his mother (PW3) and four of his younger ones, Abubakar, Salman, Nana, Khadija, and Jibril. He told the Court that PW1 lives in the same compound with them in the next apartment.

He corroborated the evidence of PW1 and he further told the Court that when the appellant did not open the door, he went and called his uncle who came to the house with him. ​The uncle called his father’s name when he did not answer, he went to the window of his room and called his father’s name again where the appellant raised the curtain of the window. The uncle saw the appellant with blood on his body. They went and called the police. The police forced the door open and they entered and brought out four of his younger ones dead.

They were slaughtered by the neck and the appellant had a deep cut on his neck but he was alive. He told the Court that the police took the appellant to the hospital while the four children were buried at Kawo. PW3 Safiya Abubakar, she is the wife of the appellant and the mother of PW2, and the four children who were slaughtered to death. She corroborated the evidence of PW1 and PW2. She told the Court how she was rescued from the appellant’s room. And that when the appellant refused to open the door she told PW2 to go and call his uncle.

Thereafter when she came back to the house she saw the police bringing out her four children all dead with their necks slaughtered. PW4 Sgt Abbas Danladi, he told the Court that on 18/11/2015 he was at the counter at Kawo Police Station when Safiya (PW3) with her mother and her first son Salim (PW2) came to report that her husband (the appellant) Sale Magaji beat her up. The charge room officer (CRO) ordered him to invite, Sale Magaji.

On reaching the house in company of his wife (PW3), her mother and her son (PW2), he ordered Salim (PW2) to knock at the door of the appellants’ house, but the appellant refused to open the door. The son knocked at the door again and the appellant shouted from inside “who are those knocking at my door”? Then PW4 answered, “I am a police officer and that I come to invite you to the station”. The appellant refused to open the door.

The son knocked at the door for the third time and the appellant still refused to open the door, but he shouted that “you people should go I am coming, I am coming.” PW4 said they return to the station where he explained to his Superior officer who sent him. ​PW5 Inspector Yakubu Yarima told the Court that on 18/11/2015 he was on duty when the charge room officer called him and told him that Sgt Abbas (PW4) was sent to invite the appellant but he refused to come. Then his team and the relations of the appellant’s wife went to the house of the appellant.

They met Salim (PW2) son of the appellant outside the house. The door was locked and he knocked at the door several times with no answer. He collected the appellant’s phone number from his son Salim and he called the appellant several times but nobody picked up. After staying for some time, Salim told him that his father will not open the door. He went back to the station and reported to the charge room officer. PW6 is Sgt Oshaba Joseph attached to Anti-Homicide section of the State CID Kaduna, that is the Criminal Investigation and Intelligence Department. As at 2015 he was a Police Corporal.

He told the Court that on 25th of November, 2015 a case of Culpable Homicide was transferred from Kawo Division of the Nigeria Police Force to State CIID Kaduna for investigation. The appellant was at the hospital. The case file was transferred with pictures of the appellant and the four children. And an inscription on the wall in the room. On the 14th December, 2015 the appellant was brought to the office from the hospital. He was assigned to record his statement. He recorded his statement under word of caution.

On 15th December, 2015, the appellant made additional statement under word of caution. The two statements were tendered in evidence by PW6 and marked as exhibits 1 and 2 respectively. The nine pictures were also tendered in evidence and marked as exhibits 3(1 to 9). A brown envelope was admitted in evidence and marked as Exhibit 4. The contents of the brown envelope was admitted in evidence and marked as exhibit 5 and 5A, a knife with blue and white handle with a sign of a star in red ink, with blood stains and a white leather respectively.

PW7 is Ahmed Yusuf, he is elder brother of the appellant. He told the Court that on 18/11/2015 around 13:15pm i.e 1:15pm, he was sitting in his shop at Kawo market. He saw Salim (PW2) in front of his shop and he asked him what is happening. Salim said his father and mother had a quarrel and his mother ran to her father’s house. His mother and her brother reported his father to the police at Kawo Police Station. The police went to the house but his father refused to open the door.

Salim also told him that his junior brothers and sister are still in the house since morning and that they have not eaten anything. PW7 said he called the appellant on phone and the appellant answered the phone, but when he heard his voice, he knew there was something wrong from the way he sounded, because he could not hear what the appellant was saying. PW7 said he got a motor cycle which took him to the appellant’s house together with Salim. He met the door locked. He knock at the door and he heard some sound through the window.

He went to the window and he saw the appellant’s neck with deep cut. He was the window open and he went back to the door and start to hit the door with his leg. Salim then drew back and hit the door with force and the door broke open. He entered the room with Salim and he was looking for the children. They saw the appellant’s daughter on the bed with her neck cut. He looked down beside the bed and he saw one small boy his neck too was cut. He then became weak and went out of the house to the veranda. He was the appellant covered with blood from his neck to leg.

He ran to the police station Kawo and reported at the counter. The police took their vehicle and they went to the appellant’s house. On entering the house with the police he saw one small boy near the children’s room he too his neck was cut. When he entered the mother’s room he saw one boy on the bed he too his neck was cut. All in all, he saw four children with their neck cut, one girl and the three boys. The police took pictures of the four slain children with the appellant. They were brought out and put in a van. They were taken to Kawo police station with the help of neigbours.

From kawo police station they took the four slain children and the appellant to St. Geralds Hospital. The four children were confirmed dead while the appellant was admitted in the hospital. The corpses of the four slain children were buried at Kawo. In the case of Daniels v.

The State (1991) 8 NWLR (Pt. 212) 713 at 732, the Court held thus: “The appellant is now a condemned prisoner and a charge of murder is established when the prosecution proves the following beyond reasonable doubt: 1. that the deceased died 2. that the death of the deceased has resulted from the act of the appellant 3. that the act of the appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequences” See Ogba v.

The State (1992) NWLR (Pt. 222) 164 at 198 C–D where this Court reiterated the law thus: “These three conditions must co-exist and where one of them is absent or tainted with doubt the charge is not said to be proved. The onus of proof is on the prosecution throughout and does not shift” See Obade v. The State (1991) 6 NWLR (Pt. 198) 435 at 456.

From the foregoing background, I shall now proceed to ascertain how the prosecution has striven to prove the three ingredients of the charge of culpable homicide and attempt to commit suicide, leading to the guilt of the appellant beyond reasonable doubt as to warrant his conviction and sentence to death. (A) That the deceased died. PW2 a senior brother of all the deceased persons told the Court that the Police brought out four of his younger ones dead. They were slaughtered by the neck and his father had a deep cut on his neck but he was alive.

PW3 the mother of the deceased persons told the Court that when she came back to the house she saw the police bringing out her four children all dead with their neck slaughtered. PW7 the elder brother of the appellant and an uncle to the deceased persons, he told the Court that he entered the room with PW2 and he was looking for the children. They saw the appellant’s daughter on the bed with her neck cut. He looked down beside the bed and he saw one small boy, his neck too was cut.

When the Police came on entering the house he saw one small boy near the children’s room and he too his neck was cut, when he entered the mothers room he saw one boy on the bed he too his neck was cut. All in all he saw four children with their neck cut, one girl and three boys. From the testimonies of PW2, PW3 and PW7 it has been established beyond reasonable doubt that the four children, Sadiq Saleh, Jubrin Saleh, Khadiyah Saleh and Salmanu Saleh are dead. They were all slaughtered on the neck leading to their death.

There is no any dispute as to the fact that the death of the diseased persons actually took place. ​(B) That the death of the deceased has resulted from the act of the Appellant. The appellant’s grudge is predicated on the following: 1. Whether the learned trial Judge could rely on Exhibits 3 (1-9) when same did not comply with Section 84 of the Evidence Act 2011. 2. Whether the learned trial Judge was right when he held that the inscription on the wall exhibit 3 (8) was written by the appellant. 3.

Whether the learned trial Judge was right to rely on the evidence of PW3 when PW3 was not a competent and compellable witness for the respondent and 4. Whether the learned trial Judge was right to have held that the prosecution led sufficient, cogent, consistent and overwhelming circumstantial evidence that proved beyond reasonable doubt the guilt of the appellant. A.

The appellant’s counsel submitted that the apex Court and this Court in interpreting Section 84 of the Evidence Act 2011, have made it clear that compliance with the provision of the said Section is mandatory and failure to satisfy same would lead to the evidence being rejected. He referred to the testimony of PW6 who tendered Exhibits 3 (1-9) in evidence at the trial Court.

That he did not give any details of explanation as to the type of camera that was used in taking the photographs nor did he produce a certificate describing the manner in which the pictures were produced as well as the particulars of the camera used in producing them in accordance with Section 84(4) of the Evidence Act, 2011. Learned counsel relied on the following cases to buttress his argument. Emzor Pharmaceutical Ind. Ltd. v. Geencaaf Ventures Ltd & Anor. (2021) LPELR-54695; Davou v. C. O. P Plateau State (2019) LPELR–47040.

The respondent’s counsel submitted that exhibits 3 (1-9) only corroborates the already established evidence of the prosecution by PW1 to PW7. It only adds more weight to the evidence. However, there is no dispute in the fact that compliance with the provision of Section 84 of the Act is Mandatory. See the following cases: Dickson v. Sylva & Ors (2013) All FWLR (Pt. 676) 392; U.B.N Plc v. Agbontean & Anor. (2018) LPELR–44160 (CA), Ekiti State INEC & Ors v. PDP & Ors. (2013) LPELR–20411 (CA).

In this instant case, Exhibits 3 (1–9) were relied upon by the learned trial Judge to further confirm the fact that the deceased person (children) were slaughtered by the throat to death. In other words, it confirm the fact that the deceased children of the appellant died. This fact was already established by the evidence of PW2, PW3 and PW7. There is no dispute in the fact that the four children died.

In his judgment, the learned trial Judge held thus: “It is instructive to note here, that it is the further evidence of PW1, PW2, PW3 and PW7 that the four deceased children of the defendant namely Sadiq Sale, Jibrin Saleh, Khadija Sale and Salmanu Saleh were all slaughtered by the throat to death, while the defendant had a deep cut on his throat and blood all over his body.

These facts were confirmed by exhibits 3 (1-9) which are copies of nine (9) pictures the first two pictures showing the accused person in white caftan with blood stain and a deep cut on his throat and the next four pictures exhibits 3 (3 – 6) showing each of the four children of the defendant slain and one picture showing the four slain children together, exhibit 3(7), while two pictures exhibit 3(8-9) showing inscription on the wall”. See pages 115 and 116 of the record of appeal.

In view of the above excerpts of the judgment, I am in agreement with the submission of the respondent’s counsel that even if exhibits 3 (1-9) are rejected it does not affect the established evidence that the four children died. ​Furthermore I am also in agreement with the decision of this Court in the case of Zenith Bank Plc v. NACOIL Inter’l Ltd (Unreported) CA/L/593/2015, therein this Court allowed the appeal and held that since Section 84 applies to statements produced by a computer there was no evidence that the statement was produced by a computer therefore Section 84 did not apply.

Similarly in this instant case, there is no evidence on record to show that exhibits 3(1 -9) were produced by a computer. They were admitted in evidence without any objection. See page 73 of the record of appeal. B. The appellant’s counsel submitted that the learned trial Judge should not have relied on and place any probative value on exhibit 3 (8) a picture of an inscription on the appellant’s room which reads: “This is the destiny of my children and I.

May Allah accept our bodies and put us in paradise Amen” ​The appellant’s counsel referred to Sections 68 and 72 of the Evidence Act and submitted that the act recognizes two ways of proving the identity of a disputed handwriting. The first is by calling a witness who is an expert as to identity of handwriting while the second is by calling a witness who is acquainted with the handwriting of the person whom it is supposed to be written. He cited the case of Bonnie & Anor v. Agi & Ors (2013) LPELR–21847.

Learned counsel submitted that PW6 tendered exhibit 3(8) without linking the said inscription with the appellant. He did not give evidence as to the fact that he is a hand writing expert. Without much ado, exhibit 3(8) was tendered and admitted in evidence without any objection. The appellant did not dispute the fact that it was his handwriting. The Court can only call in aid of Section 68 and 72 of the act where there is a disputed hand writing. In this instant case, there was no any dispute as to the handwriting therefore the said provisions of the act are inapplicable.

In the case of Yongo v. COP (1992) 8 NWLR (Pt. 257) 36 at 57, the Supreme Court held thus: “Although the law permits trial Courts to compare writings or signatures in order to discover their authors, this only arises in a case where the writings and/or signatures are in dispute and therefore in issue. And in such cases proven or acknowledged writings or signatures of the disputants must be before the Court” ​When the said exhibit was sought to be tendered and admitted in evidence against the appellant, he should have instantly refuted or denied the hand writing, but he never did.

In such circumstance it would amount admission by conduct. The denial at this stage is too late in the day. C. The appellant’s counsel submitted that in a criminal trial, the spouse of an accused person is not a competent and compellable witness for the prosecution, except where the offence the accused is charged with is among those mentioned in Section 182(1) of the Evidence Act, 2011 or upon the application of the accused.

He submitted further that PW3 was not a competent and compellable witness for the respondent and could not therefore testify against him in the absence of an application by him for PW3 to testify in the case. It was wrong for the trial Court to rely on the testimony of PW3.

The respondent’s counsel submitted that by the provision of Section 182(1) of the Evidence Act, 2011 the wife PW3 is a competent and compellable witness for the prosecution and no any application, approval or consent of the husband/appellant is required. ​Section 182 (2) deals with where a husband is charged with an offence other than those offences in Subsection (1), it is then that the application and consent of a person charged is required. It is a misconception to say that in the present case the consent of the husband/appellant is needed.

I am in agreement with the submission of the respondent’s counsel that the appellant’s counsel is indeed misconceived. It is settled that by Section 182(2) of the Evidence Act wife and husband in this context means respectfully the wife and husband of a monogamous marriage and to enjoy the privilege such must be proved. See the case of Okoro v. The State (1998) 12 Sc 134 at 144. There is no dispute in the fact that in this instant case the marriage between the appellant and the wife (PW3) is not a monogamous one rather it is a polygamous marriage. In Adisa v.

State (1991) 1 NWLR (Pt. 168) 490 at 501, this Court held thus: “The wife of a defendant standing criminal trial is a competent witness and could be compellable in certain circumstances under Section 160 of the repealed Evidence Act” See also Elabanjo v. Tijani (1986) 5 NWLR (Pt. 46) 952. D. The appellant’s counsel submitted that from the records before this Court, it shows that the appellant did not make any confessional statement, neither was there any eyewitness who testified that they were present when the deceased four children were killed.

But it was the decision of the learned trial Judge that the respondent led sufficient, cogent consistent and overwhelming circumstantial evidence that proved beyond reasonable doubt the offence of culpable homicide punishable with death under Section 221 of the Penal Code. Learned counsel submitted that it is not in doubt that circumstantial evidence can lead to a criminal conviction. However, there are conditions which must be met before a conviction can be sustained. He cited the following cases to buttress his argument. Thus: Osuoha v. State (2010) 16 NWLR (Pt. 1219) 364; Amaechi v.

State (2016) LPELR–40977. He submitted further that from the above decisions, it is clear that for circumstantial evidence to ground a conviction it must point irresistibly to the guilt of the appellant and it must be devoid of contradictions and inconsistencies. He submitted that the evidence of the respondent’s witnesses particularly, PW1, PW2, PW3 and PW7, are laden with contradictions and inconsistencies on material facts. Especially, their testimonies as to how they found the bodies of the deceased children.

Without much ado, I must correct the impression that, PW1 and PW3 never testified as to how they found the bodies of the deceased children. It was PW2 and PW7 that testified as to how the deceased four children were found in the house. It should also be noted that witnesses of truth are not expected to give evidence verbatim in the same manner. In Esangbedo v.

The State (1989) 7 SC (Pt. 1) 36 at 63 para’s 25-30 Oputa JSC (OBM) stated thus: “As a matter of fact, when witnesses of one incident reproduce the same or uniform account of that incident, the danger is that their evidence has been tailored, tutored and doctored. In actual life, there is bound to be minor variations in the account of truthful witnesses. But when witnesses contradict one another on material particulars, then they should not be believed.

“(contradiction)” is the latin version of a to say the exact opposite”. ​Throughout the evidence of PW1 to PW7 there is no iota of contradiction which can be so described as material contradiction. The appellant’s counsel strenuously submitted on the issue of contradiction which I believe is mere ranting. It cannot be supported by the totality of the evidence on record.

It is well settled that where the circumstances of the commission of an offence are positive, direct, and unequivocal and irresistibly lead to the inference that it is the accused that committed the crime such inference ought to be drawn. See Shazali v. The State (1988) 12 SC (Pt. 11) 58. In other words, evidence which is positive, irresistible and leaves no room for other explanations beyond pointing at the accused person’s guilt is sufficient to ground conviction. See Mbenu v. The State (1988) 7 SC (Pt. 111) 71 at 84; Adepeju v. The State (1998) 7 SC (Pt. 1) 117 at 128; Nasiru v.

The State (1999) 1 SC 1 at 14; Ahmed v. The State (1999) 5 SC (Pt. 11) 398. Circumstantial evidence is very often the best evidence.

It is said to be evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics which lead to a finding with such degree of certainty that the appellant killed the deceased. ​At this stage, it is apt to look at the findings of the learned trial Judge wherein he stated thus: “In his instant case, there is credible, consistent and overwhelming circumstantial evidence that on the said 18/11/15 in the early hours of the morning between 5 – 6 am after PW1 and PW2 had forced the door to the defendant’s bedroom open and rescued PW3 who was shouting for rescue from the hands of the defendant to the apartment of PW1, the defendant locked up the main gate to the apartment which is an iron gate with the four children of the defendant namely Sadiq, Jibrin, Khadija and Salmanu sleeping therein.

There is also consistent, credible and overwhelming circumstantial evidence that pursuant to the complaint of PW3 and her mother at the Kawo Police Station, the police came twice to invite the defendant to the station, knocked at the defendant’s door but the defendant refused to open the door and said “he was preparing his children for school.” This further confirms that the four children of the defendant were in the house locked up by the defendant that when the police came for the second time to invite the defendant to the station, the defendant still refused to open the door to the house and said “the police should go, he will come and meet them at the police station.” There is consistent evidence of PW1, PW2, PW3, PW7 and even DW1 that the security fittings in the defendants house were intact and not damaged.

Thus the defendant here was the last person to be in the company of the four innocent children.” See pages 121-122 of the record of appeal.

It is also the findings of the learned trial Judge that: “It is therefore my considered view that the defendant was the last person to be in company of the four deceased children and circumstantial evidence outlined above is consistent, credible and overwhelming coupled with the way and manner the four deceased children of the defendant died i.e all with cut on their necks as well as the cut on the neck of the defendant with blood all over his body as revealed in exhibits 3(1-7) together with the inscription on the wall in the defendant’s room as revealed in exhibits 3(8&9) and the knife with blood stain recovered in the defendant’s bathroom under the WC admitted as exhibit 5A has strengthened the prosecution’s cogent and consistent circumstantial evidence which points to one irresistible conclusion that the defendant here is the murderer of the four deceased children.

It is therefore the duty of the defendant here to give an explanation relating to how the four deceased children met their death. This the defendant has not been able to do in his defence in respect of counts 1-4 of the charge sheet.

Consequently, I find and hold in agreement with the prosecution’s counsel that the prosecution has led sufficient, cogent, consistent overwhelming circumstantial evidence that has proved beyond reasonable doubt the offences of culpable homicide purnishable with death under Section 221 of the Penal Code Law against the defendant as outlined in counts 1-4 of the charge sheet for causing the death of the following Sadiq Sale, Jibrin Sale, Khadija Sale and Salman Sale (all children by slaughtering then hence there is no room for acquittal).” The above findings of the learned trial Judge is unassailable.

The deceased four children were in the appellant’s house and the appellant locked the house. The appellant refused to open the house when the police came twice to invite him to the police station. The deceased four children were with the appellant but they were never seen alive again until their bodies were recovered from the house. There was no evidence of forced entry into the house hence the iron door was intact and the windows were also intact. There was no damage to either the door or windows.

There is no other rational conclusion one could arrive at other than that the appellant murdered the deceased four children. The possibility of any other person entering the house to commit the offence does not arise. The evidence on record fixed the appellant to the crime with sufficient cogency and which excludes the possibility that someone else had committed the crime.

I am satisfied that the evidence adduced by the prosecution was tested, scrutinized and accepted by the trial Court and that it conclusively pointed to the appellant as the perpetrator of the murder of the deceased four children.

This brings us to the doctrine of “last seen.” It simply means that the law presumes that the person last seen with the deceased bears full responsibility for his or their death, if it turns out that the person last seen with him is dead. See Nweze v. The State (1996) 2 SCNJ 47 AT 61-62 Igho v. The State (1978) 3 SC 87 AT 254; Gabriel v. The State (1989) 5 NWLR (Pt. 122) 457; (1989) 12 SCNJ 33. It must be stressed and this is settled that in view of the said doctrine of last seen, it is the duty of the accused person to give an explanation relating to how the deceased met his or her death.

And in the absence of an explanation by an accused person a trial Court and even an appellate Court will be justified in drawing the inference that the accused person killed the deceased. See Adepeju v. The State (1998) 7 SCNJ 83 and recently Adeniyi v. The State (2001) 5 SCNJ 371 AT 386 and Uguru v. The State (2001) 4 SCNJ 282 AT 293. In his judgment the learned trial Judge stated thus: “It is the evidence of DW1 that on 18/11/15 he went to the mosque for his early morning prayers, and on his return he went straight to his bedroom.

He stated that he first saw Sadiq who came to him and asked about their mother and he told Sadiq to look for the mother in the kitchen. That immediately Sadiq left, then Salim (PW2) came to his room with one Rabiu and another person whom he does not know his name, but he is tall with stick. That they surrounded him and on the instruction of Salim the other boys were beating him with the stick and he fell down and that the next thing he heard his son Sadiq saying in hausa “sun yanka baba” meaning they have slaughtered Baba.

He state that he cannot recollect what happened thereafter until when Alhaji Ahmadu PW7 came and he told PW7 that they have killed me and was rushed to the hospital.

The above defence put forth by the defendant in my view is feeble and cannot serve as a rebuttal of all the cogent, consistent and credible circumstantial evidence led by the prosecution against the defendant in this case.” From the above excerpts of the judgment, it is crystal clear that the contention of the appellant’s counsel that the learned trial Judge failed and/or omitted to consider the explanation put forward by the appellant and which has occasioned a miscarriage of justice to the appellant, does not hold water.

The ipse dixit of the appellant is not sufficient for the trial Court to come to a conclusion that it was one Rabiu and another person with Salim PW2 that committed the offence. The submission of the appellant’s counsel is a clear affront to common sense in view of the evidence before the trial Court. Like in most murder cases the facts are pathetic, traumatic and revealing. In the case of Aiguokhian v.

Edo State (2004) WRN 6 Pats Acholonu JSC stated thus; “What we have here is a case of barefaced murder which the appellant has now concocted a story so bizarre and incredible as a defence that he hopes he could induce belief in such a fairy tale meant for infants.” I am not in doubt that the appellant is only trying his luck to lie himself out of the situation he found himself.

The appellant’s wife PW3, his son PW2, his brother PW7 and of cause his neighbor PW1 cannot all conspire to tell lies against him. ​In conclusion, I hold that this appeal ought to fail as unmeritorious and it is liable to be dismissed because: 1. A prima facie case of culpable homicide punishable with death was established against the appellant as all the ingredients of the offence has been proven through circumstantial evidence. In other words, it has been established beyond reasonable doubt that the four children died and their death resulted from the act of the appellant.

And the act of the appellant was done with the intention of causing the death of his four children having regard to the nature of the weapon used, which is a knife and the part of the body on which they were slaughtered i.e the neck. See Garba v. State (2000) 4 SC 157 at 163.; Adamu v. State (1986) 3 NWLR (Pt. 32) 865 at 876; Bakare v. The State (1987) 1 NWLR (Pt. 52) 579; Buje v. The State (1991) 4 NWLR (Pt. 185) 287 at 300. 2. The appellant was last seen with the deceased four children alive. 3.

Proof beyond reasonable doubt has been established, which is not synonymous with proof beyond any shadow of doubt. The sole issue is resolved against the appellant and the appeal is hereby dismissed for lacking in merit. The judgment of Kaduna State High Court delivered on 27th of January, 2020 is in charge No: KDH/KAD/44C/16 is affirmed.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading in draft form, the judgment just delivered by my learned brother A. M. Talba, JCA. I agree with and adopt as mine the finding and conclusion reached in the leading judgment that this appeal lacks merit. I also dismiss same and affirm the judgment of the lower Court in Charge No. KDH/KAD/44C/2016 delivered on 27/1/2020.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Abubakar Mahmud Talba, JCA, just delivered. I agree with the conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.