Culpable Homicide

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SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This appeal arose to challenge the decision of the Court of Appeal, Ilorin Division, delivered on the 1st of August, 2013. The lower Court affirmed the conviction and sentence of the Appellant for the offence of culpable homicide punishable with death and armed robbery which was earlier given by the trial Court. The judgment of the lower Court is contained at pages 132-168 of the Record of Appeal.

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Judgment

OLUKAYODE ARIWOOLA, J.S.C. (Delivering the Leading Judgment): This is an appeal by the State against the judgment of the Court of Appeal, Kaduna division, Coram: Abba Aji) JCA (as he then was) Aboki, JCA (as he then was) and Abiru, JCA, delivered on 22/5/2015.

The respondent had been tried before the Katsina State High Court, sitting at Dutsin-ma on a sole charge dated 28/12/2005.

The charge reads thus: “That you, Murtala Da’u of Kasai village, Wagini District, Batsari Local Government Area of Katsina State, on or about the 6th day of October 2004 at the same address, committed culpable homicide punishable with death, in that you caused the death of one Lawal Musa by hitting him on the head with an axe with the knowledge that his death would be the probable consequence of your act and thereby committed an offence punishable under Section 221 of the Penal Code.”

​At the trial Court, the respondent pleaded not guilty to the charge and the case proceeded to hearing. The gist of the case is that sometimes on 6/10/2004, the respondent was said to have killed the deceased – Lawal Musa in a forest by hitting him on the head twice with an axe. The respondent was arrested by the police. Thereafter, he made two statements to the police. The first statement was made at Batsari Police Divisional Headquarters wherein the respondent denied killing the deceased.

The second statement was an alleged confessional statement where he admitted he committed the alleged offence.

At the proceedings, the prosecution called six witnesses and tendered four exhibits. In his defence the respondent testified as DWI but he called no other witness, In his oral testimony, the respondent denied that he committed the alleged offence. ​ At the conclusion of the trial and addresses of both counsel, the learned trial Judge found the respondent guilty as charged. He was also convicted.

In pronouncing on the sentence, the Trial Court stated, inter alia, as follows: “I have heard the plea for mitigation made on the convict’s behalf by his counsel and have noted that the convict by his testimony before the Court that he is now 21 years old in an offence committed in 2004, he was indeed 14 years of age at the material time which age by our laws he was not criminally responsible. I have similarly taken into account that the convict by Exhibit 3 was provoked by the victim into such act as an immediate reaction to the hit with a stick by the victim on him.

However, the offence of culpable homicide punishable with death is the highest known to law and should not go unpunished. The accused person through his counsel did not plead any of those mitigating circumstances in his final address before the Court … In the light of the above, and considering that human life was lost which is irreplaceable whose punishment is death, I now sentence you Murtala Da’u to a prison term of 50 (fifty) years with effect from the date of this judgment.”

Being dissatisfied with the judgment led the respondent to appeal to the Court below on six (6) grounds of appeal from which the Court below distilled the following sole issue to determine the appeal.

“Whether the prosecution has proved its case against the appellant beyond reasonable doubt as required by law, and whether the sentence of 50 years imprisonment is justifiable in the circumstance.” ​ Upon consideration of the above-identified issue for determination of the appeal, the Court below, inter alia, found as follows: “The appellant, (that is respondent herein) in his confessional statement raised a defence of provocation as it was the deceased that first hit the appellant with his stick which suddenly provoked the appellant.

This piece of evidence was not debunked by the respondent in any way… The law is that by Section 222 of the Penal Code, culpable homicide is not punishable with death if the offender while deprived of the power of self-control by grave and sudden provocation causes the death of any other person by mistake or accident… The appellant in the circumstance of this case ought to have benefitted from such defence which could have mitigated the offence from culpable homicide punishable with death to that not punishable with death under Section 222 of the Penal Code.” (Bracket supplied) ​ Ordinarily, the Penal Code in Section 222 provides for life sentence.

However, the Court below also found as follows: “The appellant (that is the respondent herein) was, at the time of the commission of the offence a minor, 14 years of age. In passing sentence on the accused, the age of the accused person at the time of the commission is to be taken into consideration.” (Bracket supplied). ​ Upon consideration of the above, the Court below finally found merit in the appeal of the convict and therefore set aside the conviction and sentence of 50 years imprisonment passed on the respondent by the trial Court.

He was accordingly acquitted and discharged in the unanimous decision of the Court below.

The State was aggrieved by the judgment of the Court of Appeal, hence, it appealed to this Court.

The said appeal was heard by this Court on 30/9/2021 upon the Amended Notice of Appeal filed on 10/2/2020 but deemed filed on 8/3/2020 on two (2) Grounds of Appeal. Pursuant to the Rules of this Court, parties filed their respective brief of arguments. The appellant’s brief of argument settled by Kelechi Obi Esq. was filed on 01/9/2016 but was deemed properly filed and served on 19/3/2020. The respondent’s brief of argument filed on 30/9/2016 was equally deemed properly filed and served on 19/3/2020.

In the said appellant’s brief of argument, the following two issues were distilled for the determination of the appeal. Issue No. 1- Whether the Justices of the Court of Appeal was right to have entered a judgment of culpable homicide not punishable with death? (Ground 1). Issue No.2 – Whether the learned Justices of the Court of Appeal had the jurisdiction to release the respondent, despite finding him guilty of culpable homicide not punishable with death? (Ground 2).

In the respondent’s brief of argument filed on 30/9/2016 but deemed properly filed and served on 19/3/2020, which was settled by Obinna Ajoku Esq., the two Issues identified by the appellant in its brief of argument were adopted for the determination of this appeal. ​ In arguing Issue No. 1, learned counsel referred to the judgment of the trial Court as the genesis of the appeal. He also referred to the findings of the Court below at page 144 of the record.

He contended that the appellant proved all the particulars of the offence charged and that there was no basis for the substitution of the lesser offence by the Court below. Therefore, he contended further that the judgment of the Court below was based on wrong principles and the Court acted in error to have mitigated the offence from culpable homicide punishable with death to that not punishable with death.

Learned counsel referred to Sections 135 (3) and 137 of the Evidence Act, 2011 for the provisions as to the standard of proof and the burden of proof in criminal proceedings.

He further referred to the elements of the offence of culpable homicide not punishable with death under Section 222 (1) of the Penal Code. ​ Learned counsel conceded that it is trite law that culpable homicide is not punishable with death if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

He contended that the evidence upon which the Court below found that the defence of provocation availed the respondent was the confessional statement of the respondent. He alluded to the respondent’s said statement but contended that the act of the deceased in hitting the respondent with a stick at his back was not grave or sudden to have provoked the respondent. He submitted that the Court below erred in coming to the conclusion they did that the respondent was provoked by the act of the deceased.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Learned counsel referred to the element of provocation on the loss of self-control, both actual and reasonable, and submitted that the act of the deceased in hitting the respondent with a stick was not one capable of depriving a reasonable man and did not deprive the respondent of his power of self-control to make him for the moment, not the master of his mind. Learned counsel contended that the facts on record did not disclose any grave or sudden provocation that would amount to the triggering of a unilateral act of aggression on the part of the respondent.

Learned counsel contended that the respondent, for all intent and purposes, was acting for a reason other than complete loss of self-control caused by sudden provocation. He submitted that the respondent was clearly in his right senses when he grabbed the deceased’s axe and used it on the deceased twice. He submitted further that the respondent who retaliated with an axe by hitting the deceased twice on the head must have intended the natural and probable consequences of his act. He relied on Harrison Owhoruke vs.

C.O.P. (2015) LPELR – 24820 (SC). ​ Learned counsel submitted that the respondent was in control of his mind when he inflicted the injury on the victim and thus the defence of provocation does not avail him.

On the element of retaliation not disproportionate to the provocation, learned counsel submitted that the Court below erred in its finding as it relates to the defence of provocation as the respondent’s retaliation was disproportionate to the provocation. He submitted that the defence of provocation could not avail the respondent.

Learned counsel contended that the nature of the weapon used by the respondent on the victim which was an axe, as opposed to the stick used by the deceased, cannot be said to be proportionate, but was excessive. He submitted that there was no sufficient provocation from the record to justify the use of an axe twice on the head of the deceased who hit him with a stick at his own back. He relied on Usman Kaza vs.

The State (2008) LPELR 1683 SC. ​ Learned counsel contended further that the ingredients of the offence of culpable homicide punishable without death were not proved, hence there was no justification for the finding of the Court below to mitigate the offence. He urged the Court to resolve issue No. 1 in favour of the appellant against the respondent and set aside the judgment of the Court below which acquitted the respondent.

In arguing issue No. 1 as formulated by the appellant, learned counsel for the respondent referred to the judgment of the trial Court in particular on page 72 of the Record of Appeal. He contended that the trial Judge fell into grave error when he held that the respondent did not avail himself with any of the mitigating circumstances contained in Section 222 of the Penal Code.

He contended that the respondent raised provocation as a defence in his alleged confessional statement which was admitted as Exhibit 3. He submitted that the learned trial Judge was duty-bound to consider the defence. He relied on Shalla Vs. The State (2007) 18 NWLR (Pt. 1066) 240; Ojo vs. State (1973) NSCC 590 at 594.

Learned Counsel submitted that the Court below was right to have considered the defence of provocation raised in the respondent’s confessional statement which the trial Court failed to consider. ​ Learned counsel contended that there is no hard and fast rule for determining acts to constitute sufficient provocation but each case depends on its peculiar facts. He referred to the evidence on records where both the deceased and the respondent were below 17 years at the time of the incident and that they were both herders who were virtually living inside the forest.

He submitted that the act of the deceased in hitting the respondent with the stick being used for herding cattle and goats when the respondent was separating his goats from that of the deceased could cause and indeed caused the respondent temporary loss of self-control. He relied on Queen Reuben Enyi Jinobil (1961) All NLR 654 at 656; Lado vs. State (1999) 13 NWLR (Pt.619) 369. At 436.

Learned counsel referred to the findings of the Court below at page 144 of the Record of Appeal to the effect that the respondent had raised the defence of provocation in his confessional statement to the Police that it was the deceased that first hit him with a stick at his back which suddenly provoked him. He urged the Court to resolve the issue in favour of the respondent against the appellant. ​ As earlier stated, the respondent was charged on one count of committing culpable homicide punishable with death pursuant to Section 221 of the Penal Code by causing the death of one Lawal Musa.

Before I proceed to consider the first issue for determination of the appeal – Whether the Justices of the Court of Appeal were right to have entered a judgment of culpable homicide not punishable with death, I wish to state the following facts that are not in dispute or controversy. – The respondent as the accused was 14 years old at the time of the incident in question. – The deceased was also of the same age, below 17 years at the time of his death. – Both the deceased and the respondent were herders respectively of their cattle and goats in the forest. – It was not disputed or controverted that the deceased was the first to hit the respondent with his herding stick at his back. – That the axe used to hit the deceased on the head by the respondent was spontaneously taken from the deceased in retaliation for hitting him with his stick at the back. – That after being hit on the head with the axe by the respondent and he fell down, the deceased started begging the respondent and asking for forgiveness from the respondent. ​ Generally, the particular Section of the Penal Code pursuant to which the respondent was tried – Section 221 of the Penal Code reads as follows: S.221 “Except in the circumstances mentioned in Section 222 of this Penal Code, culpable homicide shall be punishable with death:- (a) If the act by which the death is caused is done with the intention of causing death or;

(b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause”.

However, Section 222 of the Penal Code referred to in the law pursuant to which the respondent was charged, tried, found guilty as charged and sentenced to 50 years imprisonment, states as follows:- S.222 “(i) Culpable homicide is not punishable with death if the offender whilst deprived of the power of self-control by grave and sudden provocation or causes the death of any other person by mistake or accident.” ​ From the records of Appeal and in the judgment of the trial Court at page 69, the trial Judge found as follows:- “In Exhibit 3, the accused person gave a graphic account of how in the course of rearing their animals on 6/10/2014 the victim’s goats got mixed with that of the accused person which, according to the accused person’s account annoyed the victim (Lawal Musa), and the latter challenged the accused as to why he allowed his goats to mix with his (Lawal’s) own goats.

That accused person began to separate the goats and it was in the process the victim’s goats got frightened then he (Lawal) instantly used his stick and hit the accused with it on his back. That the accused person then grasped his (Lawal’s) axe and hit him twice with it on the head which resulted in his (Lawal) falling down shouting “forgive me, forgive me”.

That the accused then left him there and went ahead …” ​ There is no doubt, from the findings of the trial Court as stated above in the graphic account claimed to have been given in the statement of the respondent made to the Police as admitted and marked Exhibit 3, the exceptional circumstance envisaged in Section 222 of the Penal Code is clearly evident. It was the deceased who instantly used his stick to hit the respondent on his back. In other words, the hitting with a stick at the back came on the respondent suddenly and unaware.

And as reflected in the quoted findings of the Trial Court, the respondent, with passion grasped the axe of the deceased and used it on the deceased to hit him on his head in retaliation.

Generally, provocation has been described to be some acts or series of acts done by the deceased to an accused which would cause any reasonable person and actually does cause in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him, for the moment, not the master of his mind. See; Ahmadu Lado Vs. The State (1999) 13 NWLR (Pt. 619) 369. From the above, what will amount to provocation in a particular situation must be considered with the peculiar facts in mind.

For instance, the station in life of the person and the society in which he lives. In the instant case, the respondent was then 14 years old and a Cattle and goats herder in the bush. ​ In other words, if the trial Court had been diligent enough and had put into consideration the peculiar facts and circumstances of this case, it would have been realized that the respondent was actually provoked by the deceased which deprived him of the power of self-control which made him to suddenly grasp the axe of the deceased and used it on him.

I am therefore at one with the Court below that the instant case is covered by the provision of Section 222 of the Penal Code, being the exception envisaged in Section 221 of the Penal Code. The respondent was entitled to the defence of provocation, raised and not controverted, in his statement and as rightly found and noted by the trial Court. The Court below was therefore right to have entered the judgment of culpable homicide punishable without death.

The defence of provocation in Section 222 of the Penal Code availed the respondent to mitigate the effect of his act that led to the death of the deceased. In this circumstance, Issue No. 1 is resolved against the appellant but in favour of the respondent.

Issue No.2 – “Whether the learned Justices of the Court of Appeal had the jurisdiction to release the respondent despite finding him guilty of culpable homicide not punishable with death.” ​ Learned appellant’s counsel referred to the findings of the Court below on page 145 of the record of appeal. He also referred to Sections 222 (2) and 224 of the Penal Code. He contended that the law admits of life imprisonment or any less term or with fine or with both and nothing more.

Learned counsel contended further that the Court has no discretion in the sentence to be passed where the law had specifically and mandatorily prescribed one. He relied on Joseph Amoshima Vs. The State (2011) LPELR 471 SC.

Learned counsel contended that the fact that the respondent was a minor at the time of the commission of the offence was the reason taken into consideration by the Court below in the exercise of its discretion to discharge and acquit the respondent. ​ Learned counsel submitted that the discharge and acquittal of the respondent by the Court below who was said to be 14 years of age at the time of the commission of the offence and therefore less than 18 years was not in consonance with Section 12 of the Children and Young Persons Act and Sections 272 (1) and 303 (1) of the Criminal Procedure Code.

Learned counsel contended that by virtue of the provisions of the above laws the respondent should have been dealt with as a young person instead of the acquittal and discharge order. He contended further that where the respondent had been found to be less than 17 years at the time of the commission of the offence, and he was found guilty, a sentence of death shall not be passed or recorded but that in lieu thereof, the Court shall order such a person to be detained during the pleasure of the Governor. He relied on Orisakwe Vs. State (2004) 12 WLR (Pt.887) 258 and Guobadia vs.

State (2004) 6 NWLR (Pt.869) 360.

Learned counsel submitted that the acquittal and discharge Order by the Court below was wrong in principle and against the provisions of the law, which has occasioned a miscarriage of justice. He submitted further that the acquittal and discharge order by the Court below of the respondent was ultra vires the sentencing power of the Court.

He urged the Court to set it aside and resolve the issue in favour of the appellant and finally allow the appeal. ​ In arguing the 2nd issue for determination, learned counsel for the respondent contended that it is settled case-law that an accused person is entitled to all the defences that are in evidence and if the trial Court failed to consider the defence, the appellate Court is in a good position to consider same and make appropriate findings. He relied on Section 15 of the Court of Appeal Act, 2004.

He referred to the findings of the Court below upon consideration of the said confessional statement of the respondent which was admitted as Exhibit 3 by the trial Court, that the defence of provocation availed the respondent. He contended that by virtue of the provisions of Section 224 of the Penal Code, the Court below has the discretion to either sentence the respondent to life imprisonment or any less term or with fine or with both.

Learned counsel contended further that in reckoning the length of sentence, the Justices of the lower Court were right to have considered the number of years the respondent had served in prison in compliance with the judgment of the Trial Court.

Learned counsel submitted that it would not be said that the release of the respondent for the offence of culpable homicide not punishable with death after serving 14 years incarceration occasioned a miscarriage of justice. ​ Learned counsel further submitted that the Children and Young Persons Act, in particular, Sections 272(1) and 303 (1) of the Criminal Procedure Code do not apply to the facts of this case as the lower Court did not convict the respondent for culpable homicide punishable with death.

He referred to Sections 272 (1) and 303 (1), (2) and (4) of Criminal Procedure Code and Section 12 of Children and Young Persons Act Cap 485. He submitted that they are not applicable to the instant case, hence he urged the Court to discountenance with the submissions of the appellant on the said laws. He urged the Court to resolve the 2nd issue against the appellant and dismiss the appeal.

It is clear from the record of appeal and in the judgment of the Trial Court, that the trial Judge had, in his findings on page 69 noted that on the day the incident in question happened, both the deceased and the respondent were together rearing their respective animals in the bush. The trial Court also found that the deceased – Lawal Musa was the first to instantly used his stick and hit the accused with it on his back. It was also found that the respondent then grasped the deceased’s axe and hit him twice with it on the head which resulted in Lawal’s falling down.

​It is interesting that the trial Judge did not consider the instant use of the stick by the deceased to hit the respondent on his back as provocative which led the respondent to grasp the deceased’s axe from him and in retaliation used it to hit him on the head twice.

Ordinarily, not having availed the respondent with the provisions of Section 222 of the Penal Code, the trial Court went ahead to convict the respondent as charged with culpable homicide punishable with death.

However, the Court below, in my firm view, rightly in the peculiar circumstances of this case, availed the respondent with the provisions of Section 222 of the Penal Code on the effect of provocation arising from the act of the deceased leading to the assault inflicted on him by the respondent. There is no doubt that the deceased provoked the attack on him by the respondent. In other words, the deceased can be said to be the first aggressor.

It is clear from the record that the trial Court did not consider the defence of provocation for the respondent even though he had raised it at the earliest opportunity in his statement made to the police – Exhibit 3. ​ It is noteworthy that the Court below in computing the sentence to give the respondent having availed him the defence in Section 222 of the Penal Code, the Court held, inter alia, as follows on page 145 of the record of appeal: “The appellant (respondent herein) was at the time of the commission of the offence a minor, 14 years of age.

In passing sentence on the accused, the age of the accused at the time of the commission of the offence and not at the time of conviction is to be taken into consideration … The appellant having spent close to 16 years incarceration, since his arrest, detention and conviction, I have a duty, in the interest of justice and the fact that the appellant was a minor at the time of the commission of the offence to allow this appeal and order the immediate release of the appellant from custody” ​ The Court below was right to have converted the term already served by the respondent in custody as a sufficient term of imprisonment as punishment for the offence of culpable homicide not punishable with death.

Indeed, the sentence of 50 years imprisonment passed on the respondent by the trial Court was ridiculous and unwarranted in the circumstance of the instant case. This issue No.2 is resolved against the appellant.

In this circumstance, this appeal is adjudged lacking in merit and deserves to be dismissed. Accordingly, the appeal is dismissed. The Order of acquittal and discharge of the respondent is equally affirmed. Appeal is dismissed.

JOHN INYANG OKORO, J.S.C.: I had the privilege of reading in advance the judgment of my learned brother, Olukayode Ariwoola, JSC just delivered, and without hesitation, I state that I completely agree with the reasons and conclusion reached therein.

The facts of the case leading to this appeal as already reproduced in the leading judgment reveal that the Respondent unlawfully killed the victim on 6th October 2004 at which time he was yet a minor, and by the law, not criminally liable for the offence of culpable homicide punishable with death for which he was charged with.

Moreover, he was suddenly provoked to commit the offence when the deceased first hit him on the back with a stick. ​ Firstly, the law is explicit in Section 222(1) of the Penal Code that culpable homicide is not punishable with death if the offender whilst deprived of the power of his self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. See Shuaibu Abdu v The State (2017) 7 NWLR (pt 1564) 171, Ahmed v The State (1999) 7 NWLR (pt 612) 641.

For this defence to avail an accused person, he must be able to prove conjunctively that: (a) it was the deceased person’s act of provocation which caused his loss of self-control; (b) he killed the deceased in the heat of passion and (c) at the time of the offence, the heat of passion had not waned or abated. Amala v State (2004) 12 NWLR (pt 888) 520.

In the instant case, the evidence of the Respondent that he grabbed the deceased axe and retaliated the beating from the deceased, on the spur of the moment before the provocation could vaporize, has not been controverted. This legal defence therefore clearly avails the Respondent to put the offence under culpable homicide not punishable with death. ​ Secondly, the respondent committed the offence whilst yet at the age of criminal irresponsibility provided under Section 272(2) of the Criminal Procedure Code and 12 of the Children and Young Persons Act.

I hold the opinion that the draftsmen of these statutes had a good reason for absolving children and young persons from criminal liability. One of the reasons, I believe is that a child lacks the power of self-control and to understand the full import of a criminal act. If sudden temper can cause an adult to lose control of his mind temporarily, how much more a child.

It would therefore amount to grave injustice on the respondent to either pronounce capital punishment on him or incarcerate him for life for an offence which he committed whilst under seventeen years of age and whilst temporarily deprived of the power of his self-control. The years he has already spent in prison are sufficient punishment in my opinion.

All I have labored to say in essence is that this appeal has no merit and deserves to be dismissed. I also dismiss it. I affirm the decision of the Court below which acquitted and discharged the Respondent. Appeal Dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment just delivered by my learned brother, Ariwoola, JSC, and I agree that this Appeal lacks merit, and must be dismissed. The Respondent, who was fourteen years old, when the incident occurred, was convicted, and sentenced by a Katsina State High Court to “a prison term of 50 years with effect from the date of [the] Judgment” [11/6/2012], for the offence of culpable homicide punishable with death. He appealed.

In its Judgment of 22/5/2015, the Court below held that he ought to have benefited from a defence of provocation, “which could have mitigated the offence from culpable homicide with death to that not punishable with death under Section 222 [Penal Code]”.

It also considered his age at the time of the incident and concluded as follows: The Appellant having spent close to 16 years’ incarceration – I have a duty in the interest of justice and the fact that Appellant was a minor at the time – to allow this Appeal and order the immediate release of the Appellant from custody – I find merit in this Appeal. The conviction and sentence of 50 years – is hereby set aside. Appellant is hereby discharged and acquitted.

The State is the Appellant in this Court, and its contention in this Appeal is that the Court below based its decision on wrong principles and misapplied judicial authorities; that the said defence of provocation did not avail the Respondent to make him eligible for a lesser offence; and that the Court below acted in excess of jurisdiction by discharging and acquitting him after finding him guilty.

On his part, the Respondent submitted that the Court below was right to rely on the defence of provocation that he raised in his Confessional Statement; that due to his station in life, the act of hitting him with the stick caused a sudden loss of self-control; that the Prosecution did not adduce evidence showing the nature of the stick, to enable the Court form an opinion on whether it will make a reasonable man in his standing fear for his life; and that the Court of Appeal has discretion on a sentence of culpable homicide not punishable with death.

As the Respondent rightly submitted, a defence of provocation must be considered in the light of circumstances of the case, which includes the station in life of the Accused Person, and the society in which he lives – see Lado V. The State (1999) 9 NWLR (Pt. 619) 369, wherein Wali, JSC, observed: It will be sufficient to acquit the Accused for culpable homicide punishable with death if the evidence adduced raises such a possibility of the existence of circumstances entitling him to the benefit such that the Court feels it cannot safely disregard.

Blows as well as threatening gestures, if near, are enough and serious as to cause loss of self-control and may justify and indeed reduce the killing to culpable homicide not punishable with death, particularly where the community is primitive, less secure, and less settled in its habits. Considering whether the provocation was enough to make a reasonable man do as the Appellant did, it is relevant to compare the acts or things done, which are put forward as a provocation with the nature of the acts committed by the Appellant.

It must be shown that there was an instant provocation, negativing the possibility of deliberation or craft or choice of alternatives … Although the Appellant used the deadly weapon on the deceased, the evidence did not conclusively show that he intended to kill. So, the test is whether a reasonable man in the street or status of the Accused would have been provoked to commit the offence – see Kaza V. State (2008) LPELR-1683(SC), Shalla V. The State (2007) 18 NWLR (Pt. 1066) 240 and Owhoruke V.

COP (2015) LPELR-24820(SC), wherein this Court observed: “There is no set standard of retaliation expected from a reasonable man; it all depends on the Appellant’s station in life. A reasonable man is a reasonable man of the Accused person’s standing in life and to a large extent, his cultural background”.

A successful plea of provocation is not exculpatory; it is a mitigating factor that whittles down punishment for culpable homicide punishable with death to that of culpable homicide not punishable with death – see Galadima V. State (2012) LPELR-15530(SC). In this case, the deceased and Respondent were cattle-rearers, and they were in the bush rearing cattle when the deceased suddenly hit the Respondent on the back with his stick and in retaliation, Respondent grabbed the deceased’s axe and hit the deceased.

In the circumstances of this case, and bearing in mind the Respondent’s station in life, I agree with my learned brother that the Court of Appeal was right to have entered a judgment of culpable homicide not punishable with death. ​ It is for this and the other well-articulated reasons in the lead Judgment that I also dismiss this Appeal for being unmeritorious. Appeal dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege to read in draft the erudite judgment just delivered by my learned brother HON. JUSTICE OLUKAYODE ARIWOOLA JSC. I agree that this Appeal be dismissed.

This is an appeal against the judgment of the Court of Appeal Kaduna Judicial Division Coram; Uwani Musa Abba Aji, Abdu Aboki, Habeeb A. Olumuyiwa Abiru (JJCA) delivered 22nd May 2015 which upturned the decision of the High Court of Kastina State delivered 11th Day of July 2012 by Hon. Justice l. B. Ahmed J. wherein the Respondent was convicted and sentenced to fifty (50) years imprisonment for Culpable homicide.

The main issue raised in this appeal is whether, in the circumstances of this case, the Court below was right to have found the Respondent guilty of culpable Homicide but not punishable with death and to order his release forthwith. ​ The Respondent in this appeal had been convicted for culpable homicide punishable with death and sentenced to fifty (50) years imprisonment after conviction. The Respondent had hit the deceased on the head with the axe belonging to the deceased during a quarrel provoked by the said deceased. The Respondent was 14 years old at the time.

The Respondent had confessed to the act of hitting the deceased on the head in his confessional statement at trial. – Exhibit 3.

On appeal, the Court below set aside the conviction of culpable homicide punishable with death and sentence of fifty (50) years imprisonment. The Court convicted the Respondent for Culpable Homicide NOT punishable with death.

The Court below also reasoned that the Respondent had been in police/prison custody since the offence was committed sometime in 2004, ordered that the Respondent be released forthwith after spending eleven (11) years in custody. ​ I agree with the Court below that from the evidence on record it is clear that the Respondent was provoked by the deceased and he was entitled to the defence of provocation.

The Court cannot use a portion of the confessional statement of a Defendant in a criminal trial which makes him culpable, but ignore the portion of the same statement which is a defence to the charge or which can mitigate the seriousness of the charge. In this case, the confessional statement of the Respondent at the trial and the other eyewitness showed that the fight was initiated by the deceased who was an older person.

The Court cannot believe that portion of the statement where the Respondent admitted hitting the deceased with an axe and ignore that part of the Respondent’s statement detailing what led to the fight and who initiated that particular incident. See Boms v. State (1971) ANLR Pg. 335; Uluebeka v. State (2000) 7 NWLR Pt. 665 Pg. 404; Uwani v. The State (1988) 1 NWLR (Pt. 70) Pg. 274; Olayinka v. State (2007) 9 NWLR Pt. 1040 Pg. 561.

The conviction and sentence to fifty (50) years imprisonment was totally unwarranted in the circumstances of this case.

I agree with the more exhaustive reasons in the lead judgment. The judgment of the Court below is affirmed. The order of acquittal and discharge is affirmed. Appeal Dismissed.

TIJJANI ABUBAKAR, J.S.C.: This appeal emanates from the Judgment of the Court of Appeal Kaduna Division, delivered on the 22nd day of May, 2015 (Coram Abba Aji, Aboki, Abiru, JJCA) wherein the lower Court set aside the Judgment of the Trial Court. The Appellant was accordingly discharged.

Just by way of brief summary of facts, the Appellant was said to have killed one Lawal Musa by hitting him on the head with an axe, he was arraigned on a single charge of culpable homicide contrary to and punishable under Section 221 of the Penal Code. ​ At the trial, the Prosecution called six witnesses and tendered four exhibits. The Respondent testified on his own behalf as DW1, in his evidence, the Respondent denied hitting and killing the deceased.

At the conclusion of the trial, the Respondent was found guilty and sentenced to 50 years imprisonment, he became aggrieved and therefore filed an appeal at the Court of Appeal Kaduna Division, the Court of Appeal delivered Judgment on the 22nd day of May 2015, the Respondent was accordingly discharged by the lower Court. The Prosecution, therefore, became aggrieved and lodged an appeal before this Court on the 19th day of June 2015 challenging the order of discharge made by the lower Court.

The learned Counsel for the Appellant Kelechi Obi filed the Appellant’s brief of argument on the 1st day of September 2016, the brief was deemed as properly filed and served on the 19th day of March 2020, in the Appellant’s brief learned Counsel nominated and argued two issues for determination, the issues are reproduced as follows: 1. Whether the Justices of the Court of appeal were right to have entered a Judgment of culpable homicide not punishable with death (GROUND 1). 2.

Whether the learned Justices of the Court of Appeal had the jurisdiction to release the Respondent despite finding him guilty of culpable homicide not punishable with death. (GROUND 2)

The learned Counsel for Respondent Obinna Ajoku filed the Respondent’s brief of argument on the 30th day of September 2016. In the Respondent’s brief, learned Counsel adopted Appellant’s issues for determination. It is therefore needless to reproduce the Appellant’s issues again. The appeal will be discussed on the issues nominated for determination by the Appellant.

Both Counsel made comprehensive submissions on the issues for determination as set out in the leading Judgment prepared and rendered by my learned brother ARIWOOLA, JSC. ​ The lower Court was of the view that since the Respondent was found guilty of culpable homicide punishable with death under Section 221 of the Penal Code the Court had no jurisdiction to in the alternative sentence the convict to 50 years imprisonment.

The lower court held the view that since the Appellant was only 14 years when he committed the offence it was wrong for the trial Judge to pronounce a sentence and that the sentence to 50 years imprisonment was illegal, void and of no effect whatsoever.

The lower Court however went ahead to consider the appeal on the merit and found the Appellant guilty of culpable homicide not punishable with death under Section 222 of the Penal Code having raised and established a defence of provocation, and converted the term already spent in custody as sufficient term of imprisonment for the offence of culpable homicide not punishable with death.

Appellant was 14 years when he committed the offence, and he had already spent 16 years in prison custody, since he was a minor when he committed the offence, the Court ordered that he be discharged and released from custody.

​Appellants appeal was therefore allowed. I am also of the view that the appeal is patently lacking in merit and deserves to be dismissed. The Judgment of the lower Court acquitting and discharging the Respondent is affirmed. The appeal by the prosecution is frivolous, vexatious, and irritating, it is accordingly dismissed.

Judgment

JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This appeal is against the decision of the Court of Appeal, Kaduna Judicial Division delivered on 3rd July, 2015 in appeal No. CA/K/435/C/2014. In that appeal, the Court below acquitted and discharged this Respondent of the conviction and sentence imposed on him by the High Court of Katsina State for offences of robbery and culpable homicide.

The Respondent who was 3rd accused person, was arraigned together with four others before the High Court of Katsina State on a two count charge of robbery and culpable homicide as follows: “Count one: That you Babangida Abubakar alias Gidgo of Sabuwar Kofa quarters Katsina, Sani Idris alias Shamuloke of Kofar Marusa quarters Katsina, Abdulhadi Sadiq alias Baba Reza of Kofar Marusa quarters Katsina, Lawal Abubakar alias Dan Lawal of Kofar marusa quarters Katsina and Idris Umar alias Dan Idi of Sabuwar Unguwa Koren Dorowa Katsina, on or about the 11th day of October, 2012 while in company of others now at large, while armed with sticks and matchets, attacked, wounded and left unconscious Sulaiman Abubakar and Usman Abubakar who are security guards of Mangal Plaza, Yahaya Madaki way, Kofar Kaura Katsina, you then burgled and entered the shop of one Alh.

Babangida Ali at the same address where you took away different types of G. S.

M. handsets valued at about the sum of Three Million Naira (N3 million) and money in the sum of Three Hundred and Fifty Two Thousand Naira (N352,000.00) and you thereby committed an offence punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.” “Count two: That you Babangida Abubakar alias Gidigo of Sabuwar Kofa quarters Katsina, Sani Idris alias Shamuloke of Kofar Marusa quarters Katsina, Abdulhadi Sadiq alias Baba Reza of Kofar Marusa quarters Katsina, Lawal Abubakar alias Dan Lawal of Kofar Marusa quarters Katsina and Idris Umar alias Dan Idi of Sabuwar Ungwa Koren Dorowa Katsina, on or about 11th day of October, 2012 while in company of others now at large, at Mangal plaza Yahaya Madaki Way Katsina, attacked and beat one Usman Abubakar with sticks and cut him with matchets which resulted in his death with the knowledge that death would be the probable consequence of your act and you thereby committed the offence of culpable homicide punishable under Section 221 of the Penal Code”.

They were all found guilty on both counts and sentenced to death by hanging. The Respondent’s appeal to the Court below was allowed wherein he was accordingly acquitted and discharged. It is against that decision of the Court of Appeal that the Appellant has now appealed to this Court.

​The prosecution’s case is that on or about 11th October 2012, the Respondent in company of others now at large, while armed with sticks and machetes attacked and grievously injured two security men at Mangal plaza, Yahaya Madaki Way, Kofar Kaura Katsina, leaving them unconscious, which act subsequently resulted in the death of one of the security men. They also burgled the shop of one Alhaji Babangida Ali Mai-chanji (the PW1) at the same premise and stole the sum of N352,000.00 cash and G.S.M. handsets valued at about N3,000,000.00.

About two months after the robbery incident, one Muhammad approached PW2 to purchase battery for his phone. Upon close inspection, it was discovered that the phone which Muhammad sought to purchase battery for was actually one of the phones stolen during the robbery incident. He was therefore apprehended and upon interrogation he led the police officers to one Suleiman Kasuwar Tsaye who upon his arrest stated that the phone was given to him to sell by Idris Umar (the 5th accused person).

The police conducted a search in the house of Idris Umar from where 3 other handsets and several other stolen items were recovered.

On arraignment, all accused persons pleaded not guilty to both counts of robbery and culpable homicide. The prosecution called a total of 10 witnesses and tendered several exhibits including exhibits A and A1 which were this Respondent’s extra-judicial statements recorded in Hausa language and translated into English language. The Respondent raised an objection to the admissibility of his confessional statement on the ground that he was forced to thumbprint the statement.

Despite his objection, the learned trial Judge admitted the statements without a trial within trial and relied on same to convict the Respondent.

​At the Court of Appeal, it was found that the confessional statements were wrongly admitted for failure to test its voluntariness in a trial – within-trial. Exhibits A and A1 were therefore expunged from the record and the Respondent acquitted and discharged. It is against the judgment of the Court below that the Appellant has now appealed to this Court in his amended notice of appeal filed on 10th February, 2020 but deemed filed on 19th march, 2020.

Both parties filed and exchanged their briefs of arguments deemed filed on 19th March, 2020 respectively.

The appeal was set down for hearing on 30th September, 2021 wherein the Appellant distilled two issues for determination which were equally adopted by the Respondent as follows: (i) Whether the Court of Appeal was right in expunging the confessional statement of the Respondent and holding that there was no other evidence to ground his conviction (Ground 2); and (ii) Whether the Court of Appeal was right in holding that the Statement of the Respondent was not voluntarily procured. (Ground 1)

​A careful perusal of the two issues for determination proposed by the Appellant and adopted by the Respondent shows that the argument on both issues centre essentially on the decision of the Court below to expunge the Respondent’s confessional statement in exhibits A and A1 from record on the ground that they were wrongly admitted. In my opinion, the two issues are more or less the same except for the different words used to couch them.

I also hold the view that the first issue canvassed by the parties is sufficient to determine this appeal. I shall therefore adopt same as reproduced supra, although I shall reframe it to make it concise as follows: “whether the Court of Appeal was right to expunge the Respondent’s confessional statement from record for being involuntarily procured and wrongly admitted in evidence.”

Learned counsel for the Appellant in his argument laboured to distinguish the facts in the case of Uche Obidiozo & Ors v. The State (1987) LPELR-2170 (SC) from the instant case to show that there are differences between where an accused person raises objection to the voluntariness of his confessional statement and where an accused person denies making the statement.

Counsel submitted that where admissibility of a statement is challenged on the ground that it was not made voluntarily, it is for the Judge to determine whether or not the prosecution has established that it was made voluntarily in a trial within trial, which he contends is not the situation in this case. Counsel placed reliance on the case of Queen v. Eguabor 1962 vol. 1 All NLR part 2 page 287 to buttress his argument.

Learned counsel for the Appellant further argued that the objection of the Respondent was predicated on the fact that he did not make the statement and also on the fact that the Illiterate Protection Law was not complied with in the recording of his statement. Thus, the statement was admissible pending the weight to be attached to it. The expunging of the confessional statement on the authority of Uche Obidiozo v. The State (supra) was wrong in law and a clear departure from the established position in Queen v. Igwe 5 FSC 56-56, he contended.

Learned Counsel finally relied on the authorities of Augustine Nwangbomu v. The State (1994) LPELR-2105 (SC): Manu Galadima v. The State (2012) LPELR-15530 (SC) and Egboghonome v State (1993) 7 NWLR (pt. 306) 383 SC, to submit that the attitude of the Respondent towards the confessional statement is that of denial which goes to the issue of retraction and not voluntariness as misconstrued by the learned justices of the Court of Appeal. He therefore urged on this Court to resolve the issue in favour of the Appellant and allow the appeal.

On his part, learned counsel for the Respondent argued that the Respondent’s ground of objection to the admissibility of his confessional statement and the decision of the Court of Appeal to expunge the statement from record having been procured by force are on all fours with the facts and findings in the case of Obidiozo v The State (Supra).

Counsel submitted that the current position of our law is that when a Defendant alleges that his signature or thumb print on a written confessional statement was procured by force or intimidation, a trial-within-trial is mandatory to determine the voluntariness of the statement.

Learned Counsel argued further that by the authorities of Corporal Jona Dawa & Anor. V. State (1980) LPELR 932 (SC) and Obidiozo v. The State (supra), this Court has departed from the position laid down in Queen v Igwe (supra) where it was held that allegation that signature or thumb print on a written Confessional Statement procured by force will not warrant a trial-within-trial.

Finally, Counsel argued that the learned justices of the Court of Appeal were on firm ground to have expunged the Respondent’s confessional statement in exhibits A and A1 from record, same having been obtained by force and was not subjected to the voluntariness test in a trial-within-trial. He then urged this Court to resolve this issue in favour of the Respondent and dismiss the appeal.

In the appeal before us, the learned trial Judge held that the prosecution proved its case against the Respondent beyond reasonable doubt and therefore convicted the Respondent and sentenced him to death by hanging. His Lordship relied on the Respondent’s confessional statement recorded in Hausa language and translated into English language by PW5 who was a police officer. The trial Court relied on the statement and found the Respondent guilty as charged despite the fact that the Respondent raised an objection to its admissibility on the ground that he was forced to thumb print the statement.

​At the Court below, the Respondent’s confessional statement was expunged from the record on the ground that it was wrongly admitted, the trial Court having not conducted a trial-within-trial to ascertain its voluntariness. The Court went further to acquit and discharge the Respondent having found no other evidence linking him to the offence.

For reference, a portion of the vexed judgment of the Court of Appeal which is at page 177 of the record is reproduced as follows: “Therefore, as the law now stands, the Appellant’s thumbprint which he said he was forced to append on the exhibits A and A1 are part and parcel of the whole statement and cannot be detached or severed from the body of the statements. A claim that his thumbprint on the statement was not voluntarily appended on the statement is invariably a claim that the statement was not voluntary, which calls for a trial within trial.

The learned trial Judge with respect was in error to have declined to conduct a trial-within-trial. The result is that the statements were wrongly admitted. The consequence of that, to quote Agbaje JSC again Is that: – “I would expunge them from the proceedings in this case. ” I abide by that order of the Supreme Court and accordingly, I expunge exhibits A and A1 from the record.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Having expunged the statements from the record, the question of whether the Court could convict upon, the now expunged confessional statement does not arise. In the circumstance, this issue is resolved in favour of the Appellant that exhibits A and A1 were wrongly admitted and relied upon by the learned trial judge to convict the Appellant”

In his conclusion at page 184 of the record, the Court set aside the decision of the trial High Court convicting and sentencing the Respondent to death and thereby acquitted and discharged the Respondent.

My lords, the issue to be determined in this appeal is whether the prosecution proved the offences of robbery and culpable homicide made against the Respondent beyond reasonable doubt based principally on the extra-judicial statements made by the Respondent to the police which the trial Court admitted in evidence as exhibits A and A1.

The Court below disagreed with the findings of the learned trial Judge on the ground that the Respondent, having alleged that he was forced to endorse the confessional statement, the Court was duty bound to conduct a trial within trial to ascertain its voluntariness. The statement was therefore expunged from the record and the Respondent’s conviction and sentence set aside.

It is now well settled that in our criminal jurisprudence, the onus is on the prosecution to establish its case beyond reasonable doubt. See Josiah Orungua & Ors v. The State (1970) All NLR 266; (1970) LPELR 2780 (SC) – Olayinka Afolalu v. The State (2010) 16 NWLR (PT 1220) 584 – Miller v. Minister of Pensions (1947) 2 All ER 372 – Yongo v. Commissioner of Police (1992) 4 SCNJ 113; (1992) 8 NWLR (pt. 257)36 – Alonge v. IGP (1959) 4 FSC 203; (1959) SCNLR 516 – Babuga v. State (1996) LPELR-701 SC; (1996) 7 NWLR (PT. 460) 279 – Sections 135 and 138 of the Evidence Act, 2011 (as amended)

I need to emphasize that the standard of proof required of the prosecution is not proof beyond all shadow of doubt as absolute certainty is impossible in any human adventure. See State v. James Gwangwan (2015) 13 NWLR (pt 1977) 600 at 621.

​The law has made it explicit that there are three ways of proving criminal liability by the prosecution in any criminal trial, to wit: (a) Confessional statement of the accused. (b) Evidence of an eyewitness otherwise known as direct evidence; or (c) Circumstantial evidence which must be cogent and compelling leading to the irresistible conclusion that the accused committed the offence. See Agboola v. The State (2013) 8 SC M 157; (2011) 11 NWLR (pt 1366) 619 – Abdullahi Ibrahim v. State (2014) 3 NWLR (pt 1394) 305 – Alufohai v. The State (2015) 3 NWLR (pt. 1445) 172.

In the instant case, it seems to me that the prosecution relied largely on the Respondent’s confessional statement as the only substantial evidence linking him to the commission of the offence. I note that the Respondent took the earliest opportunity in Court to resile from voluntarily endorsing the confessional statement at the point of its being tendered in evidence. At that juncture, what was expected of the learned trial Judge was to conduct a mini-trial to ascertain the voluntariness or otherwise of the confessional statement before admitting it in evidence. See Auta v.

The State (1975) 4 SC 125; Gbadamosi & Ors v The State (1992) 9 NWLR (pt. 266) 465 at 480; (1992) 11- 12 SCNJ 1268; Effiong v The State (1998) 5 SCNJ 158 at 166; (1998) 8 NWLR (pt. 562) 362.

The law is trite and well established that the Court can admit and safely rely on a retracted confessional statement to convict an accused person once the Court is satisfied that such statement is voluntary, direct, positive, unequivocal and a truthful account of what transpired. The law has however made it desirable for the Court to look for some corroboration outside the confessional statement, to determine if the circumstances made it probable that the confession was true. See Haruna v. A-G, Federation (2012) 9 NWLR (pt. 1306) 419 – Alarape v. State (2001) 5 NWLR (pt. 705) 79 – Osuagwu v.

The state. (2013) 5 NWLR (pt. 1347) 360.

In otherwords, a confessional statement remains the best form of evidence against an accused person once it is proved to be voluntary, direct and positive. The Court can rely solely on it to ground conviction. See Edhigere v. The State (1996) 8 NWLR (pt. 464) at P. 1; – Oseni v. State (2012) 5 NWLR (pt 1293) 351 – Egboghonome v State (1993) 7 NWLR (pt. 306) 383.

​At this juncture, I consider it pertinent to make a distinction between a situation where an accused person completely denies making a confessional statement and where an accused contends that he made or endorsed the confessional statement under duress. In the first situation, the Court is at liberty to admit the statement without having to conduct a mini-trial to determine its veracity.

Only that the weight to be attached to the statement would be determined after subjecting it to the six-way tests prescribed by the law as follows: (i) Is there anything outside the confession to show that it is true? (ii) Is it corroborated? (iii) Are the statements made in it true as far as can be tested? (iv) Was the prisoner one who had the opportunity of committing the offence? (v) Is the confession possible? (vi) Is the confessional statement consistent with other facts which have been ascertained and have been proved? ​Once the statement has been subjected to these tests and it is ascertained that there are other facts outside the confession to corroborate it, the law decrees that same can be relied upon to ground conviction.

See R v. Sykes (1913)8 LR APP R-233 approved and applied in Dawa v. State (1980) 8-11 SC 236; Musa v. State (1995) 9 NWLR (pt. 421) 540 at 554. On the second scenario where the accused person alleges that he made the statement or endorsed same under duress or some form of influence by a person of authority, the law requires that a trial-within-trial must be conducted to ascertain the voluntariness of the statement. See State v. Gwangwan (supra).; Obasi Onyenye v. The State (2012) LPELR 7866(SC) This issue was primarily considered in the case of Akpa v.

State (2008) 14 NWLR (pt. 1106) 1 at 98 where this Court per Ogbuagu, JSC observed as follows: “… trial within trial is ordered and conducted where the voluntariness of the making of the statement by an accused person is in issue or raised by an accused person. In other words, where an accused person admits making the statement, but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence, then a trial within trial is conducted in order to determine whether the statement was voluntary or made by duress or otherwise.

When the Judge is satisfied that the statement was voluntary, he then admits it as an exhibit in the evidence before the Court”.

Flowing from the above and with due respect to the learned trial Judge, the evidence of the Respondent did not amount to a retraction. Rather, he challenged the voluntariness of the evidence extracted from him by the police by use of force. He did not contend the fact that the statement was recorded in Hausa language by PW5 and translated into English Language after it had been read over to him. His only objection was that he was forced to thumb print on the statement, which objection automatically pulled a cloak of involuntariness over the statement.

Having successfully cast doubt on the voluntariness of his thumb print on the statement, the learned trial Judge ought to have conducted a trial within trial to ascertain the voluntariness of the endorsement on the statement. Admitting the confessional statements and marking them as exhibits without testing their voluntariness in a mini-trial, was in my humble view, fatal to this case. The Court below was therefore on sound wicket when it expunged exhibits A and A1 from record for having been wrongly admitted. I so hold.

​Now, having affirmed the judgment of the Court below expunging the Respondent’s confessional statement from record, I shall consider if there exist any other evidence which linked the Respondent to the offence charged.

I must say that I have carefully perused the record of appeal and the only mention of the Respondent is in the evidence of PW5, the police officer who recorded the statement of the Respondent already expunged by the Court below and the evidence of DW4, Lawal Abubakar, in exhibit A1 as well as the evidence of DW5, Idris Umar in Exhibit H1 wherein the Respondent was named as one of the persons who participated in the crime.

​The law is settled that an accused person’s confession is only evidence against him and not against a co-accused person except otherwise adopted by the co-accused. Putting it differently is to say that where an accused person makes a confessional statement as to his participation in a crime, he is not confessing for his accomplices but himself alone.

The Court cannot therefore rely on the confession of one accused person to convict another accused person unless the confessional statement is voluntarily adopted by the co-accused, although it can be used as a corroborating evidence where other pieces of vital evidences exist pointing to the fact that the co-accused committed the offence. See Ozaki v. State (1990) LPELR-2888 (SC); (1990) 1 NWLR (pt. 124) 92 Evbuomwan v C O P (1961) NWLR 257 – Section 199 of the Evidence Act 2011 (as amended) In the case of State v.

Gwangwan (supra), my learned brother, Fabiyi, JSC, in his contributory judgment, had this to say: “A statement made to the Police by an accused person implicating a co-accused is not admissible against that accused. Where the prosecution intends to use the statement against a co-accused, as herein, then the prosecution is bound to make a copy of the incriminating statement available to the co-accused for him to reject or adopt same. There is nothing in the record that same was carried out by the prosecution. The decisions in the cases of Mumuni v. The State (1975)6 SC 79; Chukwueke v.

The State (1991) 7 NWLR (pt 205) 604 and Yongo v. Commissioner of Police (1992) 8 NWLR (pt.257) 36 are in point here.”

​In the instant case, the Court below was on firm footing to discountenance the inference that the statements of DW4 and DW5 implicated the Respondent as long as he did not adopt same.

From all that I have said above, I hold the firm opinion that the Court below was in order when it held that: “the result is that there is nothing on record linking the appellant to the crime committed.”

To my mind, having expunged the Respondent’s confessional statement from the record, the prosecution had no other evidence to sustain the charge against the Respondent. There was indeed no evidence to infer the offences of robbery and culpable homicide. This issue is resolved against the Appellant and in favour of the Respondent.

It has now become trite in our criminal law jurisprudence that it is better that 10 guilty persons go free than that one innocent person be convicted. This Court for all intent and purposes frowns at technical justice but in a situation where the law prescribes the manner in which justice must be attained, circumventing such set down rule would certainly vitiate justice. My point here is that the learned trial Judge fell into a grave error by not conducting a trial within trial to ascertain the voluntariness of the Respondent’s confessional statement.

Having said that, I affirm the decision of the Court of Appeal which set aside the judgment of Katsina State High Court in this case. I also affirm the order setting aside the conviction and sentence of the Respondent to death by hanging. I uphold the order of acquittal and discharge of the Respondent rendered by the Court below. Appeal dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft, the lead judgment of my learned brother Okoro, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment. I also consider the appeal unmeritorious and deserves to be dismissed. Accordingly, it is dismissed by me. Appeal dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the judgment of my learned brother HON. JUSTICE JOHN INYANG OKORO JSC. I agree with the reasoning and conclusion that this appeal is wholly without merit and should be dismissed.

​The Respondent had been convicted along with four others for the offence of Armed Robbery and Culpable Homicide punishable with death for attacking two of the guards at the Mangal Plaza in Katsina town with sticks and machetes before burgling some shops therein and stealing several electronic items including handsets etc. One of the security men attacked later died of his injuries. The Respondent appealed against his conviction to the Court below where he was acquitted and discharged. The State has now appealed against the judgment of the Court below being dissatisfied with same.

The case of the prosecution is that during police investigation, the 5th Defendant at the trial had named the other four Defendants as co-conspirators and actors in the armed robbery incident. The Court below found that even though the Respondent complained at the appropriate time (while the confessional statement was about to be tendered) against the voluntariness of the statement, the trial Court did not order trial-within-trial to test the admissibility of the statement which is the appropriate procedure in such matters.

I agree with the Court below that this was grave error on the part of the trial Court and the Court below was right to have expunged the said Exhibits A and A1 from the record.

​The Respondent had been convicted mainly on the said Exhibits A and A1 and the extra-judicial statement of the 5th Defendant who implicated him in the offences. The extra-judicial statement of a co-defendant is only evidence against the said Defendant in a criminal trial. See Suberu v. The State (2010) 8 NWLR Pt. 1197 Pg. 586, LPELR-3120 (SC) Pg. 16 Paras A-B; Akinsuwa v. The State (2019) LPELR-47621 (SC) Pgs. 19-23 Paras F-A, Dibie v. State (2007) 9 NWLR (Pt. 1038) Pg. 30 and Idowu v. State (2000) 7 SC (Pt. 11) Pg.50.

By Section 29 (4) of the Evidence Act, it remains a statement and not the evidence of that co-defendant. However, where the co-defendant repeats and adopts his extra-judicial statement implicating another defendant on oath, his evidence and that statement on oath can alone be used to convict the co-defendant after the Court has warned itself of the need to exercise caution in that regard. See Dairo v. The State (2017) LPELR-43724 (SC); Yongo v. C.O.P (1992) LPELR 3528 (SC), Section 29(4) of the Evidence Act.

For these and fuller reasons given by my learned brother, I dismiss the appeal and affirm the judgment of the Court below. Appeal Dismissed.

​ABDU ABOKI, J.S.C.: I had a preview of the judgment prepared and just read by my learned brother JOHN INYANG OKORO, JSC. I am in entire agreement with the reasons and conclusions arrived at by His Lordship. While adopting those reasons and conclusion as mine, I also wish to chip in few comments in their support.

This is an appeal by the Prosecution against the decision of the Court of Appeal, Kaduna Division delivered on 3rd July, 2015 wherein the lower Court discharged and acquitted the Respondent on the two count charge of the offence of Armed Robbery and Culpable homicide punishable with death.

The facts leading to this appeal are that the Respondent, as the 4th Defendant in Charge No: KTH/4C/2013 was charged along with four others on a two count charge of the offence of Armed Robbery punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, CAP R11 LFN 2004 and culpable homicide punishable with death under Section 221 of the Penal Code. The charge, dated 4th March 2013, reads thus: 1.

That you, (1) BABATUNDE ABUBAKAR ALIAS GIDIGO of Sabuwar Kofa Quarters Katsina, (2) SANI IDRIS ALIAS SHAMULOKE of Kofar Marusa Quarters, Katsina, (3) ABDULHADI SADIQ ALIAS BABA REZA of Marusa Quarters Katsina, (4) LAWAL ABUBAKAR ALIAS DAN LAWAL of Kofar Marusa Quarters Katsina, and (5) IDRIS UMAR ALIAS DAN IDI of Sabuwar Unguwa Koren Dorowa, Katsina.

On or about the 11th day of October, 2012 while in company of others now at large, while armed with sticks and matchetes, attacked, wounded and left unconscious, Sulaiman Abubakar and Usman Abubakar who are security guards at Mangul Plaza Yahaya Madaki Way, Kofar Kaura Katsina, when you boggled and entered the shop of one Alh.

Babangida Ali at the same address where you took away different types of GSM Handsets valued at about the sum of Three Million Naira (N3 Million) and the sum of Three Hundred and Fifty Two Thousand Naira (N352,000.00) and you thereby committed an offence punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act CAP R11 LFN 2004. 2.

That you, (1) BABATUNDE ABUBAKAR ALIAS GIDIGO of Sabuwar Kofa Quarters Katsina, (2) SANI IDRIS ALIAS SHAMULOKE of Kofar Marusa Quarters, Katsina, (3) ABDULHADI SADIQ ALIAS BABA REZA of Kofar Marusa Quarters Katsina, (4) LAWAL ABUBAKAR ALIAS DAN LAWAL of Kofar Marusa Quarters and (5) IDRIS CIMAR ALIAS DAN IDI of Sabuwar Unguvva Koren Dorowa, Katsina, on or about the 11th day of October, 2012 at Mangul Plaza Yahaya Madaki Way, Kofar Kaura Katsina, attacked and beat one USMAN ABUBAKAR with sticks and cut him with matchetes, which resulted to his death, with the knowledge that death would be the probable consequence of your act, and you thereby committed the offence of culpable homicide punishable under Section 221 of the Penal Code.

​They all pleaded not guilty to the charges and the matter proceeded to trial. The Prosecution in proof of its case called ten witnesses and tendered some exhibits. At the end of trial, the trial Court held that the Appellant proved its case against the accused persons and they were all sentenced to death by hanging.

Aggrieved by his conviction and sentence, the Respondent appealed to the lower Court. At that Court, it was found that the confessional statements were wrongly admitted for failure to test its voluntariness at a trial within trial. The lower Court therefore expunged the Exhibits A and A1 from the Record, set aside the judgment of the trial Court and the Respondent was discharged and acquitted.

It is against the judgment of the lower Court that the Appellant has lodged an appeal to this Court.

My learned brother has eruditely dealt with the issues submitted for determination, and the arguments of Counsel therein. I need not repeat them.

This Court has, in a multiplicity of cases, held a trial within the trial, is ordered and conducted, where the voluntariness of the making of the statement by an accused person, is in issue or raised by an accused person. In other words, where an accused person admits making the statement, but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence, then a trial within trial, is conducted in order to determine whether the statement was voluntary or made by duress or otherwise.

When the trial Judge, is satisfied that the statement was voluntary, he then admits it as an exhibit in the evidence before the Court. See: Akpa v. State (2008) LPELR 368 (SC) State v. Sani (2018) LPELR 43598 (SC).

​My Lords, I think it is not out of place to restate the law on procedure of determining the voluntariness of confessional statement. Where in the course of criminal proceedings a confessional statement of an accused person is tendered in evidence by the prosecution and question is raised by the defence with regard to whether it was made or obtained voluntarily, the trial Court has a duty, and in fact MUST suspend the main trial and conduct a trial within trial to determine its voluntariness or otherwise.

At the end of the mini-trial, the trial Court must make up its mind in the light of the evidence adduced before it by both the prosecution and the defence, on whether such statement was voluntarily made by the accused or not. If its opinion, the statement in question was voluntarily made, it will admit it.

But if the trial Court finds that it was not voluntarily obtained, for instance there was slightest evidence of duress, force, promise, inducement or that trick was applied to the accused person, it will reject such statement and mark it so in its ruling and will proceed with the main trial, except that it will not act on it in its determination on the case.

But if on the other hand, the trial Court after conducting the trial within trial finds that the statement was voluntarily made by the accused, it will deliver its ruling admitting it and mark it so accordingly and then proceed with the main trial and it could later use or act on it in the determination of the case. See: COP v. Alozie (2017) LPELR 41983 (SC). I have carefully examined the record and note that when the extra-judicial statements were sought to be tendered, the Respondent’s objection was that they were made under duress and involuntarily made.

In that circumstances, the learned trial Judge is obliged to conduct a trial within trial to determine its voluntariness.

The consequence of the above is that the lower Court was on terra firm a when it expunged Exhibits A and A1 from the Record.

It is in view of these few comments and for the more detailed and elaborate reasons and the conclusion arrived at in the lead judgment of my learned brother, JOHN INYANG OKORO, JSC, that I also see no merit in this appeal It is hereby dismissed by me. Appeal is dismissed.

TIJJANI ABUBAKAR, J.S.C.: I had the privilege of reading in draft, the comprehensive leading judgment prepared and rendered in this appeal by my learned brother JOHN INYANG OKORO, JSC. I entirely agree that the appeal is frivolous and deserves to be dismissed. I also dismiss it and affirm the order of acquittal and discharge of the Respondent made by the lower Court.

Judgment

A lawyer has a duty to assist the Court in attaining justice but not to engage himself in client/witness tutoring, distortion of material facts and any other conduct which is unbecoming of a legal practitioner. See MAGNA MARITIME SERVICES LTD & ANOR V. OTEJU & ANOR (2005) LPELR-1817 (SC); BILLE V. STATE (2016) LPELR-40832 (SC); OWURU & ANOR V. ADIGWU & ANOR (2017) LPELR-42763 (SC).

PER ADAMU JAURO, J.S.C EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The charge defended by the Appellant alleges: That you NURA ALIYU of No. 110, Zamfarawa Road, Funtua, Funtua Local Government Area of Katsina State on or about the 11th day of August, 2006 around 08.00 hrs at Government Girls Secondary School Funtua in Funtua Local Government within the Funtua Judicial Division committed the offence of culpable homicide punishable with death by doing an act to wit: stabbing one Jamilu Yahaya with a knife on the head and stomach with knowledge that such is likely to cause death and it it did cause his death and you thereby committed an offence punishable under Section 221 of the Penal Code.

The charge was accompanied with the Proofs of Evidence. In the course of the trial, the prosecution, through the PW. 1, tendered in evidence, the confession of the Appellant, as the accused person, contained in Exhibits A and A1. The Appellant was represented by Counsel. The Counsel, after conferring with the Accused/Appellant, did not oppose or object to the confessional statement being admitted in evidence against the Defendant. Thus, the making and the voluntariness of the making of Exhibits A & A1, were seemingly no longer in issue.

Exhibit A is the Hausa version of the statement; while Exhibit A1 was the English version.

However at page 32, upon the statement read to the Defendant in open Court the Appellant, as the Defendant, retorted, by way of correction; That is not the correct statement I made. I actually used my shovel and not knife on the victim.

The voluntariness of the making of the confession, subject to the correction made by the Defendant, was at the trial Court, not in issue. Even when that was not an issue; the PW.2 at page 33 of the records was on hand to corroborate the PW.1 as to the voluntariness of the making of the confession in Exhibits A & A1.

He was not cross-examined on this aspect of his evidence. Facts not disputed and/or challenged are always taken as admitted and established.

However, in amazing desperation as it appears, the Appellant’s Counsel in paragraph 21 of the Appellant’s Brief submitted that – In spite of unequivocal challenge on (sic) the confessional statement by the Appellant, the trial Court held that the denial amounted to a corroborative evidence of the confessional statement, and that the “corroborated confessional statement” together with the testimonies of the PW.1 and PW.4 are sufficient proof that the Appellant caused the death of the deceased.

The lower Court also chose to align with the reasoning of the trial Court, by taking the view that there was no legitimate challenge to the confessional statement, and accordingly, the trial Court had no cause to seek corroborative evidence before relying on the confessional statement in convicting the accused person.

The lingua franca of the two Courts below is English Language. Page 32 of the records is the proceeding of the trial Court written in simple laconic English that would not take a final year pupil of a Primary School preparing for his Common Entrance to comprehend. Here is a lawyer, before us at the Supreme Court appearing not to understand very simple English Language. And it is not to his credit to insist that he has come before us merely to confuse issues and thus, pander to the beer parlour gossip or glib that the lawyer is he who turns black into white and vice versa.

This common man’s impression of the lawyer, though false, should of course be scandalous of us all lawyers!!

The Appellant’s lawyer is, like every lawyer, an officer of the Court enjoined not to do any act or conduct himself in any manner that will adversely affect the administration of justice. A deliberately mischievous distortion of facts, no doubt, is a conduct unbecoming which is not only capable of adversely affecting the administration of justice, but does actually affect the administration of justice. Every lawyer appearing in his professional capacity before a Court shall deal with the Court mostly candidly and fairly.

Rules 30 and 32 of the Rules of Professional Conduct for Legal Practitioners, 2007 should, and indeed, offer very basic precept to every lawyer called to the Nigerian Bar and enrolled in the Supreme Court after Law School. It is not palatable to call an officer of this Court a liar, as I am tempted to call the Appellant’s Counsel.

​My Lords, in open Court when Exhibits A & A1 were being proposed to the trial Court to be admitted in evidence as his confession to the alleged offence, the defence counsel, after due consultation, albeit briefly, informed the trial Court that they had no objection. Exhibits A & A1 were accordingly admitted in evidence unopposed. No issue of the confession being recorded involuntarily or oppressively (Section 29 of the Evidence Act, 2011) was raised. The PW.2, at page 33 of the record, further corroborated the PW.1, that confession (in Exhibits A & A1) was voluntarily recorded.

He was not challenged or cross-examined. I do not, in the circumstance, agree with the Appellant’s Counsel that the mere fact of the Appellant proceeding to correct the slip in the statement as to the offensive weapon used on the victim - that it is a shovel, and not a knife, amounted to retraction of the confession. It was not. In THE STATE v JAMES GWANGWAN (2015) 13 NWLR (pt. 1477) 600, Okoro, JSC, stated and I agree that a retraction means to say that something you had said earlier is not true or correct or that you did not mean it.

It is therefore not a retraction to correct a mere slip in the previous statement in order that the substance of the previous statement may be more meaningful. It is not the law that a retracted confessional statement ceases to have probative value. Where a statement is subsequently retracted, after it had been admitted in evidence, and it forming part of the prosecution’s case, the trial Court is bound to consider its probative value viz-a-viz the retraction: EGBOGHONOME v. THE STATE (1993) 7 NWLR (pt. 306) 383; EKPE v. THE STATE (1994) 9 NWLR (pt. 368) 263; LEGI MOHAMMED v.

THE STATE (2019) LPELR-46420 (SC). When a Defendant retracts his previous statement to the Police Investigators, duly recorded under caution (and subsequently proved to have been made voluntarily), in his testimony in open Court at his trial; his testimony is usually treated as unreliable having been effectively rebutted. In the instant case, the purported retraction was being skillfully crafted to fit into the rule in UMANI v.

THE STATE (1988) 1 NWLR (pt. 70) 270; (1988) 2 SC (pt. 1) 88 at 98 to the effect that when an extra-judicial statement is retracted by the alleged maker, both the statement and the testimony retracting it are advisedly taken as unreliable. I had earlier stated in this judgment that, notwithstanding the unwholesome antics of the Appellant’s Counsel, the purported retraction was not actually a retraction of his confession in Exhibits A & A1. The rules applicable to retracted statement will therefore not apply in the instant case.

Exhibits A & A1, are the confession of the Appellant made voluntarily. It was recorded by the PW. 1. The PW.2 corroborated the PW.1 that the Appellant voluntarily made the confession under caution. Apart from the defence not opposing its admissibility and admission in evidence; the Appellant further made corrections therein. In his subsequent defence testimony, as DW.1, the Appellant told the trial Court that “the police did not take (his) statement”. He was just flippantly enjoying the luxury of lie telling.

No eyewitness testified. The PW. 1, PW. 2 and PW. 3 were police crime investigators. The most material aspect of the evidence of PW. 1 and PW. 2 is that, the Appellant voluntarily confessed to the crime alleged and the confession was recorded in Exhibits A & A1. The evidence of the duo debunk the subsequent testimony of the Appellant that “the police did not take (his) statement”.

​The PW. 4 was the medical officer who conducted the post mortem examination on the body of the deceased victim of the Appellant. The PW.4 issued his report in Exhibit C. PW. 4, adumbrating on his post mortem report, averred “that a sharp object must have been used to inflict the wound on the victim”. There is no reasonable doubt about that. The Appellant himself, correcting the prosecution, stated that he “actually used (his) shovel and not knife on the victim”. The cause of death, as found in Exhibit C, is not in any doubt.

PW. 4 rushed the deceased “to the theatre for an emergency surgery” to save his life, but unfortunately he died before reaching the theatre. The PW. 4 described the injury thus - “The injury was a stab injury. It involved the biggest intestine – and one of the biggest blood vessels. The stab wound penetrated those parts I mentioned”

In this case, actus reus is not in dispute. Exhibits A & A1 juxtaposed with Exhibit C and PW. 4’s testimony that a human being, inflicted stab wound with a sharp instrument affecting the victim’s biggest intestine and the biggest blood vessels, died just before reaching the theatre for repair surgery. The Appellant admitted his responsibility for this act resulting in the death of his victim.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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At trial and in his defence, the Appellant had set up self-defence for the first time. The very fact of this defence is ordinarily, an admission of both the actus reus and the intention to kill his victim (the alleged assailant) for the purpose of saving his own life. Section 59 of the Penal Code provides that “nothing is an offence which is done in the lawful exercise of the right of private defence”. The right of private defence includes (under Section 60 of the same Penal Code) the right to defend one’s own body against any unwarranted offence affecting human body.

Where a Defendant at the bar sets up the defence of self- defence, the issue is whether he had any reasonable apprehension of grievous hurt to, or death of, himself: IHIM v. THE STATE (1991) 2 NWLR (pt. 172) 622 at 638; AKPAN v. THE STATE (1992) 6 NWLR (pt. 248) 439 at 470. This reasonable apprehension of imminent danger of death or grievous hurt to the Defendant pleading self-defence, thus justifying the appropriate defence measures he took to protect himself, is one of facts to be proved by the defence.

There is no such proof to the satisfaction of the trial Court and the defence was justifiably dismissed. The trial Court found, and I agree “that the defence of self-defence was raised by the learned counsel to the accused person in the written address”, and that “the accused (person) did not mention anything about it”. The cute answer to this, in my solidarity with the learned trial Judge, is in the words of Rhodes-Vivour, JSC, in SEGUN OGUNSANYA v.

THE STATE (2011) 12 NWLR (pt. 1261) 401; (2011) LPELR-2349 (SC) pp 47-48 “No amount of brilliant address or playing to the gallery by counsel can make up for evidence to prove or defend a case in Court. The main purpose of an address is to assist the Court, and is never a substitute for compelling evidence.” See also NIGER CONSTRUCTION LTD v. OKUGBENI (1987) 4 NWLR (pt. 67) 787 SC at 792; DONATUS NDU v. THE STATE (1990) LPELR-1975 (SC) at 22.

The defence at the trial Court failed to appreciate the significance of Sections 131(1), 132 and 135(3) of the Evidence Act, 2011 providing- 131. (1) whoever desires any Court to give judgment as to any legal right or reliability dependent on the existence of facts which he asserts shall prove that those facts exist.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

132. the burden of proof in a suit or proceeding lies on that person who would fail if evidence at all were given on either side. 135(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the defendant. I agree with the two Courts below, in their concurrent findings of fact, that the Appellant herein did not prove the defence of self-defence he had latched on to as the last straw.

Having failed in his justification for killing his victim, by the plea of the defence of self-defence, it does not lie in the mouth of the Appellant to say that the prosecution did not prove his intention to kill his victim, the deceased. Exhibits A & A1 in the circumstance stand tall, straight and resolute in attesting to his guilt. A Defendant at the Bar pleading the defence of self-defence takes risks in alternative. If the plea succeeds; he would have provided the justification in law for his criminal act or conduct.

When it fails; the Defendant would be taken to have admitted the allegation of criminal offence brought against him.

​Finally, I agree with the lower Court in its stance that intention to kill can be inferred from the manner the Defendant deployed and applied the offensive weapon to his victim. At page 167 of the record, the lower Court, per Abiru, JCA, stated and I endorse the statement to wit - “Thus, in EJEKA v. STATE (2003) 7 NWLR (pt. 819) 408, where the appellant stabbed the deceased with a jack knife at a fragile part of the body such as the heart, the Supreme Court held that this clearly explained that the appellant’s intention was to cause grievous injury to the deceased. Similarly, in Nwokearu V.

The State supra, where the appellant stabbed the deceased in the stomach with a knife, the Court of Appeal held that this showed an intention by the appellant to cause grievous harm to the deceased. In the instant case, the Appellant stabbed the Respondent in the stomach with a knife cutting through the deceased’s big intestines and the largest blood vessels in his body. This was an exhibition of a clear intention on the part of the Appellant to cause the death of the deceased.

The Appellant admitted this much in his confessional statement when he said “l know that a knife of any kind is capable of killing once it is used to stab somebody, especially when it is used on somebody’s stomach”

Substituting a shovel for knife, as the Appellant wanted the trial Court to believe, should even be more outrageous.

Since a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the alleged offence (Section 28 Evidence Act, 2011); the Defendant on his confession alone, once the confession unequivocally shows the direct and positive involvement of the Defendant in the alleged crime, can be convicted for the alleged offence confessed to: ODUA v. FRN (2002) 5 NWLR (pt. 761) 615; ALABI v. THE STATE (1993) 7 NWLR (pt. 307) 5; FABIYI v. THE STATE (2015) 6-7 SC (pt. 1) 83.

The Appellant has not shown any good and substantial reasons for this Court to interfere and/or disturb the concurrent findings that his guilt in the alleged culpable homicide punishable under Section 221 of the Penal Code of Katsina State had been established beyond reasonable doubt. The appeal, lacking in substance, is hereby dismissed in its entirety. The decision appealed is hereby affirmed. Appeal dismissed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with my learned brother, Ejembi Eko, JSC, in the judgment he just delivered and to underscore the support in the reasonings from which the decision came about, I shall make some remarks.

This appeal is against the judgment of the Court of Appeal, Kaduna Division or Court below or lower Court, Coram: Uwani Musa Abba Aji,.Abdu Aboki, JJCA (as they then were) and Habbe A.O. Abiru, delivered on the 8th day of December, 2015. In that decision, the lower Court upheld the decision of the High Court of Katsina delivered on 20th December, 2012 per Ibrahim M. Bako J. where the trial Court, found the appellant guilty of culpable homicide punishable under Section 221 of the Penal Code of Katsina and thereby sentenced the Appellant to death.

The background facts are well set out in the lead judgment and I shall not repeat them except circumstances warrant a reference to any part thereof.

On the 28th day of January, 2021 date of hearing, learned counsel for the Appellant, Mark Mordi Esq. adopted the brief of argument filed on 4/4/2018 and deemed filed on the 9/1/2019 and a reply brief filed on 26/1/2021 and deemed filed on 28/1/2021. He formulated two issue for determination, viz:- I.

Having regards to the entire circumstances of this case, whether the lower Court was right when it upheld the decision of the trial Court and in holding that the trial Court rightly relied on the Appellant’s Confessional Statements in convicting the Appellant? (distilled from Grounds 1 and 2 of the Notice of Appeal). II. Whether the lower Court was right when it held that the Respondent had proved the charge of culpable homicide punishable with death against the Appellant beyond reasonable doubt? (distilled from Ground 2 and 3 of the Notice of Appeal).

Learned Director, Civil Litigation of the Ministry of Justice Katsina State, Abdurrahman Umaru for the Respondent, adopted the brief of argument filed on 10/3/2020 and deemed filed on 28/1/2021 and equally adopted the issues distilled by the appellant.

I see issue 2 as sufficient in the determination of the appeal.

ISSUE 2 Whether the lower Court was right when it held that the respondent had proved the charge of culpable homicide punishable with death against the Appellant beyond reasonable doubt.

Canvassing the stance of the Appellant, learned counsel contended that there was no doubt from the evidence that a person known as Jamilu Yahaya is dead but the question that arises is, if from the entire circumstances of the case, the prosecution had satisfactorily established by evidence that Appellant caused the death of the deceased and the answer is in the negative.

That the Appellant denied the confessional statement which the trial Court relied on, instead of properly evaluating the statement and this was fatal to the case of the prosecution. He cited Queen v Itule (1961) All NLR 462 etc.

It was further submitted for the Appellant that the evidence of PW.1 was hearsay and so of no effect. That there was no corroborative evidence with the alleged confessional statement as attended to by the Court below. He cited Iko v State (2001) 14. NWLR (pt. 732) 240-241 etc.

That the evidence of PW.1 and PW4 were not sufficient circumstantial evidence capable of corroborating the confessional statements in proving that indeed the Appellant caused the death of the deceased, Jamilu Yahaya.

​It was advanced in argument by the Appellant that the prosecution had not discharged the burden of proof beyond reasonable doubt as required by law and so the Appellant should be discharged. He referred to Abdullahi v State (2008) All FWLR (pt.432) 1047.

That the Appellant’s challenge of the confessional statement affected the probative value that should be attached to the knife and the medical report.

In response, learned counsel for the Respondent contended that the trial Court was right to have relied on the confessional statement of the Appellant in his conviction. He cited Olabode v State (2009) 5 MJSC (pt.ll) 83 at 104-105 etc.

That the confessional statement alone was sufficient without corroboration to secure the conviction even though the trial Court had seen corroboration from other pieces of evidence and the prosecution proved the ingredients of the offence beyond reasonable doubt.

The case of the Respondent was that the Appellant on the 11th August, 2006, stabbed one Jamilu Yahaya on his head and stomach with a knife resulting to the death which act is an offence punishable under Section 221 of the Penal Code. At the trial, the Respondent called four witnesses and tendered 4 exhibits while the Appellant testified as a sole witness for the defence and tendered no exhibits.

The trial Court convicted the accused/appellant and sentenced him to death and that was affirmed by the Court below on appeal and this, upon a reliance on the confessional statements – Exhibits A and A1 in which Appellant confessed to killing the deceased. This confessional statement was reaffirmed by the Appellant when Exhibit A was read in open Court and he informed the trial Court that he used a shovel and not a knife to stab the deceased.

At this point, it needs be stated that a confessional statement made by an accused person and properly admitted without objection as in this case is the best guide to the truth of the role played by him and upon which alone the Court can convict. See Olabode v State (2009) 5 MJSC (pt.11) 83 at 104-105.

The Appellant contends that his statement that he used a shovel and not a knife on the deceased is a retraction of his confessional statement and so, the two Courts were in error in convicting him based on the confessional statement. On this, it has to be said that, it is trite in law that a Court can convict on the confessional statement of an accused person regardless of the fact that the accused resiled from it or retracted from it or retracted all together at the trial.

In this instance, the retraction was not at the earliest opportunity such as when the statements were tendered but at the defence stage when the Appellant was testifying. Also, assuming even that the retraction was early, it does not affect the admissibility of the statement but puts the Court on notice on the weight to be attached and possibly the need for corroboration of the contents of the confession. See Akeem v State (2017) 18 NWLR (pt.1597) 340-341; FRN v lweka (2013) 3 NWLR (pt.1341) 285 at 336.

I see no reason to fault what the lower Court observed seen at page 103 of the record, when that Court stated thus: “It is a settled principle in criminal litigation that, where a confessional statement of an accused defendant is tendered in evidence without any objection or protest from the accused, the confessional statement will be deemed to have been made voluntarily and its contents will be deemed true”. The Court below relied on the cases of Osung v State (2012) 18 NWLR (pt.1332) 256; Ajibade v State (2013) 6 N WLR (pt. 1349) 25 at 44; Stephen v State (2013) 8 NWLR (pt.1355) 153 at 173.

Indeed, it is at the stage of tendering that objection to admissibility of accused’s statement can be made and where it is made thereafter as in the case at hand, it is treated as an afterthought. See Ehot v State (1993) 5 SCNJ 65 at 91. The Appellant did not retract the making of his confessional statement at the earliest opportunity of tendering it, but only raised in the course of the trial that he used a shovel and not a knife to attack the deceased. The later statement of the Appellant is not a retraction but an affirmation of his guilt of causing the death of the deceased.

His statement is admission of guilt which carries no less weight than a written statement. See the Supreme Court case of F.R.N. VS IWEKA (2013) 3 NWLR PT. 1341, P. 25 AT 336 PARAS C-D.

Where the accused’s later statement is a denial of guilt, the law is that where an accused Defendant does not challenge the making of his confessional statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the confessional statement upheld unless a satisfactory explanation of this inconsistency is proffered.

This is as rightly observed by the lower Court at page 104 of the printed records relying on the case of Gabriel v State (1989) 5 NWLR (pt. 122) 457; Ogoala v State (1991)2 NWLR (pt. 175) 509; Egboghonome v State (1993) 7 NWLR (pt. 306) 383; Oladotun v State (2010) 15 NWLR (pt.1217) 490; FRN v lweka (2013) 3 NWLR (pt. 1342) 285; Osuagwu v State (2013) 5 NWLR (pt.1347) 360

It is the contention of the Appellant in page 12 to 19 of his brief that exhibits A and A1 are not corroborated and that the evidence of pw1 and pw4 which the lower Court relied upon as corroborative evidence, are not sufficient in corroborating the confessional statement to the effect that the Appellant caused the death of the deceased. On this, it has to be pointed out that with or without corroboration, the Court was at liberty to convict the Appellant on his confessional statement even if it is retracted.

See F.R.N VS IWEKA (SUPRA) at PG 336 PARAS A-C. ​Therefore, a confession alone is sufficient without corroboration as there is no evidence stronger than the person’s own admission or confession. See IKPO VS STATE (2016) 10 NWLR PT 1521 SC 501 AT 530 G-H. Even where there is desirability for corroboration, an evidence, no matter how slight of circumstances which makes it possible that the confession is true, is sufficient. See SULE VS STATE (2014) 14 NWLR PT 1420 SC 65 AT 88 PARAS F-G, PG 90-91 PARAS H-A.

The law is trite as established by the Supreme Court that corroboration need not consist of direct evidence that the accused person committed the offence nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respect material to the charge. See OGUNBAYO VS STATE (2007) 8 NWLR PT 1035, PG SC 157 AT 178 PAR E, 179 PARAS A-B.

The lower Court rightly acted and relied on exhibit A and A1 alongside other corroborative evidences to affirm the conviction of the Appellant by the trial Court.

​The Court below was correct in going along with what the trial Court did in the reliance placed on the confessional statement in the conviction of the Appellant.

The Appellant contends under this issue that the Respondent did not prove the second ingredient of Culpable Homicide, that the Appellant caused the death of one “JAMILU YAHAYA” as none of the prosecution’s witnesses actually saw the Appellant kill the deceased, there was no eyewitness and none of the labourers that actually witnessed the incident and told PW 1 were called to testify.

I am aware of the fact and position of the law that the onus of proving an offence beyond reasonable doubt is always on the prosecution and never shifts, this onus was successfully discharged by the Respondent at the trial Court.

Although, none of the eyewitnesses that witnessed the killing of the deceased by the Appellant testified, the evidence adduced by the Respondent before the trial Court was overwhelming, convincing and direct to the guilt of the Appellant.

It is trite that an offence can be proved by either or all of the following ways: (a) Evidence by eyewitness; or (b) The confession of the accused; or (c) Circumstantial evidence See IGRI VS STATE (2012) 16 NWLR PT. 1327 PG 522 AT 541 PARAS B-C

​The fact that the Appellant caused the death of the deceased and other ingredients of the offence were as rightly observed by the two lower Courts, proved beyond reasonable doubt through the confessional statement of the Appellant admitted as exhibit A and A1 and other independent corroborative evidences, particularly the evidence of PW 1 and PW4 which circumstantially linked the Appellant with the death of the deceased.

In a long line of judicial authorities of the Apex Court, proof beyond reasonable doubt means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence. I shall cite just one, Oseni v The State (2012)5 NWLR (pt.1293)SC 351 at 388.

The Appellant had confessed to the commission of the offence in exhibit A and A1 and there is no evidence stronger than a person’s own admission or confession. See Ikpo v The State (2016) 10 NWLR (pt.1521) 501 at 530.

The burden on the prosecution to prove the offence against the Appellant beyond reasonable doubt does not translate to proof beyond the shadow of all doubt or proof to the hilt. Clearly, the prosecution has discharged the burden of proof beyond reasonable doubt as expected by the law. See Bolanle v State (2009) 15 NWLR (pt. 1172)1 at 10-11; Jua v State (2010) 9 NWLR (pt.1184) 243.

Clearly, there is no basis for this Court to interfere with the well grounded findings of the two Courts below and the ultimate conclusion reached. This appeal has no merit and I dismiss it.

I abide by the consequential orders made. Appeal Dismissed.

JOHN INYANG OKORO, J.S.C.: I have had the privilege of reading the draft of the lead judgment just delivered by my learned brother, Ejembi Eko, JSC and I entirely agree with his reasoning and the conclusion reached therein that this appeal has no merit and deserves to be dismissed. Though, I have no hesitation equally dismissing the appeal, I shall proffer a few comments of my own in support of the judgment.

I am of the view that the argument of learned Counsel for the Appellant in the main is, whether the Court below was right to affirm the conviction and sentence of the Appellant based on his retracted confessional statement. My simple and direct response to the poser is in the affirmative.

​It is now settled that criminal guilt of an accused person could be established either by confessional statement of the accused person, circumstantial evidence or evidence of an eyewitness otherwise known as direct evidence. See Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; Edamine v. The State (1996) 3 NWLR (Pt. 438) 350.

When it comes to admissibility and reliance on confessional statement to ground conviction, the Court must be satisfied that the statement was freely and voluntarily made. A retraction of confessional statement does not in any way affect its admissibility as long as there are other factors outside the confession pointing to its truthfulness. The Court is only obligated to consider the weight to be attached to the statement in view of the guidelines for assessing its truthfulness. See COP v. Alozie (2017) 7 NWLR (Pt. 1565) 368; Osetola v. State (2012) 17 NWLR (Pt. 1327) 251; Musa v.

State (2017) 5 NWLR (Pt. 1557) 43.

​In the instant case, the Appellant never retracted or resiled from his confessional statement as erroneously argued by his counsel. He only made a correction on the statement with respect to the exact weapon he used in killing the deceased. He substituted shovel for knife. He pleaded self-defence but never retracted the statement. Needless to say that the statement was admitted without objection, clearing the path for the Court to only consider his plea of self-defence.

The Appellant’s plea of self-defence having failed, the learned trial Judge was safe to rely on his confessional statement to convict him. It is for this reason and fuller reasons advanced in the lead judgment that I also dismiss the appeal. I abide by the orders made in the lead judgment. Appeal Dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice Ejembi Eko, JSC, has accorded me the privilege of reading, before now, the draft of the judgment just delivered. I concur with reasoning and conclusion reached therein, to the conclusive effect that the instant appeal is grossly devoid of merits, thus ought to be dismissed by this Court. It is indeed my honour and privilege, to adopt the reasoning and conclusion in question as mine.

​In the instant case, Exhibit A1 (the Appellant’s confessional statement) is to the effect, inter alia, that while at the scene of the crime (Government Girls’ Secondary School, Funtua, Katsina State), the Appellant was abused by the deceased person. Allegedly, the deceased person also hit the Appellant on his back and hand with a shovel.

According to the Appellant, it was: “At that point I brought out a knife from my waist and stabbed him twice on his head. The third one I stabbed him on the stomach and he fell down. From there I took to my heels to escape but the remaining labourers ran after me stoning me and got me arrested.”

It was the apt findings of the trial Court (page 57 of the printed record): “That was why when PW 1 reached the scene after a report had been made to the police station, he met the other labourers holding the accused person while Jamilu Yahaya (the deceased) was on the ground in a pool of blood. “This statement (Exhibits A & A1) is clearly consistent with other facts that have been established in the testimonies of the prosecution witnesses. ” This also clearly prove that the accused person is responsible for the death of Jamilu Yahaya.

That he stabbed him in the stomach intentionally and with the knowledge that death of Jamilu Yahaya was the probable and not only likely consequence of the act of stabbing.”

On the part thereof, the Court below, in a not so dissimilar passion, made some far-reaching findings to the following effect: The records of appeal shows that the lower Court made a finding in the judgment that the confessional statement of the Appellant was freely and voluntarily made was direct, positive and unequivocal.

This finding was not challenged on this appeal. … This Court, in the circumstances, fault the finding of the lower Court that the testimonies of the first and fourth prosecution witnesses constituted corroborative evidence proving the veracity of the contents of the confessional statement. The law is that a conviction can be sustained solely on such a confessional statement, even where it is retracted by the accused/defendant - Solola Vs. State (2005) 11 NWLR (Pt. 937) 460. The Respondent thus led credible evidence before the lower Court to sustain the charge against the Appellant. ….

This appeal lacks merit and it is hereby dismissed. The judgment of the High Court of Katsina State in charge No. KHT/FT/7C/2007 delivered by Honourable Justice Ibrahim M. Bako on the 20th of December, 2012 and the sentenced (sic) passed on the Appellant therein are hereby affirmed. These shall be the orders of this Court.

Most undoubtedly, the findings of the two Courts below, tantamount to what is jurisprudentially known as concurrent findings. Yet, it has been the consistent practice of this Court not to disturb concurrent findings of fact of the two Courts below, provided they are neither assailable nor perverse. See OBI I. EZEWANI VS. OBI ONWORDI (1986) 4 NWLR (Pt. 33) 27; NBC LTD VS. NGONADI (1985) 5 SC 317 @ 319; (1985) 1 NWLR (Pt. 4) 739; WOLUCHEM VS. GUDI (1981) 5 SC 291.

In essence, the doctrine is well settled, that where there is sufficient evidence to back up concurrent findings of facts by both lower Courts, such unassailable findings ought not to be disturbed. Of course, the exception to the general rule is where it is so apparent there is a substantial error on the record, thus rendering the entirety of the findings perverse, thereby occasioning some miscarriage of justice or material breach of 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) @ 25-26 paragraphs G-B; NASAMU VS. THE STATE (1979) 6-9 SC 153.

As aptly postulated by my learned brother, Eko, JSC @ page 18 (lines 10-14) of the leading judgment: ‘The Appellant has not shown any good and substantial reasons for this Court to interfere and/or disturb the concurrent findings that his guilt in the alleged culpable homicide punishable under Section 221 of the Penal Code of Katsina State had been established beyond reasonable doubt.”

That being the case, therefore, the instant appeal is grossly lacking in merits, and liable to be dismissed.

The appeal is accordingly hereby dismissed by me in the entirety thereof.

ADAMU JAURO, J.S.C.: I read in draft, the lead judgment of my learned brother, Ejembi Eko, JSC just delivered. I am in agreement with the decision and the conclusion contained therein.

​The issues raised in the instant appeal have been sufficiently dealt with by my learned brother in the lead judgment just delivered. I however wish to add that every counsel is an officer in the temple of justice. Being desperate to win a case at all cost is a preposterous act that should not be exhibited by a counsel in the temple of justice. A lawyer has a duty to assist the Court in attaining justice but not to engage himself in client/witness tutoring, distortion of material facts and any other conduct which is unbecoming of a legal practitioner. See MAGNA MARITIME SERVICES LTD & ANOR V.

OTEJU & ANOR (2005) LPELR-1817 (SC); BILLE V. STATE (2016) LPELR-40832 (SC); OWURU & ANOR V. ADIGWU & ANOR (2017) LPELR-42763 (SC).

Touching on the merit of the appeal, I wish to add that after the Appellant stated in his confessional statement that that he killed the deceased with a knife, what difference does it make to his case to state in his trial that he indeed used a shovel on the deceased? The ingredients that the deceased died and that it was the act of the Appellant that caused his death have been admitted by the Appellant. On the last ingredient for the offence of culpable homicide punishable with death, which is that the act of the Appellant was intentional.

The Appellant’s defence of self-defence could not have availed him because, such defence was only brought up for the first time during the address stage. No evidence was led by the Appellant to substantiate the defence and the trial Court was right to have discountenanced same and proceeded to convict the Appellant for the offence charged.

​On the whole, the Appellant in this appeal failed to demonstrate that the concurrent findings of the two Courts below are perverse or not based on evidence before the Court. I too, hold that the appeal lacks merit. Same is equally dismissed.

Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Kaduna Division or lower Court or Court below, Coram: Adewale O. Abiru, Oladotun A. Adefope-Okojie and Amina Audi Wambai JJCA on the 26th day of February, 2016 dismissing the Appellant’s appeal and affirming the conviction and sentence of the Appellant and his co-accused person per G.I. Kurada J.

FACTS BRIEFLY STATED The appellant as the 1st accused was arraigned alongside two other accused persons before the trial Court on the 4th day of November, 2008, charged with criminal conspiracy and culpable homicide punishable with Sections 97 and 221 of the Penal Code Law respectively, to which he pleaded not guilty.

The Respondent in its efforts to prove its case against the Appellant and the other accused persons, called five (5) witnesses who testified as PW1 to PW5, and it tendered in evidence several documents which were admitted in evidence, amongst which are the extra-judicial confessional statements of the Appellant which were admitted and marked as Exhibits 3, 3A and 5. It is worthy to note, that the confessional statements of the Appellant Exhibit 3, 3A and 5 were admitted in evidence through PW4 and PW5 without objection from the Appellant or his counsel.

The Appellant testified as DW1 in his defence and called no other witness. After the close of the respective parties’ cases, their counsel addressed the Court, and in a considered judgment, the learned trial Court found and held, that the Respondent had proved beyond reasonable doubt that the Appellant was guilty of the said offences of criminal conspiracy and culpable homicide not punishable with death.

It therefore convicted the Appellant of the said offences of criminal conspiracy and culpable homicide not punishable with death and sentenced him to one (1) year imprisonment on Count 1 dealing with criminal conspiracy and five (5) years for the offences of culpable homicide not punishable with death, both sentences to run concurrently.

The Appellant being dissatisfied with the judgment of the trial Court, appealed against the same to the Court below via his Notice of Appeal dated and filed on the 17th day of May, 2011, containing ten (10) grounds of appeal.

​In accordance with the rules and practices of the Court below, the parties filed and exchanged their respective Briefs of Argument which they duly adopted at the hearing of the appeal on 26th January 2016.

The Court below dismissed the appeal and further dissatisfied Appellant has come before the Supreme Court upon a Notice of Appeal containing five (5) grounds.

On the 3/2/2022 date of hearing, learned counsel for the Appellant Paulyn O. Abhulimen Esq. adopted the further amended Appellant’s brief of argument filed on 16/6/2021 and deemed filed on 2/12/2021. In the brief, learned counsel raised two issues for determination, which are as follows:- i.

Whether there were sufficient, cogent and credible evidence of conspiracy and culpable homicide not punishable with death under Section 222(7) of the Penal Code law of Kaduna State which warranted a substitution of conviction for conspiracy and culpable homicide not punishable with death instead of an outright acquittal and discharge of the accused persons?’ (Grounds 1, 2, and 5) ii.

Whether the Court below was right when it affirmed the decision of the trial Court that the prosecution proved the offences preferred against the Appellant beyond reasonable doubt as required by law. (Grounds 3 & 4).

Learned counsel for the Respondent, Biola Oyebanji Esq adopted the amended Respondent’s brief of argument, filed on 25/11/2021 and deemed filed on 3/2/2022. In the brief was formulated a single issue, thus: Whether or not from the totality of the facts and law, the lower Court was justified to have found the appellant culpable and thereby convicting him of a lesser offence than the one he was actually charged with (Distilled from all grounds of the Notice of Appeal)

The sole issue of the Respondent seems to me to cover the field and I shall make use of it in the determination of the appeal.

SOLE ISSUE Whether or not from the totality of the facts and law, the lower Court was justified to have found the appellant culpable and thereby convicted him of a lesser offence than the one he was actually charged with. Advancing arguments for the Appellant, learned counsel stated that the two Courts below failed to adequately consider whether the standard of proof for culpable homicide not punishable with death under Section 222 (7) of the Penal Code Law of Kaduna State was attained before convicting the Appellant.

That there was no intention to kill the deceased and the conviction based on speculation, should fail. He cited Archibong v ITA (2004) 2 NWLR (pt.858) 590 at 597 etc.

He submitted further that from the available facts of this case, the scuffle leading to the death of the deceased was instigated by the deceased and the force applied by the Appellant on the deceased was not disproportionate to what the Appellant and his co-accused claimed the deceased did to them. That the defence of self defence or provocation availed the Appellant. He cited Uwaekweghinya v The State (2005) 9 NWLR (pt.930) 227 at 285.

For the Appellant, it was contended that the learned trial Judge raised a point suo motu that the evidence of the prosecution only revealed a case of a rash act by the 1st and 2nd accused and he did not give the Appellant the opportunity to be heard on that issue. The implication is that there was a lack of fair hearing. He cited Dickson Moses v The State (2006) All FWLR (pt.322) 143 at 1477.

It was submitted for the Appellant that before he could be convicted of a lesser offence as was the case in this instance, the Appellant ought to have been called to address the Court in that regard. She cited Okey Uzoho & 4 Ors v National Council on Privatisation & Anor (2007) All FWLR (pt.394) 370 at 387.

That the Court below failed to evaluate the facts and evidence as challenged by the Appellant and so fell into the same error as the trial Court. It was cited Action Congress of Nigeria v Lamido (2012) 8 NWLR (pt. 1303) 560; Dawodu & Ors v Ologundudu & 5 Ors (1986) 4 NWLR (pt.33)104 at 115-116.

Learned counsel for the Respondent submitted that the trial Court having found the Appellant guilty of the lesser offence of culpable homicide not punishable with death, went on to consider if the ingredients of the offence of conspiracy had been proved and it so found that by the confessional statement of the Appellant and his evidence the Respondent had proved the count of criminal conspiracy.

That the Appellant had not challenged the findings of the trial Court at the Court below and so those findings stood.

​That the defence of self defence or provocation did not enure in favour of the Appellant and that the Respondent proved the offences charged beyond reasonable doubt.

RESOLUTION: As a starter, I need to restate the often quoted principle that in all criminal trials, the onus of proving the guilt of any accused person over the commission of a crime lies on the prosecution and that duty gets to the prosecution establishing its case beyond reasonable doubt which is not akin to proof beyond all shadow of doubt. This requirement is achieved by ensuring that all necessary and vital essential elements of the charge are proved by evidence. See Okoro JSC in The State v James Gwangwan (2015) 13 NWLR (pt.1477) 600 at 621; Yongo v.

Commissioner of Police (192) LPELR-3528 (SC), (1992) 4 SCNJ 113; (1992) 8 NWLR (Pt.257) 36; Ogundiyan v. State (1991) LPELR-2333 (SC); (1991) 3 NWLR (Pt.181) 519; Alonge v. IGP (1959) 4 FSC 203; (1959) SCNLR 516; Babuga v State (1996) LPELR-701 (SC); (1996) 7 NWLR (Pt.460) 279. See also the case of MOHAMMED IBRAHIM vs THE STATE (2015) 11 NWLR (Pt.1469) 164 at 192.

​The Appellant in the instant appeal was arraigned before the trial Court on charges of criminal conspiracy and culpable homicide punishable with death, contrary to Sections 97 and 221 of the Penal Code Law.

The trial Court after taking evidence from the prosecution’s witnesses and the Appellant who testified in his own defence and the other accused persons, found the Appellant guilty of criminal conspiracy and the lesser offence of culpable homicide not punishable with death, pursuant to the powers granted to the Court under Section 218(2) of the Criminal Procedure Code Law, having held that the prosecution proved beyond reasonable doubt that the Appellant committed the said offences.

The trial Court in its judgment held pertaining to culpable homicide punishable with death, with which the Appellant was charged in count 2 thus: “The Accused simply acted rashly. I hold that the evidence of the prosecution has only revealed a case of a rash act by the 1st and 2nd accused.

And by Section 218(2) of the Criminal Procedure Code; (2) Where a person is charged with the offence and facts are proved which reduced it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it ” I accordingly find the 1st and 2nd Accused persons guilty of causing the death of Mallam Makama Adamu by a rash act and I hereby convict each of them for culpable homicide not punishable with death under Section 224 of the Penal Code.”

The trial Court stated further as follows: “By Exhibit 3, 3A and 4 and 4A, the 1st and 2nd Accused decided to go to the deceased’s house to ask him why he burnt their farm. They went to the house. They asked the deceased and because the deceased said he was not going to answer them, the two of them jointly beat him. That they left their house together with a common purpose of going to ask the deceased cannot be said to be an agreement to go and beat the deceased.

However, by jointly beating the deceased even when he tried to leave them and enter his house but they held and dragged him back and beat him, an agreement to beat the deceased can be and it is inferred therefrom by me. The 1st and 2nd accused’s at that point agreed to beat the deceased and their act was illegal. I hold that the prosecution has proved conspiracy or agreement by the 1st and 2nd Accused to beat the deceased and which act resulted in the death of the deceased.

I find the 1st and 2nd Accused guilty of Count one of the charge and I accordingly convict each of them of criminal conspiracy to commit culpable homicide not punishable with death under Section 97 of the Penal Code.”

The guides as provided in a large number of decided cases that in all criminal trials, the guilt of an accused person for the commission of an offence can be established by any one or more of the following methods or ways:- 1. By eye witness evidence. 2. By a free and voluntary confessional statement of the accused person; and 3. By circumstantial evidence. Reference is made to the following cases: 1. SUNDAY UDOR vs. STATE (2014) 12 NWLR (Pt.1422) 548 at 561 para B 2. AKEEM AGBOOLA vs THE STATE (2013) 11 NWLR (Pti366) 619 at 648 paras A-C 3.

EMEKA vs STATE (2002) 14 NWLR (Pt.734) 666 at 683 pars G-H.

By virtue of the provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and that of Section 135 of the Evidence Act, the onus of proving the commission of the offences alleged against the Appellant, lies on the prosecution in this case represented by the Respondent, more so, the Appellant having pleaded not guilty to the two counts against him.

It therefore clearly lies at the door of the Respondent to prove all the ingredients of the offences with which the Appellant was charged in respect to the counts of criminal conspiracy and culpable homicide punishable with death.

In the quest to prove the offences charged, the Respondent relied on the eye witness evidence of PW1, John Aruwa whose evidence and that of DW3 Amuenza Likita Micheal whose evidence in addition to the confessional statements of the Appellant which were admitted in evidence without objection and marked as Exhibits 3 and 3A.

​As stated earlier, the extra-judicial confessional statements of the Appellant were admitted in evidence without objection and since the said statements are confessional in nature, they are relevant and having been voluntarily made, they are admissible and having been so admitted, the Court was entitled to accord them full weight and consideration in the determination of whether the Appellant is guilty of the offences he was charged with.

The trial Court was therefore perfectly in order when it found the Appellant guilty of the lesser offence of culpable homicide not punishable with death pursuant to the provisions of Section 218(2) of the Criminal Procedure Code having found that there was no intention to kill the deceased, but that the Appellant acted rashly and his action led to the death of the deceased.

The trial Court having found the Appellant guilty of the lesser offence of culpable homicide not punishable with death, went on to consider if the ingredients for the offence of criminal conspiracy had been proved and it soundly found, that by the confessional statements of the Appellant and his evidence in Court in his defence, the Respondent had proven the count of criminal conspiracy.

The Court below in its judgment noted that the trial Court in its judgment dealt first with the substantive offence of which the Appellant was convicted which is culpable homicide not punishable with death, before going back to see if the offence of criminal conspiracy, was proved beyond reasonable doubt.

The Court below in making its decision put down the ingredients of the offence of culpable homicide not punishable with death as follows:- i. That the deceased died; ii. That the death of the deceased resulted from the voluntary acts of the defendant; iii. That the act of the defendant resulting in the death of the deceased was unlawful, rash or negligent; and iv. That in the circumstances of the case, the act of the defendant was not such to amount to culpable homicide punishable with death.

The lower Court stated that though the beating was an unlawful and rash act but could not amount to culpable homicide punishable with death. The Court below held that the Appellant did not challenge these findings of fact and therefore the law presumes him as having accepted those findings, and are thus bound by them. The Appellant still did not challenge the same firm holding in this appeal. As such by the failure of non-challenge to those findings of the Court below, and by several decisions of this Court, the Appellant is bound by those findings.

I refer to the case of ALHAJI TSOHO AMALE VS SOKOTO LOCAL GOVT. & ORS (2012) 5 NWLR (Pt.1291) 181 at 197-198.

The submissions of the Appellant on rash action hold no water in that, inferable from all the submissions is that there was no preconceived position taken by the Appellant to kill, but however death still occurred by the beating of the deceased. This act of inflicting blows on the deceased by the two accused was found by the concurrent judgments to be rash acts. The challenge by the appellant that the decision was speculative was informed by the fact that the hospital was negligent by not administering proper medical care.

This contention is more speculative than what the Appellant alludes to the Court in respect to the fact that no head scanning was undertaken to determine the justification of the finding by the Courts that the death was due to head injury.

For a fact, both at trial and appeal to the lower Court, the Appellant did not destroy the above finding nor did he, as he had the right to, call another contradictory testimony of another doctor to establish that the above finding was unproved, unjustified and medically impossible. All the suppositions of the deceased having a speculative high blood pressure, hemorrhagic disease were not established by the Appellant. In this instance, the facts before the Court being well established as to the cause of death resulting from running blows on the head of the deceased.

That made the production of the medical report within the sphere of abundance of caution but not necessary.

The conclusion reached that the cause of death was as a result of bleeding from the orifice was not dislodged and remained sacrosanct. The onus shifted back to the Appellant to produce alternative medical evidence to contradict the documented one, in default of which the concurrent findings had not been contradicted to establish any doubt from which the Appellant could benefit. Medical report is not a sine qua non to establish the guilt of the Appellant when there was other evidence.

Suffice to state that non-production of medical report or the absence of the medical personnel is not mandatory, in this appeal, when the cause of death is already known. It is not the law that a hard object must be proved to have been used to inflict the grievous bodily harm as contended by the appellant.

​The Courts have severally held that, in order to prove a charge of culpable homicide not punishable with death or manslaughter, there is no need to prove that there was an intention to cause death or to kill the deceased person, for indeed, it is the very absence of the intention to kill or cause death, that reduced the offence from culpable homicide punishable with death to manslaughter.

Reference was made to the case of STATE vs BOKA (1982) 1 NCR 85 at page 93 where Karibi Whyte, JCA (as he then was) held thus: “It would seem to me on the concepts of “rash” or “negligent” act used in Section 222(7) that the offence is committed where there is no intention to cause death and no knowledge that the act done would, in all probability, cause death.

The act complained of must be done without any criminal intent, the relevant considerations being the “rashness” or “negligence” of the act, These, or one of them alone, being the essential ingredients of liability, it would seem sufficient if the act complained of is the direct cause of death.” I am persuaded to rely on the case of EMMANUEL AYO vs. THE STATE (2015) 16 NWLR (Pt.1486) 531 at 546-547 the Court of Appeal per Abiriyi, JCA held thus:- “The death must be caused by the unlawful act of the accused person.

It must be proved not merely that act of the accused person could have caused the death of the deceased but that it did. See Apugo v. State (2006) 15 NWLR (pt.1002) 227, and R v. Oledinma (1940) 2 WACA 202.” See also the cases of: 1. CHARLES EGBIRIKA vs THE STATE (2014) 4 NWLR (Pt.1398) 558 at pages 578, 579 paras G-A and 580 para A. 2. SHINA OKETAOLEGUN vs THE STATE (2015) 13 NWLR (Pt.1477) 538 at page 560 paras B-F.

The Court below at page 188 of the records in its judgment after reviewing the contentions of the Appellant in his Brief before the Court, held thus at pages 188-189: “Thus, to sustain a charge of culpable homicide not punishable with death, it is sufficient if the Respondent proved that the said act of the Appellant was unlawful, and reckless without due regard or consideration for its consequences and/or that it was negligent – STATE VS BELLO AYINDE (1976-1977) NNLR 38, BABALOLA VS STATE AYINDE (1978-1979) NNLR 31, ADAMU VS STATE (2014) LPELR – CA/K/373/C/2013.

The respondent led cogent evidence to prove, in the instant case, that the action of the Appellant in beating the deceased in such a manner as to cause death was rash or non-consideration for its consequences.”

​The Appellant has contended, that the Court below was wrong in affirming the judgment of the trial Court when it failed to consider the defence that enured to the Appellant, which defence was that of self defence before the Court concluded on non-availability of same to the Appellant, the trial Court having held that the Appellant and his co-accused had no intention to kill the deceased when they beat him, as such should not have convicted him for culpable homicide not punishable with death.

The Appellant was wrong in that posture as the trial Court in its judgment considered in great detail the defence of self defence and held that, the same was unavailable to the Appellant. The Court below on its part, as an appellate Court, considered the complaint of the Appellant raised in his appeal, nowhere in the Appellant’s Brief of Argument was an issue raised challenging a failure by the trial Court to consider the defence of self defence raised at the trial.

The Appellant having failed to challenge the finding by the trial Court that he was not acting in self defence when they beat up the deceased and prevented him from entering his house, the Appellant must be taken as having accepted that finding, and the Court below lacked the jurisdiction to look into the issue.

With reference to the offence of conspiracy to commit culpable homicide not punishable with death for which the Appellant was also convicted and sentenced and the Court of Appeal affirmed. It has to be stated albeit for the umpteenth time that the Courts have in a long time of judicial authorities held that the offence of conspiracy in the absence of an express agreement between the parties can be inferred from the criminal acts of the parties, including the act of complicity and the attainment of a common end or goal.

I shall cite as guide some of the dicta of my learned brother hereunder:- In the case of IDOWU OKANLAWON vs THE STATE (2015) 17 NWLR (Pt.1489) 445 at 477 this Honourable Court per Ariwoola JSC thus: “As shown earlier the appellant was charged along with others with the offence of conspiracy and armed robbery. It is already held that the proper approach to an indictment which contains offence of conspiracy as a charge and a substantive charge is to deal first with the main charge and then the charge for conspiracy.

Conspiracy is generally an agreement between two or more persons to do an unlawful act in an unlawful manner or lawful act in an unlawful manner, Indeed, failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is a separate and distinct offence in itself, independent of the actual offence said to have been conspired to commit. See BALOGUN V. ATTORNEY GENERAL, OGUN STATE (2002) 2 SC (PT.11) 89; (2002) 4 SCM 23; (2002) 2 SCNJ 196; (2002) 6 NWLR (PT.763) 52; OSETOLA & ANOR v.

STATE (2012) 12 SCM (PT.2) 347.” Again in the case of KAYODE BABARINDE & ORS vs THE STATE (2014) 3 NWLR (Pt.1395) 568 at page 594 this Honourable Court per Kekere-Ekun, JSC had the following to say on what is conspiracy and how it can be proved: She stated as follows:- “Section 96 of the Penal Code, which defines Criminal Conspiracy’ has been reproduced earlier in this judgment. It is trite that conspiracy is seldom proved by direct evidence. In OBIAKOR V.

THE STATE (2002) 6 SC (Pt.11) 33 at 39-40; (2002) 10 NWLR (PT.776) 612 at 628, PARA G-H this Court held, per Kalgo, JSC “Conspiracy as an offence is the agreement of two or more persons to do or cause to be done an illegal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts.”

On the nature of proof required to establish conspiracy, Achike, JSC (as he then was) stated thus in ODUNEYE v. THE STATE (2001) 1 SC (PT.1) 1 @ 6-7, (2001) 2 NWLR (PT.697) 311 @ 324.

“A conviction for conspiracy is not without its inherent difficulties… a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which evidence is not of the fact in issue but of other facts from which the fact in issue can be inferred… Evidence in this connection must be of such quality that irresistibly compels the Court to make an inference as to the guilt of the accused” (Italics mine)

In the case at hand the Court below had held as follows: “By Exhibits 3, 34 and 4 and 4A and the 1st and 2nd accused decided to go to the deceased’s house to ask him why he burnt their farm. They went to the house. They asked the deceased and because the deceased said he was not going to answer them, the two of them jointly beat him. That they left the house together with a common purpose of going to ask the deceased cannot be said to be an agreement to go and beat the deceased.

However, by jointly beating the deceased even when he tried to leave them and enter his house but they held and dragged him back and beat him, an agreement to beat the deceased can be and it is inferred therefrom by me. The 1st and 2nd accused agreed at that point to beat the deceased and their act was illegal. I hold that the prosecution has proved conspiracy or agreement by the 1st and 2nd accused to beat the deceased and which act resulted in the death of the deceased… ”

The Court below in considering the submissions of the Appellant in his Brief of Argument before that Court under Issue 1, held at page 190 of the records as follows: “There was unchallenged evidence before the lower Court that the Appellant jointly beat the deceased and that even when the deceased tried to leave them and enter his house, they held and dragged him back and beat him until he collapsed and that it was the beating that caused the death of the deceased.

The appellants acted in obvious concert and inference of conspiracy drawn by the lower Court from these unchallenged facts and finding made hereon were thus solid and cannot be tampered with by this Court. This Court thus finds that the lower Court was correct when it found that the Respondent led sufficient cogent and credible evidence before it to prove the offences of conspiracy and culpable homicide not punishable with death under Section 222(7) of the Penal Code Law beyond reasonable doubt to warrant the conviction and sentence of the appellants for those offences…”

The Appellant had not proffered any challenge whatsoever to the above finding by which failure the findings of the lower Court in affirming the trial Court’s finding stays till eternity and incapable of being dislodged.

The learned counsel for the Appellant had gone to great lengths in disparaging the findings of the Court below which that Court referred to as “rash acts” of the Appellant and co-accused. The line of thought which Appellant’s counsel wanted the Court to tow is to exculpate the Appellant since the acts leading to the death of the deceased were rash acts. I say to that, not so fast, as rash acts or reckless acts cannot be easily so dismissed as leading nowhere. This is because rash acts or reckless acts or reckless conduct are much more than mere negligence.

Black’s Law Dictionary definition in relation thereto as “intention cannot exist without foresight but that foresight can exist without intention.” See Nwabueze v People of Lagos State (2018) 11 NWLR (pt. 1630) 201 per Eko JSC. In expatiation, I would say that a man may foresee the possible or probable consequence of his conduct and yet not desire them to occur, NONETHELESS, if he persists on his course or knowingly runs the risk of bringing about the unwished.

This therefore undermined the essence of the conduct of the Appellant in that a man is responsible for the outcome or consequence of his act.

​The cause of death can be proved by direct or circumstantial evidence. The direct evidence required to prove the cause of death must be clear as to connect the deceased person with the act of the accused. The circumstantial evidence that will meet the requirements of the law of onus of proof, is the evidence that fixes the accused to the crime with sufficient cogency which excluded that someone else had committed the crime.

Apart from summation, conjecture and importation of suppositions, the Appellant did not contradict the testimonies that the deceased died as a result of flurries of blows inflicted on him by the two accused persons. This finding cannot be ignored when there was none proffered by the Appellant for this Court to set aside the solemn finding of the learned trial Judge as upheld by the lower Court. See the case of Nwaeze v State 96 NWLR Pt.428 pg 1 at 11.

On the issue of medical report, I would say without hesitation that it is not in all cases that medical evidence is sacrosanct in proving the cause of death. Medical evidence is dispensed with when the cause of death is known and occurs immediately.

My lords, the prosecution notwithstanding went the extra mile to produce a Medical Certificate which was not objected to. ​Medical evidence is not imperative where the victim died in circumstances in which there was abundant evidence of the manner of death which occurred immediately or so soon thereafter upon the occurrence of the act, is to enable the contemporaneity of the causation and effect.

Unless and until there is a proved and established fact of intervening cause in this appeal, the Appellant cannot undermine the effect of punches by two accused persons which uppercut may be more lethal similarly like any weapon.

The evidence before the Court which is not contradicted and upheld by the Court was that… “he beat me and I beat him, he held me and I held him and he fell” convincingly, since after the fall, there was no intervening cause until the victim gave up the ghost at 4pm. The arguments of the Appellant pertaining to any intervening cause must be discountenanced.

It is surplusage on the part of the prosecution to have tendered the medical report in that the law excuses the production of medical or export evidence where death was instantly caused by the act of the attacker.

The Appellant’s submissions on the defence of provocation and self defence go to no issue.

​By Section 218 (2) of the Criminal Procedure Code, it allows a Court of trial to convict an accused, rather than for the greater offence or the actual charge the accused is formally charged with, by finding the accused guilty of a lesser offence using a combination of some of the particulars of the offence charged. The operative word here is “lesser” not “another” charge.

As wrongly contested by the Appellant, that he was not in the know of the offence he was charged with, nor given the opportunity to address on it, nor generally that his fundamental right to fair hearing had been breached, had been taken care of, in that before anyone can be found guilty of any such lesser offence, he must be seen to have had notice of the lesser offence charged, by virtue of the notice of the greater offence he was charged with.

This came by, in that the evidence produced at the hearing in support of the greater offence is short of sustaining the charge BUT established beyond doubt, the lesser offence. See the cases of; OKOBI V STATE 84 7 SC 47 NWACHUKWU V STATE 86 2 NWLR PT. 25 pg 765 at 782 OYEDIRAN V REPUBLIC 67 NMLR 122 ​Therefore, for the conviction of the lesser offence to be valid, the accused must have sufficient notice of the lesser offence as in Section 218 CPC.

In the absence of sufficient notice of any lesser offence or if the lesser offence was not a constituent element of the larger offence, a conviction on the lesser offence just because the substituted offence conveys lesser punishment, shall not be sustained. See the case of ONUKWUBE V STATE 2021 NWLR PT.1767 pg 558 at 577/578. However, for Section 218 (2) to be properly invoked as done in this appeal, the following must be observed, namely; (i) The indictment in respect of which the accused is subsequently found guilty of; i.e the lesser offence must; a.

Contain words to include both offence such that the evidence led and facts found, though insufficient for conviction of grave or aggravated offence. b. Must support the conviction of lesser offence. It is trite to note here that the law does not insist nor is it necessary to charge the accused formally with the lesser offence with which he is convicted in that the great/aggravated offence include by necessary implication the lesser offence with which he was charged and convicted.

I rely on the case of Amadi v State (2019) NWLR (pt.1677) 366 at 378. ​A lesser offence has been described as a combination of some of the several particulars making up the offence with which the accused was charged with, as such the particulars constituting the lesser offence are carved out of the offence charged. The lesser offence with which the accused is convicted arises out of the facts and evidence led in support of the aggravated charge.

This therefore has been established over the years that when an accused had notice of the aggravated charge, he is deemed also to have notice of the lesser charge for which he could be convicted, though he was not formally charged with same. I refer to the case of: (i) RABIU V STATE 2010 10 NWLR PT.1201 at 148/149; (ii) NWACHUKWU V STATE 862 NWLR PT 25 pg.765 at 778/782.

The parties of the main/aggravated offence of culpable Homicide and being found guilty of rash and negligent act are the same in that Section 222 (7) provides thus: “Section 222 Culpable homicide is not punishable with death when a person causes the death of another by doing any rash or negligent act” ​Again to be said is that the same evidence or facts proffered in support of the main charge are the same, except that the evidence was insufficient to ground conviction of the main charge, but supportive and adequate to sustain the lesser charge.

The Court is mostly concerned with the similarities of the supportive evidence of both main and lesser charge. Where there are no similarities between the elements or ingredients/circumstances of the commission of the offence, the Court would not be right in convicting for a lesser offence. See the case of ADOBA V STATE 2018 NWLR PT 1633 pg 236 at 254/255. Thankfully, this is not the contention of the Appellant.

In order to convict for a lesser offence there must have been a trial and the elements/particular relied upon must have been proved, before there could be any sustainable justification for the conviction for a lesser offence. See (i) R V ADOKWU 20 NLR 103 (ii) TORBAMBO V POLICE 1956 NRNLR 94 (iii) AGUMAGU V Q.63 1 SCNLR 203 Coming home to Section 218 (1) of the CPC, it envisaged and anticipated against the position taken by the Appellant when it was argued that the Appellant was not formally charged with the lesser offence nor was the main/aggravated charge amended to accommodate the lesser.

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“Though he was not charged with” See the case of KADA V STATE 91 8 NWLR PT 208 pg 134 at 157 EZEJA V STATE 2005 6 NWLR PT 921 pg 269 at 278. It is easy to hold that the cause of death was well laid out, informed and there were direct account of the act that led to the death of the victim as was done in this matter. See also BAKURI V STATE 65 NMLR 163, ONYIA V STATE 2006 11 NWLR PT 991 pg 267.

The Appellant raised tacitly the defences of self defence and provocation which the Courts found not extendable to him.

In the case of OKONJI V STATE 87 1 NWLR PT 52 pg 659 at 668, the Court held that before the Appellant could enjoy the benefit, he must have reasonable belief that his life was in danger and that the quality of the force used on the deceased must be the same.

In the present appeal, there was no threat to the life of the Appellant nor that the quality of the force used in repelling was the same in that the Appellant and his co-accused beat the deceased blue and black. By this, the defence does not enure to the Appellant’s advantage in that the attack offered never raised reasonable apprehension of death or grievous hurt or death to himself.

From the totality of what is before the Court which learned counsel for the respondent has properly brought to light, I have no difficulty in going along the paths taken by the two Courts below in their concurrent findings of fact and to hold that the Appellant was properly convicted of the lesser offence of “rash and negligent act”. Also, the Courts below were right in rejecting the defences of provocation and self defence. Certainly, the medical report was not needed as the cause of death was well known and the conspiracy adequately inferred from the resultant act.

This appeal from the foregoing lacks merit and I dismiss it. I affirm the judgment of the Court of Appeal which affirmed the conviction and sentences dished out by the trial Court. Appeal Dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have read in draft before now, the judgment of my learned brother, Mary Ukaego, Peter-Odili, JSC, just delivered. I agree that the appeal lacks merit and deserves to be dismissed.

​His Lordship has most ably and comprehensively dealt with the issue in contention in this appeal. I have nothing to add to improve on the sound reasoning and conclusions reached in the lead judgment I adopt same as my own in dismissing the appeal and affirming the concurrent findings of the two lower Courts, which have not been shown to be perverse. Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: I had the privilege of reading a draft of the judgment just delivered by my learned brother, Mary Ukaego Peter-Odili, JSC and to show my support for the reasoning adumbrated therein, I shall proffer a few comments.

The Appellant, together with two other persons were charged with criminal conspiracy and culpable homicide punishable with death under Section 97 and 221 of the Penal Code Law, respectively. Upon conclusion of trial they were convicted for conspiracy and a lesser offence of culpable homicide not punishable with death under Section 222 (7) of the Penal Code Law and sentenced accordingly.

The Appellant’s main line of contention in this appeal therefore is that the deceased died not as result of the beating he and his co-accused persons subjected him to but for some other causes thus, he deserves an outright acquittal and discharge by the Court.

​The law is abundantly settled that medical certificate as to the cause of death may be dispensed with where death, as in this case, occurred instantly or almost immediately from the voluntary act of an accused person. See Iregu Vs. State (2013)12 NWLR (Pt.1367)92; Haruna vs. Attorney-General of the Federation (2012) 9 NWLR P.419; Alarape Vs. State (2001) 5 NWLR (Pt. 705)79. In this case, evidence adduced shows that the deceased collapsed while he was being beaten by the accused persons. He was confirmed dead shortly after.

It is therefore no brainer that the deceased died from the beating inflicted upon him by the Appellant. Their lack of intention to kill him can only lessen the gravity of the offence committed from murder to manslaughter but definitely not an acquittal. The production of medical report to establish the cause of death was a surplusage on the part of the prosecution as this is an appropriate case where medical evidence could be dispensed with. See Lori Vs. State (1980) 8-11 SC 81.

​In the final analysis, I hold that this appeal has no merit. It was rightly dismissed at the Court below and I have no hesitation dismissing it. I so hold. The judgment of the Court of Appeal delivered on 26th February, 2016 which upheld the conviction and sentence passed on the Appellant by the trial Court is hereby affirmed. Appeal dismissed.

ABDU ABOKI, J.S.C.: I had the privilege of reading before now, a draft of the lead judgment prepared by my learned brother, MARY UKAEGO PETER-ODILI, JSC. I endorse the reasoning therein and conclusions thereat that there is no merit in this appeal. I shall however, add a few words in support.

This appeal is against the affirmation by the Court of Appeal, sitting at Kaduna, of the conviction and sentence of the Appellant for conspiracy and culpable homicide not punishable by death, by the trial Court.

​The Appellant and two others were arraigned before the Kaduna State High Court on a two count charge of conspiracy to commit an illegal act contrary to the provisions of Section 97 of the Penal Code Law of Kaduna State and of culpable homicide punishable with death contrary to the provisions of Section 221(b) of the Penal Code Law of Kaduna State.

They were alleged to have on or about the 1st of February at AnchaGida Village, Sanga Local Government Area of Kaduna State, conspired to beat and to have beaten, one Mallam Makama Adamu to death by inflicting injuries on his head, with knowledge that death would be the probable consequence of their actions.

They pleaded “Not Guilty” to the charge and the matter proceeded to trial and in the course of which the Respondent called five witnesses and tendered exhibits in the proof of its case. The Convicts called three witnesses, including themselves, in proof of their defence.

At the conclusion of trial and after the final addresses of Counsel, the trial Court entered judgment wherein it found the Convicts guilty of conspiracy and of culpable homicide not punishable with death under Section 222(7) of the Penal Code Law and it sentenced each of them to one (1) year imprisonment, on Count one (which deals with the offence of conspiracy), and five (5) years imprisonment on Count two (which deals with the offence of murder).

The Appellant was dissatisfied with the judgment of the trial Court and appealed to the Court below. The Court below in its judgment dismissed the appeal and affirmed the judgment of the trial Court.

​The Appellant is still aggrieved, hence his further appeal to this Court. He raised two issues for determination, namely: 1. Whether there were sufficient, cogent and credible evidence of conspiracy and culpable homicide not punishable with death under Section 222(7) of the Penal Code Law of Kaduna State which warranted a substitution of conviction for conspiracy and culpable homicide not punishable with death instead of an outright acquittal and discharge of the accused persons? 2.

Whether the Court below was right when it affirmed the decision of the trial Court that the prosecution proved the offences preferred against the Appellant beyond reasonable doubt as required by law?

The Respondent, distilled a sole issue, asking the question: “Whether or not from the totality of the facts and law, the lower Court was justified to have found the Appellant culpable and thereby convicting him of a lesser offence than the one he was actually charged with?”

​My learned brother PETER-ODILI, JSC, adopted the sole issue raised by the Respondent in the determination of this appeal and summarized the arguments of Counsel on both sides. I also adopt the sole issue and the arguments as summarized by my learned brother, and add a few words in support.

The grouse of Appellant herein inter alia, was the propriety of the Court below, in invoking its powers under Section 218 (2) of the Criminal Procedure Code to convict him for the lesser offence of culpable homicide not punishable with death under Section 222(7) of the Penal Code without first calling the parties to address it on the applicability of the section. It is on this that the Appellant predicated his submission of lack of fair hearing.

It must be stated that this contention of the Counsel for the Appellant is not new and it had been raised in the past and had been debunked by the Courts. The arguments were considered by this Court in the case of Nwachukwu v.

The State (1986) LPELR 2085 SC or (1986) 2 NWLR (Pt.25) 765, Karibi-Whyte, JSC stated at pages 778-779 D- G of the case thus: “I now turn to the contention that Section 179 which provides that an accused person could be convicted of an offence with which he was not formally charged if it was lesser offence of an aggravated offence in respect of which he was charged is a denial of his right to fair hearing and accordingly unconstitutional and to that extent void. I have already analysed the provisions of Section 179 of the Criminal Procedure Act, and stated their purport.

There is no doubt that the lesser offence in respect of which an accused is convicted must be included in the substance of the charge and the evidence relied upon for conviction must support the lesser offence. On the facts before the Court below, it is difficult to contend that at the trial, Appellant was not aware of the fact of the circumstances that he was being tried for the offence of robbery, the aggravated nature of the offence merely resting on the circumstances of his commission of the offence.

Section 179 in both sub-sections clearly in the expression, although he was not charged with it, exclude the requirement of a formal charge or of asking the appellant/accused convicted of a lesser offence than that charged to say something before the conviction. This phrase clearly makes it unnecessary to do what counsel for the appellant has suggested.

Above all, the lesser offence is implicit in the greater offence, accused and in this appeal appellant, cannot feign ignorance of the offence” ​A trial Court and indeed an appellate Court has the inherent and statutory jurisdiction to convict and sentence an accused person for a lesser offence other than the one with which the accused person was originally charged.

The conviction of such an accused person in this regard will not be regarded as a violation of the accused person’s right to fair hearing as guaranteed by the provision of Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

However, for a Court to be able to invoke its power and/or jurisdiction as stated in the above quoted provisions of the law, the following elements must be established: 1. The offence the accused person was originally charged with and the one he was convicted for, must share the same ingredients or almost the same elements. 2. The facts of the case and evidence adduced by the prosecution must be insufficient or inadequate to convict the accused person in the original offence or charge, but was sufficient in respect of the lesser offence. See: Adeyemi v.

The State (1991) LPELR-172SC ​Clearly, the application of the provision of Section 218(2) of the Criminal Procedure Code, to convict an accused of a lesser offence as disclosed from the evidence on record, has nothing to do with the opportunity given to the parties to present their cases freely before the Court.

The exercise of the procedural power of the trial Judge to convict of a lesser offence under the provision of Section 218(2) of the Criminal Procedure Code, after the close of hearing in his final judgment, is an exercise of judicial powers in accordance with the law which has nothing to do with the principles of fair hearing and cannot be interpreted to mean denial of fair hearing.

It therefore follows that the lesser offence, must be a combination of some of the several particulars making up the offence charged; in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged.

In the instant case, the Appellant was originally charged for culpable homicide punishable with death under Section 221 of the Penal Code, but he was convicted for culpable homicide, not punishable with death under Section 222(7) of the Penal Code.

It is trite that to successfully establish a charge of culpable homicide punishable with death, against an accused person, the Prosecution is required to establish the following ingredients, conjunctively: i. The deceased died, ii. The death of the deceased was a result of the act of the accused person, and iii. The said 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. See the cases of: Ogunniyi v. The State (2012) LPELR-8567 Sani v. The State (2013) LPELR-20382.

With regard to culpable homicide not punishable with death, the above ingredients are also included, but with slight modification in respect of the third ingredient wherein the act or omission that caused the deceased’s death was done: i. Accidentally ii. In the heat of passion caused due to provocation; or iii. Where there is complete lack of intention.

​The learned trial Judge in the instant case found that the act of the Appellant which occasioned the deceased’s death was done without the intention to cause death and/or accidentally. Consequently, he found the Appellant guilty of culpable homicide not punishable with death, as distinct from the culpable homicide punishable with death, with which he was charged. This was affirmed by the Court below.

These findings of the two lower Courts are unassailable and based on credible and admissible evidence on record.

In summary, I am of the firm view point that the learned trial Judge acted rightly when he convicted and sentenced the Appellant for culpable homicide not punishable by death, instead of culpable homicide punishable with death, which was the offence with which he was originally charged. The Appellant had knowledge that he was standing trial for culpable homicide punishable with death. He had defended himself on the allegations and no additional evidence or facts other than those led at his trial were introduced to support his conviction for a lesser offence.

It is for these reasons, and for the fuller reasons contained in the lead judgment of my learned brother MARY UKAEGO PETER-ODILI, JSC, that I too adjudge this appeal to be devoid of merit and I accordingly dismiss it.

​I also abide by the consequential order(s), if any, contained in the lead judgment.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I agree with the reasoning eloquently expressed in the judgment just delivered by my learned brother, Hon. Justice M.U. PETER-ODILI JSC, to the effect that the instant appeal lacks merits.

​Accordingly, I too hereby dismiss the appeal for lacking in merits. I abide by the consequential orders made in the judgment. Appeal dismissed.

Judgment

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment) : This Appeal is against the Judgment of the High Court of Borno State delivered in Charge No. BOHC/25/CT12/2020 on 10th March, 2021 by A.B. Kumalia, J. It is a sister appeal to Appeals Nos. CA/G/72C/2021 and CA/G/73C/2021. ​The facts leading to the Appeal are that the Appellant and two others were arraigned before the Borno State High Court on a one-count charge of culpable homicide not punishable with death punishable under Section 224 of the Penal Code, Laws of Borno State.

The case against them was that one Hassan Muktar was arrested by the Police for assaulting a police officer while on duty. The Appellant, as 3rd accused person, and the 2nd accused person (PC Peter Joseph, along with one Sgt. Aminu) were detailed to arrest the deceased and PW3, Fatima Samaila (a sister to the deceased) for investigation at the Gwange Police Station. After arresting the deceased and PW3, they conveyed them to the said Police Station where the deceased was interrogated the same day.

The deceased was subsequently pronounced dead on arrival (DOA) the next day after he was taken to the hospital by the 1st accused person. Based on the statements of witnesses, especially that of PW3, the Appellant and two police officers, i.e., 1st and 2nd accused persons, were subsequently arraigned and charged before the lower Court for culpable homicide not punishable with death under Section 224 of the Penal Code, Laws of Borno State. The Appellant pleaded not guilty to the charge.

Thereafter, the Respondent adduced evidence in proof of the charge through seven (7) witnesses and nine (9) exhibits; while the Appellant and his two co-accused persons testified in their defence, called one (1) other witness and tendered one exhibit through PW7. At the close of trial and the addresses of Counsel on both sides, the learned trial Judge found the Appellant and the co-accused persons guilty as charged and sentenced each of them to seven (7) years imprisonment without an option of fine.

Dissatisfied with this decision, the Appellant filed an Appeal vide his Notice of Appeal on 17th May, 2021 wherein he complained on five (5) grounds. ​At the hearing of the Appeal on 18-01-22, Emmanuel Bwala Esq., adopted the submissions in the Appellant’s Brief of argument filed on 30-09-21 and settled by C.O. Toyin Pinheiro, SAN, in urging the Court to allow the Appeal and set aside the Judgment of the trial Court. On his part, K.S. Lawan, Esq, Hon.

Attorney-General of Borno State, adopted the arguments contained in the Respondent’s Brief of argument filed on 10-01-22, settled by him and deemed filed on 18-01-22, in urging the Court to dismiss the Appeal and affirm the judgment of the lower Court. The Appellant in his Brief of argument, distilled two issues for determination from the five (5) grounds of Appeal. These issues were adopted by the Respondent in its Brief of argument. Thus, the Appeal shall be determined on the two issues agreed upon by both parties. They are as follows: 1.

“Whether the admission in Exhibit “A”, the written statement of PW4 and the reliance by the lower Court on the evidence of PW4 in the conviction of the Appellant amounts to an infringement of the right of fair hearing and miscarriage of justice to the Appellant? (Ground 2) 2.

Whether from the totality of the evidence adduced during trial, the Respondent has proved the guilt of the Appellant to ground conviction for the offence of culpable homicide not punishable with death? (Grounds 1, 3 and 5).” ARGUMENTS Issue one –Whether the admission in evidence of the written statement of PW4 as Exhibit A, and the reliance by the lower Court on the evidence of PW4 in convicting the Appellant, amounts to an infringement of the right of fair hearing to the Appellant and led to a miscarriage of justice?

Under this issue, learned Counsel for the Appellant submits that the trial Court, having declared PW4 a hostile witness on the application of the Respondent under Section 231 of the Evidence Act, 2011, the Court was obliged to reject the evidence of the PW4 in its entirety. He relies on Popoola V State (2018) 10 NWLR (Pt. 1628) 485, 499, D-E; Ibeh V State (1997) 1 NWLR (Pt. 484) 632, 652, C-D. He argues that the trial Court, after declaring PW4 a hostile witness, still admitted his statement in evidence as Exhibit A.

He contends that the contents of the statement are at variance with the oral testimony of PW4 in Court, whose credibility had not been impeached by the Respondent as required by law as the Respondent did not cross-examine PW4 in order to impeach his credibility as required by Sections 231, 232 and 233 of the Evidence Act, 2011. Counsel submits that the trial Court, having declared PW4 a hostile witness, it was estopped from admitting his statement in evidence as Exhibit A and relying on same.

He relies on Udosen V State (2007) 4 NWLR (Pt. 1023) 125, 147, A-F to submit that the reliance by the lower Court on the evidence of PW4 was erroneous and prejudicial to the right of the Appellant to a fair and just trial, thus occasioning a miscarriage of justice. Counsel further argues that pursuant to the trial Court’s declaration of PW4 as a hostile witness, he was not cross-examined by the Appellant. His veracity regarding Exhibit A was not tested and yet the trial Court relied on same to convict the Appellant; and so this infringes the Appellant’s right to fair hearing.

Counsel therefore urged the Court to hold that the lower Court erred in law when it relied on the evidence of PW4 and Exhibit A to convict the Appellant. He finally urged the Court to resolve this issue in favour of the Appellant. In response, learned Counsel for the Respondent submits that by Section 231 of the Evidence Act and Section 237(1) (b) (3) (a) & (b) of the Criminal Procedure Code, both the prosecutor and the defence have the right to cross-examine and re-examine a witness. Thus, the failure of any of the parties to exercise these statutory rights cannot be blamed on the other party.

Counsel submits that even after the statement, Exhibit A, was admitted in evidence, the lower Court ordered that same be served on the Respondent and thereafter adjourned the case for the Appellant to prepare to cross-examine PW4 on its contents and to prepare its defence. Yet on the return date, the Appellant neither cross-examined PW4 nor re-called him as a witness to discredit him as provided under Section 237 of the CPC.

Counsel relies on the recent decision of the Supreme Court in Igwe V People of Lagos State (2021) 7 NWLR (Pt. 1776) 425, 451-452, H-A to submit that the lower Court acted rightly when it relied on the evidence of PW4 and Exhibit A. He therefore urged the Court to also resolve this issue in favour of the Respondent, and to dismiss this Appeal and affirm the conviction and sentence of the Appellant. RESOLUTION OF ISSUE ONE The relevant provisions of the Evidence Act, 2011 governing the procedure where a witness is declared hostile are contained in Sections 230-237 of the Evidence Act, 2011.

A close examination of the proceedings of the lower Court contained at pages 14-15 of the Record of Appeal discloses that there was a comedy of errors by both Counsel to the Respondent (prosecution) and Counsel for the accused persons, as well as on the part of the lower Court. In the first place the submissions of learned Counsel for the Appellant is based on a false premise that PW4 was declared a hostile witness. He was not, and the Record of Appeal does not bear this out. The Record discloses that PW4 testified in chief and thereafter, he was submitted for cross-examination.

It was while he was being cross-examined that he made a statement that caused the Respondent to apply under Section 231 of the Evidence Act to have the witness declared as hostile. Upon the PW4 admitting that he made a statement to the police at the State CID, the Respondent tendered the statement in evidence. The Appellant objected to its admission on the sole ground that he had not been served a copy of the statement. In ruling on the application, the lower Court admitted the statement in evidence and ordered that same be served on the Appellant before he continues with his evidence.

The case was thereafter adjourned for the Appellant to continue his cross-examination. On the adjourned date however, neither the Appellant nor the Respondent nor the trial Court brought up or referred to the matter of further examination or cross-examination of the witness. Instead, the case simply proceeded with the evidence of PW5. No further reference was made to the application made by the Respondent to declare the PW4 hostile nor was there any subsequent ruling on the application.

On the options available to the prosecution where a witness starts to give evidence contrary to what he already said in his depositions to the Police, the Supreme Court per Belgore, JSC (as he then was, later CJN) pronounced as follows in Ibeh V State (1997) 1389(SC) 20-21, A: “Once the prosecution discovers a witness is giving evidence contrary to what he already said in his depositions to the police, the options are as follows: one, if the witness intimates before he goes into the witness box that he would change his story, the prosecution will apply to the Court that he would be called only for cross-examination as his evidence is contrary to his previous deposition.

The Court will accede to this and the evidence of this witness will be of no value to either side. Secondly, if the witness resiles on getting into the witness box on his previous deposition on the same case, the prosecution applies to treat him as a hostile witness. In such cases, the witness will be declared a hostile witness if the Court rules so. But before ruling, the Court must be satisfied as to the discrepancy in his previous deposition and evidence on oath.

Once satisfied, the Court will rule the witness a hostile witness to be cross-examined by the prosecution.” (Emphasis supplied) ​From what transpired in Court, PW4 was never declared a hostile witness as the Court did not rule on the Respondent’s application and none of the parties followed through on the issue. In addition, since no ruling was delivered on the application to declare PW4 hostile, he was not subjected to cross-examination on his previous statement by the Respondent.

Thus, PW4 was simply treated as a regular prosecution witness and so the lower Court considered and assessed his evidence in its totality. As was held by the Supreme Court in Arehia V State (1982) LPELR-13, C-D, per Uwais, JSC, the duty of the prosecution to treat its witness as hostile is discretionary.

The law is settled that where the credibility of a witness is successfully impeached, his evidence loses probative value – Obri V State (1997) LPELR-2194(SC) 12, D-E. However, in this instance, based on the facts on record, PW4 was not declared a hostile witness and his credibility was not impeached. His evidence as given was merely allowed to stand and the lower Court ultimately decided on the weight to be ascribed to it, as it is entitled to.

​The question now is, did this stultify or circumscribe the Appellant’s right to fair hearing in any way and therefore occasion a miscarriage of justice? Put another way, was the Appellant’s right to fair hearing breached such as to occasion a miscarriage of justice? I find myself unable to agree with the Appellant in his submissions on this. This is because at no time was PW4 declared a hostile witness by the lower Court, therefore the provisions of the Evidence Act referred to by Counsel were not in any way breached.

While it is correct that an application was made to declare PW4 hostile when, upon cross-examination, he denied that he witnessed anything, the Respondent subsequently abandoned the application. The Appellant went along with this as he also did not bother to further cross-examine the witness on the next date of hearing after he had been duly served the witness statement, Exhibit A.

Instead, he seemed satisfied with the very brief cross-examination conducted on the previous date in which his sole complaint against the admission of the document in evidence was that he had not been served with it. ​In the light of the evidence on record, I do not agree with the Appellant that his right to fair hearing was breached by the lower Court.

Instead, the Record discloses that when the Appellant drew the Court’s attention to the fact that he had not been served a copy of the statement, the lower Court immediately ended the proceedings for the day and ordered that the Appellant be served PW4’s statement before he continued with his cross-examination. Thereafter, the prosecution expressly stated that he had no more questions for PW4. Surprisingly, a similar response is recorded for the Appellant as cross examination was “Nil” – page 15 of the Record.

On the adjourned date, the Appellant on his own volition, having since been served a copy of PW4’s statement, failed to further cross-examine PW4. He simply went along with the continuation of the proceedings when the Respondent called the PW5 to testify. It is trite that equity aids the vigilant and not the indolent. The Appellant certainly had a right to cross-examine the Respondent’s witness, but he did not. There is no apparent reason on record for why he chose not to.

This failure can neither be laid at the door of the Respondent nor at the door of the lower Court. ​In addition, even though PW4 admitted to making Exhibit A, the extra-judicial statement to the Police, he was neither cross-examined on it by the Respondent/Prosecution with a view to impeaching his credibility nor was he at any time declared a hostile witness by the lower Court. Since that is so, then Sections 230 to 237 of the Evidence Act (supra) as it relates to how evidence from a witness declared hostile should be treated, are inapplicable to the instant case.

Based on these, I find the Appellant’s submissions on this issue rather baseless. Therefore, I resolve issue one against the Appellant and in favour of the Respondent. Issue two – Whether from the totality of the evidence adduced during trial, the Respondent has proved the guilt of the Appellant to ground conviction for the offence of culpable homicide not punishable with death? Under this issue, learned Counsel for the Appellant sets out the three ingredients of the offence which must be proved for the prosecution to succeed in a charge of culpable homicide not punishable with death.

He does not dispute that the deceased, Hassan Mukhtar, died. The first element of the offence is therefore proved, as conceded. Counsel’s main contention however is that the Respondent did not prove that it was the Appellant who killed the deceased. ​In this regard, Counsel submits that the Respondent failed to lead evidence that linked the death of the deceased with the Appellant. He argues that the plank of the case of the Respondent and the Judgment of the lower Court was anchored on the testimony of PW3, which he contends, did not link the Appellant to the charge.

Counsel therefore submits that the conclusion drawn by the lower Court from the evidence adduced by the Respondent is speculative. He relies on Orisa V State (2018) 11 NWLR (Pt. 1631) 453, 471-472, H-B. Counsel further submits that whereas the lower Court relied on Exhibits E1 and E2 to hold that the Appellant took part in beating up the deceased as a result of which he lost consciousness and died, there was no evidence linking the Appellant to the said Exhibits. He relies on Aliyu V State (2002) NWLR (Pt. 644) 178, 196, A-D.

Counsel submits that the lower Court had an obligation to review, analyze and consider all the defenses put forward by the Appellant – Bala V State (2019) NWLR (Pt. 1676) 176, 186, E-G, per Peter-Odili, JSC. However, that in the instant case, it failed to ascribe any evidential value to the evidence of the Appellant who testified as DW3. Instead, in disregard of the evidence of the Appellant, it invoked the doctrine of ‘last seen’ against him.

Counsel submits that the doctrine of ‘last seen’, which connotes that the Appellant was the last person seen with the deceased prior to his death, is inapplicable to the case since the evidence was that the Appellant did not take the statement of the deceased and that he closed from work between 6:00pm and 6:30pm and left him at the police station, a public place. He therefore contends that this debunks the doctrine of ‘last seen’ invoked by the lower Court. He relies on Haruna V AG Federation (supra).

Counsel further contends that the lower Court relied on the extrajudicial statements of the other accused persons to convict the Appellant. He submits that the statement of co-accused persons cannot bind the Appellant such as to ground a conviction against him. He relies on Babatunde V State (2018) 17 NWLR (Pt. 1649) 549, 565-566, D-G. He also submits the facts and circumstances of the case demands medical evidence to show that the deceased was severely beaten which allegedly led to his death, vide the evidence of PW3.

Counsel submits that however, the medical evidence tendered in respect of the deceased, Exhibit I, did not state that the deceased sustained injuries arising from being beaten with Exhibits E1 and E2, as alleged by the Respondent. Thus, he submits that the absence of evidence to prove the deceased’s cause of death was fatal to the case of the Respondent. He relies on Okeke V FRN (2020) 18 NWLR (Pt. 18) 118, 154-155, A-C.

Counsel also contends that there were contradictions in the evidence of PW3 and PW5 on the alleged beating of the deceased, and these contradictions were fatal to the case of the Respondent – Olayinka V State (2007) 9 NWLR (Pt. 1040) 561, 584, E, per Tobi, JSC. In addition, he contends that the evidence of PW1, PW2, PW5 and PW7 was hearsay and lacked evidential value as none of them were at the scene of the alleged beating. He relies on Osho V State (2012) 8 NWLR (Pt. 1303) 288, G-H, 289, A-B; and Section 37 of the Evidence Act, 2011.

Counsel therefore submits that the Respondent failed to prove the ingredients of the offence charged as it did not prove that the death of the deceased was caused by the Appellant. The Court is therefore urged to resolve issue one in favour of the Appellant. ​In response, learned Counsel for the Respondent also set out the ingredients to be proved in an offence of culpable homicide not punishable with death under Section 224 of the Penal Code, Laws of Borno State. He submits that it is not in dispute that Hassan Mukhtar died. Rather the question is how the deceased met his untimely death.

For evidence in proof of this, Counsel referred to the testimonies of PW1 to PW7, as well as the exhibits tendered by the prosecution, in particular, Exhibit I. He submits that the Appellant admitted in Exhibits C and H, as well as in his oral testimony, that he was among those that went to arrest the deceased, handcuffed him and brought him to Gwange Police Station. Counsel also refers to the evidence of the Appellant in Court as DW3 where he admitted taking the deceased to the charge room along with the 2nd accused person.

This fixed the Appellant to the scene of crime. ​Counsel also refers to the evidence of PW3, the sole eyewitness where she said she heard the cries and shouts of the deceased while he was being beaten in the investigation room. Later, when he was brought out, he could not walk and then he was again locked up where he later died. Based on this evidence, Counsel submits that the deceased was beaten up by the Appellant and the two co-accused persons in the investigation room. As corroborative evidence, he relied on the evidence of PW4 and that of PW2, as well as Exhibits A, C and H.

Counsel also submits that Exhibits E1 and E2, incriminating objects, were found in the investigation room by PW6, where the Appellant had admitted in Exhibits C and H and in his oral evidence that he had taken the deceased into. Invoking the doctrine of ‘last seen’, Counsel submits that where an accused person was last seen with the deceased, he has a duty to explain how the deceased met with his death. Where he is unable to, a trial Court would be justified in drawing the inference that the accused person killed the deceased. He relies on Umar V State (2018) 7 NWLR (Pt. 1617) 72, 90-91, E-A.

Counsel submits that the presumption in the doctrine of ‘last seen’ was rightly relied on to convict the Appellant because the Appellant and the two other accused persons all admitted to have been together with the deceased from when he was arrested up till when the Appellant alleged that he closed from work. Counsel submits that the evidential burden of proof then shifts to the accused person to prove how the deceased met his death. He relies on Umar V State (supra); & Omoregie V State (2018) 8 NWLR (Pt. 1620) 125-126, E-H.

In respect of the issue of medical evidence in proof of cause of death, Counsel submits that where the evidence placed before the trial Court through the testimonies of witnesses establishes the cause of death, and where death was instantaneous or nearly so, it obviates the need for any medical evidence. Reference is made to the evidence of PW1 – PW7 and Exhibits A, B, E1, E2, F and I. He relies on Wowem V State (2019) 9 NWLR (Pt. 1781) 295, 345, E-E; Abdullahi V State (2019) 16 WRN 145, 175.

Referring to the medical report, Exhibit I, Counsel submits that it confirmed that the Appellant brought Hassan Muktar to the hospital at about 7:30am on 20-07-19 and he was received at the Accident and Emergency Ward already dead. ​Counsel submits that the intention that the Appellant likely or probably intended to cause the death of the deceased can be inferred from the act of the Appellant, the weapon used and the part of the body where the injury was inflicted.

He referred to the admission of the Appellant that he took the deceased into the investigation room where Exhibits E1 and E2 were later found by PW6. This was sufficient to establish the Appellant’s intention to inflict such bodily injury on the deceased which led to his death. He refers to evidence of PW2 to PW6, and relies on Kolade V State (2017) 8 NWLR (Pt. 1566) 60, 118 (C-E). In addition, Counsel submits that PW3 narrated how the Appellant and the two other accused persons beat up the deceased in her presence at the police station.

Her evidence, in conjunction with those of other witnesses, along with the exhibits found at the scene of crime, point to the Appellant as being one of the perpetrators of the acts leading to the death of the deceased. Counsel submits that the statements of the Appellant, Exhibits C and H, were free and voluntary, confessional in nature and were admitted in evidence without objection. Therein, the Appellant admits to have brought in the deceased to the police station hale and hearty until he was taken back into his cell unconscious, where he later died (Exhibits D and G).

Counsel relies on Ikpo V State (2016) 13 NCC 513, 543; & Kolade V State (supra) to submit that a confessional statement does not become inadmissible merely because it is retracted at the trial. He therefore urged the Court to hold that the surrounding circumstances leading to the death of the deceased irresistibly lead to the conclusion that the Appellant caused the death of the deceased. Finally, Counsel urged the Court to resolve this issue in favour of the Respondent.

RESOLUTION OF ISSUE TWO In kick starting the resolution of this issue, it is pertinent to reiterate that the law as long established by case law is that there are three modes of proof in criminal cases.

They are as follows: a) By direct evidence, to wit: by the testimonies of eyewitnesses, i.e., witnesses who watched, heard or witnessed the commission of a crime committed by the accused person(s); b) By a confessional statement voluntarily made by the accused person wherein he owned up to the commission of the offence; and c) By indirect evidence, to wit: circumstantial evidence which points clearly to the fact that the accused person, and no other, committed the offence charged.

See Olaoye V State (2018) LPELR-43601(SC) 13, C-F; Anyasodor V State (2018) LPELR-43720(SC) 14-15, F-C. It is also entirely the prerogative of the prosecution to decide how it intends to establish the offence against an accused person. The Court does not concern itself with the method of proof as may be adopted by the prosecution provided that proof beyond reasonable doubt, as required by law, will be secured.

Thus, in an attempt to secure conviction, the prosecution is at liberty to rely on the evidence of a witness or witnesses or on the proven confession of the accused person or on strong circumstantial evidence. See Umar V State (2014) LPELR-23190(SC) 36, A-C. In the instant case, it is evident that the prosecution relied on circumstantial evidence as well as direct eyewitness evidence, to establish the charge against the Appellant.

The charge against the Appellant was as follows: “That you Ahmed Sani ‘M’ of Gwange Police Station, Peter Joseph ‘M’ of Gwange Police Station and Mohammed Muazu ‘M’ of Londin Ciki Ward of Maiduguri on or about the 19th July, 2019 at about 1700hrs, at Gwange Police Division Maiduguri which is within the jurisdiction of this Honourable Court committed culpable homicide not punishable with death in that you arrested, handcuffed and beat one Hassan Muktar ‘M’ (now deceased) with a police baton and cable wire until he became unconscious and died in your custody, an act which you knew was likely to cause death and that you thereby committed an offence punishable under Section 224 of the Penal Code Laws of Borno State.”

Section 223 of the Penal Code, the definition section of the offence, provides: “223. If a person by doing anything which he intends or know to be likely to cause death commits culpable homicide by causing the death of any person whose death he neither intends nor knows himself likely to cause death, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.” Section 224 of the Penal Code provides the penalty for the offence as follows: “224.

Whoever commits culpable homicide not punishable with death, shall be punished with imprisonment for life or for any less term or with fine or with both.”

This provision sets out the essential elements of the offence which must be proved in order to secure a conviction. They are:

a) The death of the person in question. b) That such death was caused by the act of the accused. c) That the accused intended by such act to cause death or that he intended by such act to cause such bodily injury as was likely to cause death or that he knew that such act would be likely to cause death or that he caused the death by a rash or negligent act. ​In proof of the charge against the Appellant, the Respondent called a total of seven (7) witnesses and tendered nine exhibits in evidence.

The summary of the evidence of each witness is adequately captured in the Judgment of the lower Court at pages 2-4 of the Record of Appeal. PW1 and PW2 are the mother and father of the deceased respectively. They both testified to the fact that their son, Hassan Mukhtar is dead and that he was subsequently buried eleven (11) days later when the corpse was released to him.

It is significant that when the police officers, including the Appellant and 2nd accused person, went to arrest the deceased and take him to Gwange Police Station, it was PW2, his father, who called him out from the house and handed him over to the Police. Thereupon, the Appellant handcuffed the deceased in the presence of PW2 and took him away. From the evidence of PW2, at the time Hassan was handed over to the Police, he was hale and hearty, a fact the Appellant also stated in Exhibit H, his extra-judicial statement.

There was no indication that the deceased was ill or that he would succumb to death a few hours later in the custody of the Police. ​PW3, Fatima Samaila, the sister of the deceased, was arrested along with him. She is also the closest thing to an eyewitness that testified in the case. Her evidence establishes that upon their arrival at Gwange Police Station, the police officers set upon the deceased and beat him up to a pulp with an electric cable. The beating was concentrated at his head and chest and they “matched” (trampled on) him even as they continued to beat him.

She identified the Appellant as being among the persons who beat up the deceased. She kept crying and begging them to stop. However, instead of stopping, they took him away to the investigation room where, even though she could not see what they were doing to her brother, she heard his cries and shouts. When they later brought him out to the counter at the Police Station, Hassan could neither stand nor walk but was supported by police officers who brought him out and sat him down. When they asked him questions, he also could not talk and so she had to answer the questions put to him.

He was later taken to the cell supported by a police officer. From the counter, she heard him drawing deep breaths. After some time, she could not hear him again. It was in the morning that she was told her that her brother, Hassan, was dead. ​PW4 was Sgt. Musa Usman. He was at the Gwange Police Station as the second-in-command of Team ‘A’ when the Appellant and 2nd accused person, along with Sgt. Aminu, brought in the deceased and PW3 (his sister Fatima) on an allegation of assault of a Police Inspector.

After he confirmed the information from the Inspector allegedly assaulted, he detained PW3 as a woman, behind the counter. His evidence thereafter as reflected at page 14 of the Record of Appeal, is as follows: “I ordered Peter Joseph (2nd accused) to take the statement of the deceased. Then Sergeant Ahmed Sani (1st accused) came and I ordered him to take over the investigation from the second accused person. My in-charge came in and I told her about the case. She said she was aware. First, second & third accused were with the deceased. First accused took the deceased to detention.

That’s all I know.” Under cross-examination, PW4 stated as follows: “Yes I was at the station when everything happened. I did not see anything.” At this stage, Counsel for the Respondent applied to declare PW4 a hostile witness. Without ruling on the application, the lower Court admitted his extra-judicial statement to the Police made at State CID Maiduguri in evidence as Exhibit A. In the statement, PW4 had stated as follows: “… I told Pc. Peter Joseph to take the male suspect into investigation room and record his statement and the complainant. Spy Muazu Mohammed followed him.

While on this process our in charge w/insp Hajara Faruq came in and we started hearing crying voice in the investigation room, w/insp Hajara Faruq asked who is crying, I told her Peter and Muazu is in the investigation room taking statement from one suspect let me go and see them. On my way to the investigation room I saw Sgt. Ahmed Sani coming out of the investigation (sic) with a batton (sic) in his hand. I entered the investigation room and found the suspect sitting on the floor handcoft (sic) behind not in front as he was brought, but already beatened (sic).

I told PC Peter told Muazu Mohammed a spy who is having key to the handcof to remove the handcof and he removed it… All I know is that Sgt. Ahmed Sani, Pc Peter Joseph and Muazu Mohammed Spy were the persons who beat the male suspect because I met them in investigation room when I heard the suspect crying where Sgt.

Ahmed Sani was having batton (sic) in his hand, Pc Peter Joseph having wire cable in his hand and Muazu Mohammed hold key to the handcuff (sic).” (Emphasis supplied) ​Thus, the Appellant (3rd accused) was clearly identified by the combined testimonies and statement of PW3 and PW4 as being one of the persons who viciously beat up the deceased on the date in question. PW5 was also a Police officer at Gwange Police Station, while and PW6 was a Police officer at the State CID Maiduguri respectively. They separately investigated the allegation against the Appellant and co-accused persons.

PW5 recorded the statements of the Appellant and 1st accused person at Gwange Police Station on 20-07-19, while the 2nd accused person wrote his statement himself. The first Statement of the Appellant is in evidence as Exhibits C. Thereafter, when the accused persons were transferred to the State CID Maiduguri, PW6 was detailed to investigate. He recorded the statements of the 1st and 2nd accused persons, while PW7 recorded the statement of the Appellant, Exhibit H.

PW6 also inspected the scene of crime, i.e., the investigation room at Gwange Police Station, where he recovered Exhibits E1 and E2, a broken police baton and an electric cable wire. PW7, DSP Clement Jafia of the State CID, was the leader of the investigation team. Based on the allegation of PW3 buttressed by the statement of PW4 that her brother was beaten up by the accused persons with a police baton and cable wire, PW7 along with PW6 went to the investigation room at Gwange Police Station where they recovered a broken police baton and an electric cable wire.

PW7 also recorded Exhibit H, the statement of the 3rd accused person. Confronted with these pieces of evidence, the Appellant in his evidence as DW3 admitted that he was among those that went to arrest the deceased and PW3; that PW4 indeed asked them to take the deceased to the investigation room for his statement to be taken; but when the 1st accused person arrived, he sent them out. He completely denied beating the deceased.

In his first extra-judicial statement, Exhibit C, the Appellant completely denied torturing the deceased and instead pointed fingers at the other police officers, just like he did in his second statement, Exhibit H. The only significance of his statements is that it establishes that he was part of those who arrested the deceased, handcuffed him and was placed squarely in the investigation room, the scene of crime, with the deceased and the co-accused persons.

It further buttresses the evidence contained in Exhibit A (the statement of PW4) that when he entered the investigation room to see why the deceased was shouting and crying, he found the Appellant holding the key to the handcuff, the 2nd accused holding a wire cable and the 1st accused holding a baton.

Thus, even though Exhibits C and H did not amount to confessional statements, PW3 was very specific in her evidence that the Appellant was one of the policemen who beat up the deceased targeting his head and chest with a cable wire and trampled on him before dragging him into the investigation room.

Before going into the nitty-gritty of the evidence, it is appropriate to examine the findings of the trial Judge and see how he arrived at the conclusion that the Respondent had established that it was the act of the Appellant, in conjunction with the acts of the other accused persons, that led to the death of Hassan Muktar. These findings are as captured in detail at pages 55-59 of the Record of Appeal. Suffice it to say that the learned trial Judge placed heavy reliance on the evidence of PW3 and Exhibit A, the extra-judicial statement of PW4.

It is not out of place to reproduce a few extracts from the trial Court’s findings in the Judgment at pages 57-58 of the Record as follows: “The PW3 also testified that the deceased was being beaten in the investigation room. She was hearing his cries and she begged Inspector Abdullahi to be patient, but he told her that until the other two people that were at large are brought to the station.

There is overwhelming evidence on the fact that the deceased was beaten… Aside this further testimony of PW3 that about 8p.m. the deceased was brought to the counter he could not walk, he was held and supported to walk. They sat him on a chair and asked him his name. He could not talk, she was the one answering the questions put to him by the police. After that they wanted to put him into the cell, he could not walk and the person that had the cell key supported him into the cell. At the cell, she was hearing him breathing deeply until after some time he stopped. She began to think he was dead.

These show that the deceased was beaten and he died shortly afterwards. Where a person was beaten and he died instantaneously or nearly so as in this case, it is obvious that the beatings he received caused his death. According to PW3, he was beaten on the head and chest and they matched him. There is no wonder that he did not recover after that beating. Before the deceased was brought to the station, i.e., after his encounter with Inspector Dipaja Abdullahi, he was hale and hearty.

He was at home seated with the members of his family in the evening of that day when the third accused and other officers came for his arrest and his father called him out and he entered the Napep (tricycle) by himself and was brought to Gwange police station.” (Emphasis supplied) These findings are completely in tandem with the evidence placed before the trial Court as reflected in the Record of Appeal. I cannot therefore fault the inferences drawn from the pieces of circumstantial evidence adduced by the Respondent.

From the findings, there is no doubt that the learned trial Judge found that the nature of evidence placed before him was circumstantial in nature. Therefore, the submission of learned Counsel for the Appellant that there was no direct evidence, to wit: eyewitness evidence, to establish that the Appellant participated in viciously beating the deceased, which ultimately led to his death a few hours after, does not detract from the sound findings and inferences drawn by the lower Court based on the cogent and strong circumstantial evidence placed before it.

On the nature of circumstantial evidence that is considered sufficient to prove a criminal charge, Oputa, JSC in Adio V State (1986) LPELR-183(SC) 22-23, G-C, aptly put it this way: “Circumstantial evidence can prove a case beyond reasonable doubt. The local case of Joseph Ogunbayode and others, (otherwise known as the Apalara case), is an excellent example of proof beyond reasonable doubt based purely on inferences from circumstantial evidence.

It is often said that witnesses can lie but circumstances do not, so in that sense, circumstantial evidence affords better proof beyond reasonable doubt.” (Emphasis supplied) Thus, the weight and effect of the circumstantial evidence acted upon by the trial Court cannot be belittled simply because there was no direct evidence. Circumstantial is one of the legitimate ways of proving a criminal charge before a Court of law. ​The Appellant also takes up issues with the invocation of the doctrine of ‘last seen’ to draw inferences from the evidence against the Appellant.

The doctrine of ‘last seen’ has been entrenched in our jurisprudence. The doctrine simply enjoins the Court in a criminal trial to draw an inference that a person who was last seen alive with a person who was later found to have been killed or murdered, was the murderer, depending on the ascertained evidence as to the manner in which the deceased died.

Where there is evidence, as in the instant case, as to what led to the death of the deceased, the trial Court is justified in applying the doctrine of ‘last seen’ by inferring that it was the Appellant, who was the last person seen with the deceased, that killed him. The ‘last seen’ doctrine also indicates that any accused person charged with murder would be required to offer some explanation as to how the deceased met his death.

In Haruna V AG Federation (2012) 9 NWLR (Pt. 1306) 419, the Supreme Court per Adekeye, JSC further explained the law in the following terms: “The doctrine of ‘last seen’ means that the law presumes that the person last seen with a deceased bears full responsibility for his death.

Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal.” In the locus classicus on this doctrine, in Madu V State (2012) LPELR-7867(SC) 51-52, F-D, the Supreme Court per Ariwoola, JSC, expatiated the doctrine thus: “In the Indian Supreme Court case of Rajashkhanna V State od A.P. (2006) 10 SCC 172, the Indian Supreme Court noted as follows: “The last seen theory comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible.” However, in S.K.

Yusuf V West Bengal (2011), the same Supreme Court after referring to its earlier stand above further held that where there is a long time – gap between the “last seen together” and the crime, and there is a possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”. Even if the time gap is less and there is no possibility of others intervening, it is said to be safer to look for corroboration.” See also Oladapo V State (2020) LPELR-50553(SC) 16-17, D-A; Kolade V State (2017) LPELR-42362(SC) 53-54, E-B Mbang V State (2009 LPELR-1852(SC).

Aligning the law to the facts in the instant case, PW3 was very categorical that it was the Appellant and the other policemen who came to their house to arrest the deceased and herself. On their arrival at Gwange Police station, the Appellant, 2nd accused and one Sgt. Aminu began to beat the deceased. They beat him on his head and chest with a cable wire and even trampled on him before they dragged him into the investigation room.

Also, the evidence of PW3 and PW4, as well as Exhibits C and H, place the Appellant with the deceased in the investigation room on 19-07-19, a few hours before his death. The Appellant was seen in the room with the key to the handcuffs and with the deceased handcuffed on the ground having been beaten (Exhibit A). The cries and shouts of the deceased were heard by both PW3 and PW4 when the Appellant and his co-accused persons were alone with the deceased in the investigation room. Shortly thereafter on the same day, the deceased was assisted out of the room unable to walk and to talk.

He was then taken to a police cell where his laboured breathing could be heard for some time by PW3 (who was sitting at the police counter), after which she could not hear him again. Now, even though there was nothing to confirm the precise time when the deceased died, Exhibit I, the Medical Report, categorically stated that the 1st accused person brought the deceased to the Accident and Emergency Ward of the hospital, UMTH, already dead. The law is trite that documentary evidence is the hanger upon which oral evidence is tested.

Thus, by the combined effect of the evidence of PW3, PW4, Exhibits A, C, H, E1, E2 and I, I am of the view that the learned trial Judge was right when he invoked the doctrine of ‘last seen’ against the Appellant. This is because, as it relates to the death of the deceased, the Appellant, in conjunction with the 1st and 2ndaccused persons, were the persons last seen with the deceased in an enclosure, the investigation room at Gwange Police Station, where he was thoroughly beaten up. His agonized cries and shouts were clearly heard by the PW3 and PW4 (Exhibit A).

Shortly thereafter, the deceased was brought out of the investigation room completely incapacitated as he could neither stand nor walk nor talk, but only managed to draw deep laboured breaths.

Thus, his death sometime that same evening or night, but certainly before the 1st accused conveyed him to hospital the next morning where he was pronounced dead on arrival (DOA), had a direct link to the persons who were with him when he was heard crying and shouting shortly before he died. ​No evidence was adduced or placed before the trial Court of any intervening factor, such as the deceased being manhandled by any other person after his encounter with the Appellant and co-accused persons.

Instead, PW3 categorically stated that after the deceased was brought out of the investigation room a completely broken man and obviously in distress, he was helped into the police cell where, after some time, she could no longer hear his laboured deep breaths. This evidence is unchallenged and uncontroverted. So, the trial Court was right to have invoked the doctrine of ‘last seen’ against the Appellant and his cohorts, and acted on it.

As was held by Adekeye, JSC in Haruna V AG Federation (supra), the Appellant and two accused persons were the last persons to be seen in the company of the deceased, and the circumstantial evidence is overwhelming and leads to no other conclusion but that they caused the death of the deceased. In the circumstance based on the facts of the case, there is no room for acquittal. On the contention of the Appellant that there was no medical evidence to establish the cause of death of the deceased.

It is true that in a charge of culpable homicide such as this, medical evidence, which includes a medical report, may be desirable to establish the cause of death. However, the law is trite that it is not a sine qua non of proof of death This is because the cause of death may be established by sufficient satisfactory and conclusive evidence showing beyond reasonable doubt that the death of the deceased resulted from the particular act of the accused. Thus, where death is instantaneous or nearly so, medical evidence ceases to be of any practical or legal necessity. In Ogba V.

State (1992) 2 SCNJ 106, 125, Akpata JSC opined: “It must also be remembered that although medical evidence to the cause of death is desirable it is not essential in all cases of homicide. In the absence of medical evidence, the Court can infer the cause of death from the circumstances of the evidence adduced before it.” See State V Sunday (2019) LPELR-SC.709/2013, 18-19, F-C, per Okoro, JSC; Tobi V State (2019) LPELR-46537(SC) 10-14, E-A, per Sanusi, JSC; Saleh V State (2018) LPELR-46337(SC) 20-22, E-A, per Augie, JSC.

Consequently, where there is evidence that the deceased was hale and hearty before the occurrence of an offending act and death is instantaneous or nearly so, and there is no break in the chain of events from the time of the act that caused injury to the deceased to the time of death, the death of the deceased will be attributable to that act, even without medical evidence of the cause of death.

In the case of Posu V State (2020) LPELR-52518(SC) 7-10, A, Eko, JSC relying on a previous decision of the Supreme Court on the issue of the necessity or otherwise of medical evidence in proof of the cause of death, stated as follows: “The dictum of Karibi-Whyte, JSC in Eric Uyo V AG Bendel State (1986) 2 SC 1, 31, 32-33 on the principle of causation, which the Respondent’s Counsel drew our attention to, is quite apposite.

The learned jurist stated: “The principle of causation dictates that an event is caused by the act proximate to it and in the absence of which the event would not have happened – so long as the cause of death is traceable to the injury inflicted by the accused, he would be held criminally responsible. See R v. Holland (1841) 2 M & W 351; R v. McIntyre (1847) Cox CC 379.” The important consideration for determining responsibility is whether death of the deceased was caused by such injuries. See R v. Effanga (1969) 1 All NLR 339.

Even without any medical evidence, the proximate connection between the act of the Appellant striking the deceased with a knife on the chest (as he admitted) and the deceased slumping and dying on the spot immediately, in the circumstance, erase any reasonable doubt that it was the act of the Appellant that caused the death of the deceased. Medical evidence, in the circumstance, is unnecessary: Ayo Gabriel V. The State (1989) 12 SCNJ 33; Owenso V Agbehin (1967) NMLR 120.

It is not in every case of homicide that medical evidence is imperative for proof of cause of death.” (Emphasis supplied) Thus, in situations where, from the testimonies of the witnesses, the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such situation arises where death was instantaneous or nearly so. In the instant case, there was no evidence of any intervening factor that could have caused or aggravated the death of Hassan Mukhtar.

The death of the deceased could therefore be regarded as instantaneous since there was no break in the chain of causation that could be attributed to the death of the deceased besides having been brutally beaten up by the Appellant and others charged along with him, with slaps, a baton and an electric cable wire. In these circumstances, the absence of medical evidence in that Exhibit I, the medical report tendered by the prosecution did not state the cause of death since the deceased was pronounced dead on arrival, cannot be regarded as fatal to the case.

See also Ukpong V State (2019) LPELR-46427(SC) 27-28, A-C; Ahmadu V State (2014) LPELR-23974(CA) 60-61, C-F.

From the case as presented by the Respondent through its witnesses, evidence abounds that the deceased died a few hours after he was beaten up by the Appellant and co-accused persons while in the custody of the police in the investigation room at Gwange Police Station. This evidence was not successfully controverted by the Appellant.

Thus, based on the position of the law that a Court can infer the cause of death from the evidence and circumstances of the case, I am satisfied that the findings of the trial Court that the death of Hassan Mukhtar was caused by the acts of the Appellant and others, notwithstanding that no medical evidence was led by the Respondent, is infallible.

I therefore decline to tamper with it. ​The third ingredient of the offence is whether the Appellant, by beating the deceased about his head and chest, along with other persons, intended to cause his death or that he knew that death or grievous injury would be the likely result of his actions, the learned trial Judge considered the nature of the weapons used and the parts of the body upon which they were used in his Judgment.

In particular, at page 59 of the printed Record are the deductions that led to his findings and they are reproduced hereunder: “On intent, it can be inferred from the nature of weapons used and the part of the body smack (sic). There is evidence that the deceased was beaten with Police baton and it even got broken, that shows the force with which the deceased was beaten. PW3 said the deceased was beaten before her eyes. They beat his head and chest and they matched on him.

Beating someone with Exhibits E1 and E2 on the head and chest and matching him at the same time, leaves the Court in no doubt that accused persons cared not if the deceased died or they knew or had reason to believe he could die. A man intends the natural consequences of his act. See Section 19 Penal Code. From the foregoing, I hold that the accused persons knew death or grievous bodily injury was the result of their acts.” These are logical and reasonable deductions made from the evidence highlighted. They are also in alignment with the law.

See Kolade V State (2017) 8 NWLR (Pt. 1566) 60, 118, C-E. I therefore decline to disturb them. Also, the submission of Counsel for the Appellant that the conviction of the Appellant was based on the statements of his co-accused persons is baseless, as my analyses and findings above clearly establish. The conviction was largely based on the evidence of PW3, PW4, as well as Exhibits A, C, H, E1, E2 and I. On the assertion that the evidence of PW3 and PW5 were contradictory, there is nothing further than the truth. PW3 did not testify that she saw any open physical injuries on the deceased.

All she stated was that he could not stand, walk and talk after his encounter with the Appellant and co-accused persons. She also witnessed when some police officers, including the Appellant and the 2nd accused person, beat him on his head and chest as soon as they arrived at Gwange Police Station, even before he was taken into the interrogation room. Thus, the fact that PW5 stated that he did not see any injuries on the corpse of the deceased, does not in any way amount to a contradiction of the evidence of the PW3.

Besides, it is quite pedestrian and common knowledge to state that not all injuries sustained by a person are visible to the naked human eye. For instance, internal injuries, bone fractures, etc., can mainly be diagnosed upon the conduct of proper medical examinations and/or tests. Finally, the evidence of PW2, PW5, PW6 and PW7 was not hearsay as they simply served as the connecting tissue between other relevant and admissible pieces of evidence amassed before the trial Court.

To break it down, as aforesaid the evidence of PW2, the father of the deceased, confirmed that when the deceased was arrested from his home on 19-07-19, he was hale and hearty. He also testified that he was subsequently called to identify the corpse of his son on 20-07-19 at 11:00am at the hospital, which he did and thereafter buried him eleven (11) days after his death.

PW5, PW6 and PW7 were investigating Police officers at Gwange Police Station and the State CID Maiduguri respectively, to whom the Appellant and other accused persons made their extra-judicial statements; some of whom also visited the scene of crime. Their evidence therefore only comprised of the actions they took in the course of their investigations into the circumstances of the death of Hassan Muktar.

The law is trite that this in no way constitutes hearsay evidence. ​Therefore, based on all the above findings, I find that, contrary to the submissions and contentions of learned Counsel for the Appellant, all three ingredients of the offence of culpable homicide not punishable with death under Section 224 of the Penal Code, were proved by credible evidence against the Appellant. I therefore also resolve this issue against the Appellant and in favour of the Respondent. Having resolved both issues against the Appellant, I find no merit in the Appeal. It fails and is dismissed.

Accordingly, I affirm the judgment of the High Court of Borno State in Suit No. BOHC/MG/CR/25/2020 delivered on 10 March, 2021 by A.B. Kumalia, J., as well as the conviction and sentence of the Appellant.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had the privilege and read in advance, the lead judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA, which has just been delivered. I agree with the reasoning and conclusion reached by my Lord for dismissing the appeal. In this vein, I too, unhesitatingly dismiss the appeal and affirmed the judgment of the lower Court in Charge No. BOHC/25/CT12/2020, delivered on the 10th March 2020, by A. B. KUMALIA J.

​EBIOWEI TOBI, J.C.A.: I have read the lead judgment delivered by my learned brother, J. H. Sankey, JCA. My lord has exhaustively covered the field in all the issues and matters arising from the judgment of the lower Court, the grounds of appeal and the submission of Counsel. My lord did not only cover the field but stated the proper position of the law involved. I agree with the reasoning and conclusion therein. The lower Court was therefore in sound footing in convicting the Appellant for the offence he was charged under Section 224 of the Penal Code.

I adopt the judgment as mine and have nothing useful to add except to warn Police Officers that while carrying out their statutory duty of arrest, investigation and detention, they must do so within the confines of the law and with the fear of God. They are not allowed by law to misuse their statutory power or indeed to use their power arbitrarily. Section 341 of the Police Regulations Cap P19 made pursuant to Section 46 of the Police Act makes any Police Officer who misuses his power to be liable. See Rev.

Polycarp Mathew Odiong vs Assistant Inspector General of Police, Zone 6, Calabar (2013) LPELR-20698 (CA). The apex Court made this point clearly in Chief  Gani Fawehinmi vs IGP & Ors (2002) LPELR-1258 (SC) in these words: “It is inconceivable that such wide powers and duties of the police must be exercised and performed without any discretion left to responsible police operatives.

Unless a statute which confers powers or imposes duties expressly or by necessary implication excludes the exercise of discretion, or the duty demanded is such that leaves no room for discretion, it is my view that discretionary powers are implied and whenever appropriate, exercised for salutary ends.

In R. v Commissioner of Police of the Metropolis ex parte Blackburn (1968) 2 Q.B 118 at 136, Lord Denning M.R. observed inter alia: “Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere.” ​No Court should accommodate the misuse of power by any Police Officer. The lower Court rightly in my view did not and his lordship of this Court in the lead judgment has not. I will also not allow this. I condemn the action of the Appellant.

For every human action, there are consequences and so the power drunk Appellant will have to pay for his action that has claimed human life. ​For the above reason and much more for the fuller reasons in the lead judgment delivered by my learned brother J. H. Sankey, JCA. I also dismiss this appeal as lacking in merit.

Judgment

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment) : Appellant and two other persons – Jamilu Mohammad and Basiru Musa – were charged before the High Court of Kano State with the offences of conspiracy, kidnapping and culpable homicide punishable with death contrary to Sections 97(1), 273 and 221 of the Penal Code Law of Kano State. Appellant was the second accused person in that charge while Jamilu Mohammad and Basiru Musa were 1st and 3rd accused persons respectively in all three counts of the charge.

The subject of their said crimes is a little kid called Aliyu Aminu Ahmed (alias Hadan or Haidar). He was just about five to six years old at the time of his kidnapping and eventual killing by appellant and his cohorts, which was said to have taken place on 4/03/2014. ​Among six witnesses called by the prosecution to prove its charges was the deceased’s father, Alhaji Aminu Mohammad, a business man. He testified as the prosecution’s third witness (P.W.3).

Appellant’s own elder brother, Umar Mohammad, testified as P.W.1, while one Yusuf Lawan, a 21-year-old electric generator repairer, testified as (P.W.2). Mr.

Lawan, P.W.2 swore in his testimony that at about 4pm on the fateful 04/03/2014 day of the kidnapping of the deceased, he was returning a customer’s power generator to him when he saw appellant holding a small boy of about six years old, who he, P.W2, said he did not know. ​ Umar Mohammad (P.W.3), the businessman father of the deceased, commenced his testimony by saying that he knew all three accused persons; that he had in fact previously seen 1st accused person Jamilu on three occasions in front of his house and when asked what he was doing there, 1st accused replied that he was a scrap collector.

He said he there and then warned 1st accused not to come near his house again and even instructed his guardsmen not to allow him in front of his house. The next time he saw 1st accused and his co-accused persons including appellant, he said, was at the State Security Department Office following his arrest with appellant for the kidnapping and killing of his now deceased son, Haidar.

He had this to say on the utterances and conduct of appellant and his co-accused persons at the State Security Department Office when he met them there: ‘It was there I got to hear their argument accusing each other.

I also know the 2nd accused person (appellant) at the office of the SSS and I was able to recognize his voice as the person who called me on phone and have been communicating with him over the kidnap of my son.” (Italics mine) As regards the events of 04/3/2014, he testified that he received a phone call from his wife at about 6.30pm that the deceased had still not returned from school and all search conducted for him both at his school and the neighborhood had proved abortive.

P.W.3 said he went to the school and inquired from a girl who used to go to school with the deceased but she told him that one Primary 4 pupil took him out. When pictures of the Primary 4 pupils of the school were shown to the girl, she was unable to identify the particular boy among them. He was still in the school when he received a phone call that someone had brought a letter to his house containing instruction that if his child was missing he should contact one Mai Anguwar through telephone number 08168971435 contained in the same letter. That letter was tendered in evidence as Exhibit A.

He called the number but it was switched off so he sent a text message and called again and the phone was picked. He introduced himself and the person on the other end told him that he wanted to assist him; that his boss had brought one boy called Haidar for him to keep and when his boss returned he came with a woman and he overheard them negotiating for the sale of the boy and the woman bought the boy for ₦30m; that he wished to assist P.W.3 and asked him how much he would pay him. P.W.3 said he offered ₦500,000.00. Finally, they agreed on ₦2m.

The person asked whether he had the money that night but P.W.3 pleaded with him to give him his son; that he would give him the money in the morning but the person refused. He said he received another call from a different number in which the caller asked him how early he could give them the money but he again pleaded with the caller to give him his boy that night; that he was even ready to give him something as mortgage, but the caller refused. He said he gave the phone numbers to a relative of his who works with the State Security Services.

He was later sent a Guaranty Trust Bank (GTB) account, which account later turned out to belong to appellant’s elder Umar Muhammad (PW1), to deposit the ransom. He reported the matter to the police and was instructed by the SSS to deposit the money with the GTB account, with them assuring him that they had tracked the persons. In the next morning, P.W.3 received a call again inquiring whether he had deposited the ransom as agreed. That call, he was emphatic, was from appellant who he further said had been the same person speaking with on the matter all along.

He replied appellant that he was on his way and went to bank to transfer the ₦2m to the GTB account of P.W1. After he had deposited the money, appellant, he said, called him to inform him that the deceased had been injected and was fainting so he should hurry up and deposit the money, to which he replied that he had already done. Appellant later called again and when he asked if he, appellant, had seen the money, appellant told him that he wanted to tell him something; that he, P.W.3 should forgive him. He replied that until he saw his son he would not be able to forgive him.

Appellant insisted that he forgive him first. Appellant still pleaded for his forgiveness, told him where his son was and then switched off his phone. Appellant phoned him again and asked him to go to an uncompleted building near a brick factory in a place called Kuregeni to pick his son. He passed this new information to the SSS who also accompanied him to the said uncompleted building but did not find the deceased there. The D.P.O. Mariri Police station he said later called to inform him that they had found a corpse so he should come and identify it.

When he went, he saw a corpse inside a sack which turned out to be the corpse of his son with his eyes full of blood. He added that the Police took the deceased to the hospital for autopsy but he collected the corpse from them and buried it. ​The girl, who he earlier referred to as the one that used to escort the deceased to school, he said, was his house-help called Hajara. When she was taken to the SSS, he said she was able to recognize appellant as the person who took the deceased from his school on the fateful 04/03/2014.

He said her parents have since taken her away from him out of fear that appellant could kill her, she having identified appellant. Under cross-examination, PW3 confirmed among others it was appellant that called him on phone; that he was able to identify appellant by his voice; that appellant spoke to him about 15 times on phone. He said he was not aware that appellant was a student of his son’s school, but he saw him donning that school’s uniform at the SSS office upon his arrest.

He clarified in cross-examination that the deceased was not taken to hospital; that he, P.W.3, was not a medical doctor but he saw injection marks on his deceased son’ corpse with the eyes also bulging.

Appellant’s elder brother, P.W.1, who like P.W.3 and P.W. 2 also testified in Hausa language, in his evidence confirmed how appellant called him to give him his GTbank account number for a friend of appellant to pay in money and how he later saw, to his astonishment, ₦2m being paid to his account on the 5th of March 2014, which tallies with the day P.W.3 said he paid the ransom for his son to that same account. ​ P.W.4 and 5 from the Police and SSS respectively confirmed the evidence of the P.W.3 as regards the parts they played in the incident and how the deceased’s body was recovered.

The last witness for the prosecution was P.W.6 from the National Population Commission to confirm the death of the deceased, registration of that death and to tender the Certificate of Death. Appellant and his co-accused persons testified in their defence and called no witnesses to support their testimonies denying the offences. Appellant denied having anything to do with the kidnapping or death of the deceased or even knowing or speaking to P.W.3.

He however confirmed his elder brother P.W1’s testimony that on 5/3/2014 he, appellant, actually called P.W.1 and asked for his Gtbank account to help a friend, who appellant in his defence claimed was one Luqman of Bayero University Kano, pay funds into it. He said P.W.1 actually called later to confirm that the said amount was paid. Appellant said he had no idea of where his said friend Luqman was presently; that he, appellant did not even know him before the incident; that he did not make the statement, Exhibit C, accredited to him by the S.S.S. Officer. He said the S.S.S.

Officer, P.W.5, wrote in Exhibit C by himself and put in there whatever he felt like putting. ​ In her judgment of 23rd October 2016, Amina Adamu Aliyu, J., of the High Court of Justice of Kano had no difficulty finding that the prosecution had proved its case against appellant and his two co-accused persons and so convicted them as charged. She anchored her decision first on the criminal law doctrine of last seen and on the totality of the circumstantial evidence adduced by the prosecution.

She summarized her decision this way: “On the whole the accused persons have been able (sic: unable) to rebut the presumption (that) being the last persons to have seen the deceased alive they were either the ones that killed him or know who the killers are. I do not believe them to be witnesses of truth. “In the light of the overwhelming evidence against the accused persons, I am satisfied that the accused persons were the ones that caused the death of the deceased by injection of lethal chemical and strangulation.

“The prosecution has therefore proved their case against the accused persons for the offences of conspiracy, kidnapping and culpable homicide punishable contrary to Section 221 of the Penal Code, Sections 273 and 933 of the Penal Code.” ​Dissatisfied, appellant has lodged the instant appeal of six Grounds to this Court against it and formulated the following three issues for determination: 1. Whether he (appellant) had fair hearing and fair trial having regard to the entire circumstances of his trial, conviction and sentence to death. 2.

Whether the trial Court was right in convicting him for the offence of conspiracy and culpable homicide punishable contrary to Sections 97 and 22(b) of the Penal Code Law of Kano State 1991 having regard to the fact that there was no evidence of expert to ascertain cause of the deceased’s death. 3. Whether the prosecution proved the three offences against him beyond reasonable doubt. ​ Appellant argued his issue 1 from two fronts.

First, he listed the three ingredients of the offence of culpable homicide punishable with death namely that the deceased died; that the death of the deceased was caused by him; and that his act or omission which caused the deceased’s death was intentional with knowledge that death or grievous bodily harm was its probable consequence. He then submitted that no single witness linked him to the death of the deceased; that rather, the case of the prosecution was based on speculation and suspicion which cannot be the basis of conviction.

He argued that in the face of the ambiguity as to cause of death of the deceased, the trial Judge was duty bound to resolve the ambiguity in his favour and not convict him as he did. The second limb of his argument on this same issue was that P.W.1, P.W.2, P.W.3 and P.W.6 all testified in Hausa Language yet no translation was provided for him; that where an accused does not understand the language of the Court and was not interpreted to him, it vitiates the entire proceedings.

On issue 2, appellant again argued that medical evidence was necessary in the case to ascertain the cause of death of the deceased or link him to it but was not adduced; that there was also no evidence of common design between him and the other accused persons to commit culpable homicide so the trial Court was again wrong. ​ On issue 3, he again argued that the prosecution did not prove its case beyond reasonable doubt against him; that the prosecution’s case, particularly the evidence of P.W.2, was full of material and irreconcilable contradictions; that whereas P.W.2 claimed he had several telephone conversations with him, P.W.2 also admitted that he had never seen him for even once.

He said the conflicts in the evidence adduced by the prosecution created serious doubt on the case of the prosecution which should have been resolved in his favour. The State did not respond to the appeal so the appeal will be determined on appellant’s arguments alone. In my opinion, the appeal raises only the following two issues: 1. Whether appellant was denied fair hearing/trial by reason of the lower Court’s omission to provide him an interpreter in respect of the testimony of P.W.1, P.W.2, P.W.3, and 6 who all testified in Hausa Language. 2.

Whether the prosecution did not prove its case beyond reasonable doubt against him and the trial Court wrong in convicting him on the three charges.

Issue 1: As regards the first issue posed by him, appellant seems to have taken for granted that the Court can assume that an accused person does not understand the language of the Court or in which witnesses before it testified even without the accused person making any such complaint to it.

The law is well settled to the effect that Courts are not in a position to know by themselves or even assume that an accused person does not understand the language of the Court so it is the duty of the accused person and his counsel to inform it that the accused person does not understand the language in which a witness is testifying and if they fail to claim that right at the trial Court, they may not be able to raise it on appeal. See Mallam Madu v. State (1997) LPELR-1808 (SC); R. v. Eguabor (1962) ALL N.L.R. 285; Paul Onyia v. State (2008) LPELR-2743 (SC) p.10-11.

In Madu’s case (supra) Adio, J.S.C., after a thorough review of the cases on the point, stated the position of the law on the issue thus at p.16-17: “The well established practice in relation to provision of an interpreter in superior Courts mentioned above, the question of providing an accused person with an interpreter will only arise under Section 33(6) of the Constitution of the Federal Republic of Nigeria, 1979, where the accused person cannot understand the language used at the trial of the offence.

As the Court cannot reasonably assume or presume that every accused person in criminal proceedings before it would not understand the language used at the trial, it is the duty of the accused person or his counsel, acting on his behalf, to bring to the notice of the Court the fact that he does not understand the language in which the trial is conducted, otherwise it will be assumed that he has no cause for that complaint. See State v. Gwonto (1983) 1NSCC 104; (1983) SCNLR 142.

The fact that the accused does not understand the language in which the trial is being conducted is a fact well known to the accused and it is for him or his counsel to take the initiative of bringing it to the notice of the Court at the earliest opportunity or as soon as the situation has arisen.

If he does not claim the right at the proper time, before any damage is done, he may not be able to have a valid complaint afterwards, for example, on appeal.” Here Appellant in his statement (Exhibit C) to the S.S.S. not only even identified himself as Hausa man from Katsina State, he also stated in Court that he was raised in Katsina, Kaduna and Kano States, all of them Hausa communities, a fact I am obliged to take note of by dint of Section 124(1)(a) of the Evidence Act 2011.

He never even complained to the trial Court that he did not understand his said native Hausa language which some of the said four prosecution witnesses including his own elder brother P.W.1 testified in; on the contrary, his counsel even cross-examined each of those witnesses at length. This complaint of appellant is in the circumstances not open to him. Issue 2: Whether on the evidence adduced the prosecution did not prove its case beyond reasonable doubt against appellant and the trial Court wrong in convicting him of the three charges.

The answer to this question can only go one way: for the prosecution not only got the right offender, it also proved beyond all reasonable doubt (if not even beyond all shadow of doubt) his guilt. In the first place, the lower Court, it must be noted, found appellant guilty first on the doctrine of last seen. By that doctrine the law presumes that the person last seen with a deceased person before his death is responsible for his death, provided the circumstantial evidence is also overwhelming and points at no other person or persons but him.

It is thus up to such accused person, in this case appellant, to rebut the presumption by giving an acceptable explanation as to how the latter met his death. See Oladapo v. State (2020) 1 SCNJ 91; (2020) 7 NWLR (Pt. 1723) 238 AT 251.

Here, the evidence is that appellant was the last person to be seen with the deceased Haidar before his death. That was testified to by P.W.2 who swore that he saw appellant holding the deceased around 3.00 pm of the very 04/3/2014 the deceased was kidnapped and therefore failed to return home after school.

Appellant’s counsel never suggested in cross-examination that P.W.2 did not see him or that P.W.2 had any reason to testify falsely against him. ​In addition is also the evidence of P.W.3 on appellant’s repeated communications with him on telephone regarding payment of ransom for his deceased son, which communications P.W.3 further swore continued even after the death of the deceased with appellant even pleading for P.W.3’s pardon for what had to his knowledge befallen the deceased even after P.W.3 had paid the ₦2m ransom demanded by appellant.

Counsel to appellant made some arguments about P.W.3 admitting that he never saw appellant all through the said discussions so P.W.3 may not be in a position to properly identify appellant as the person that spoke with him. Counsel seems not to realize that identification of a person takes diverse forms including identification by voice alone: see Archibong v. State (2000) 14 NWLR (Pt. 1000) 349 AT 371 (S.C).

He also seems to have conveniently overlooked P.W.3’s further evidence that he met appellant and his co-accused person’s at the S.S.S. office accusing each other of complicity in the offences. P.W.3 was not cross-examined on that by appellant’s counsel, meaning that it is not disputed by appellant. ​ There is also the evidence of appellant’s own brother, P.W.1, as to how appellant prevailed on him to make available to him his GTB account for the ₦2m deposit ransom. That deposit, which was paid, has since turned out to be the ransom for the deceased paid by P.W.3.

P.W.1’s unchallenged evidence that P.W.3 actually made the said ₦2m deposit and appellant even called him to confirm it, to the extent that even when P.W.1 quoted a wrong figure as the amount deposited, appellant corrected him by telling him that he must be mistaken, that what was deposited into his account was ₦2m and not the lesser amounts P.W.1 thought he saw. Appellant could have only had that knowledge of the exact amount deposited in P.W.1’s account as a result of his prior communications with the depositor, in this case P.W.3.

Appellant in his witness statement also confirmed most of these pieces of evidence. All of these not only point unequivocally at appellant as one of the co-conspirators in the kidnapping and eventual killing of the deceased but even its mastermind, I therefore have no difficulty supporting the judgment of the High Court of Kano State that Respondent proved its charges against appellant beyond all reasonable doubt and the lower Court correct in its judgment convicting him as charged.

In the result, I find this appeal completely lacking in merit and hereby dismiss it and affirm the judgment of the lower Court.

ITA GEORGE MBABA, J.C.A.: I agree completely with the reasoning and conclusion of my learned brother, B. M. Ugo, JCA, in the leading Judgment, that this Appeal is devoid of merit and should be dismissed. It is accordingly dismissed by me.

The depth of depravity of the mind of Appellant and his cohorts for subjecting a little infant child to a torturing death, in the course of kidnap and seeking to extract ransom (and even when the ransom had been paid) is frightfully devilish, especially in the face of Appellant’s foolish and unintelligent denial of the crime, in Court, instead of breaking down in regret and repentance! It is indeed very sad that the lure of money (Mammon) has become so strong, in recent times, to induce such brutish conducts as kidnapping and brutal killings by young ambitious persons who want easy money!

The Holy Scripture (the Bible) has already said it all, that the love of money is at the root of all evil – 1 Timothy 6:10. I too dismiss the Appeal.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA, I am in complete agreement with the reasoning and conclusion reached that this appeal is unmeritorious and it ought to be dismissed as lacking in merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.

Judgment

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment) : This appeal is against the judgment delivered on 17th July, 2018 in the High Court of Bauchi State holden at Bauchi. In the High Court (the Court below), the Appellant was convicted for the offence of culpable homicide contrary to Section 221 of the Penal Code. He was sentenced to a prison term of twenty-five (25) years. The facts of the case as can be made out from the evidence of the witnesses called by the Respondent include the following salient ones.

According to the PW1 he was standing with his brother at about 8:30pm when the Appellant and one other person approached and the Appellant asked them a couple of questions and then stabbed PW1’s brother with a knife on the chest. The PW1 went to the Special Anti-Robbery Squad and reported the incident. When members of the Special Anti-Robbery Squad went to the scene they were told that the victim had been taken to the hospital. The PW1 went home to report before proceeding to the hospital.

Then he was told that the victim of the stabbing had died. ​In his defence, the Appellant said that some people came to borrow his motorcycle.

He told them it was night. He was going home. One of them brought out a knife and chased the Appellant. The Appellant took to his heels and started shouting for help. People gathered and asked him what was happening. He told them that somebody wanted to snatch his motorcycle. The following day while he was discussing with some people, those who approached him the previous night came again and said they were going to snatch the motorcycle. They brought out three knives. One cut him on his arm. He used his motorcycle lock to hit one of the attackers.

According to the Appellant the weapons tendered in Court were not recovered from him. On 13th July, 2021 the Appellant applied for and was granted extension within which to appeal against his conviction and sentence by the Court below. Upon the grant of the application, the Appellant on 22nd July, 2021 filed a notice of appeal containing two grounds of appeal.

From the two grounds of appeal, the Appellant in an Appellant’s brief filed on 15th September, 2021 presented the following lone issue for determination: Whether the prosecution had proved the essential ingredients of the offence of culpable homicide against the Appellant? (Grounds 1 and 2). The Respondent formulated a similar issue thus: Whether the prosecution has proved the offence of culpable homicide beyond reasonable doubt against the appellant to warrant his conviction. (Distilled from Grounds 1 and 2).

Arguing the appeal learned counsel for the Appellant contended that the Respondent did not satisfy the requirements of the law as regards the ingredients of the offence charged. The Court below was therefore wrong in holding that it did. It was contended that the entire case of the Respondent revolved around the mere proof that the Appellant stabbed the deceased. This fact simpliciter did not establish the key ingredients of the offence charged, it was argued.

The Court was referred to the vital ingredients of culpable homicide which are: (i) the death of a human being; (ii) the act of the accused which caused the death; and (iii) the accused knew that death would be probable but not just a likely consequence of his act. The Court was referred to Dahiru v The State (2018)14 NWLR (Pt.1640) 567 at 577. ​It was submitted that these ingredients must be proved beyond reasonable doubt by the prosecution. Failure to prove these elements conjunctively entails that the charge fails, it was submitted.

The Court was referred to Adamu v State (2019) LPELR-46902 (SC), Oforlete v. State (2000) 1 LPELR-2270 (SC) and Jimoh v State (2014) 3 MJSC 1 at 38. The prosecution, it was submitted, has a duty to prove that the specific act of the Appellant which caused the death of the deceased was the stabbing of the deceased. This is an ingredient of the offence to be proved beyond reasonable doubt, it was submitted. This cannot be presumed as the Court below did, it was argued.

That merely because the Appellant allegedly stabbed the deceased and he died of injuries sustained thereof did not establish his guilt. None of the five witnesses called by the Respondent gave such evidence, it was contended. The Court was referred to State v Ogbubunjo & Anor (2001) LPELR -3223 (SC) 12. ​Evidence of PW1, it was contended, only proved the stabbing and did not prove that the deceased died from the effect of the injuries sustained from the stab wounds. That there was no medical evidence certifying the death of the deceased as resulting from the stabbing.

Also that no evidence was led as to the cause of the death of the deceased. It was submitted that the failure to prove that the stab wound resulted in the death of the deceased entails that a key ingredient of the offence which is that an act of the Appellant resulted in the death of the deceased – had not been established beyond reasonable doubt. On his own part learned counsel for the Respondent submitted that in a criminal trial the prosecution is required to prove its case beyond reasonable doubt and proof beyond reasonable doubt does not mean proof beyond all shadow of doubt.

That it simply means establishing the guilt of the accused person with compelling and conclusive evidence. That is a degree of compulsion which is consistent with a high degree of probability. The Court was referred to Smart v State (2014) 9 NWLR (Pt.1518) 447 and Agbo v The State (2006) 6 NWLR (Pt.977) 545.

It was submitted that in a charge of culpable homicide under Section 221 of the Penal Code as in the instant case, the prosecution is required to prove the following: a) That the person the accused is charged of killing actually died. b) That the deceased died as a result of the act of the accused person. c) That the act of the accused person was intentional and he knew that death or bodily harm was the probable consequence. The Court was referred to Haruna v A.G. Federation (2012) NWLR (Pt.1306) 416 and Nkebisi v State (2010) ALL FWLR (Pt.529) 1410.

The Appellant, it was contended, had confirmed in his confessional statement Exhibit ‘A’ that the deceased died. It was argued that it was the act of the Appellant that caused the death of the deceased as shown by the evidence of five witnesses called by the Respondent and Exhibits A-D1. It was contended that by using a knife to stab the deceased on the chest, the Appellant knew that death would be the probable consequence of his act. It was submitted that a man is presumed to intend the natural consequences of his acts and the test to be applied is that of a reasonable man.

The Court was referred to Gamba v The State (2000) FWLR (Pt.24) 1449. ​It was contended that the need for medical evidence to ascertain the cause of death was not necessary taking into account the circumstances of the death of the deceased. It was clear, it was further argued, that it was the act of the Appellant that caused the death of the deceased. The Court was referred to Azu v State (1993)6 NWLR (Pt.299) 303. Evidence of PW1, it was argued, corroborated the confessional statements of the Appellant Exhibits ‘A’ and ‘B’.

It was contended that the defence of self-defence was not available to the Appellant because, the PW1 said that, the Appellant was the aggressor and there is no evidence to show that the deceased was in possession of anything during the incident. The law both ancient and modern is that in a criminal trial the burden of proof is on the prosecution to prove the guilt of an accused person beyond reasonable doubt. The burden never shifts. Even where an accused in his statement to the police admitted committing the offence the prosecution is not relieved of the burden.

If an accused person gives an account which is consistent with his innocence and could be true and is not proved to be untrue he is entitled to an acquittal. This is because in such circumstances there must be a doubt with regard to his guilt. ​Proof beyond reasonable doubt means that it is not enough to suspect a person of having committed a criminal offence. It means that there must be evidence which identifies the person accused with the offence and that it was his act which caused the offence.

See the decisions of the Supreme Court in Igabele v State (2006) NWLR (Pt. 975) 100, Aigbadion v State (2000) 4 SC 1 (Pt. 1)1 and the decision of this Court in Okafor v State (2006)4 NWLR (Pt.969)1.

By virtue of Section 221 of the Penal Code to secure a conviction of an accused person for Culpable Homicide punishable with death, the prosecution must prove the following: (a) That the death of a human being took place. (b) That such death was caused by the accused person. (c) That the act of the accused person that caused the death was done with intention of causing death; or that the accused person knew that death would be the probable consequence of his act. All these ingredients must be proved before a conviction will be secured.

See Adava v The State (2006) 9 NWLR (pt. 984) 152 and Isah v The State (2017) LPELR 43472. A successful plea of defence of self-defence negatives the existence of an offence. This means that if a person kills another person in defence of any person from unlawful violence or in defence of property, it is excused and it does not amount to manslaughter or culpable homicide not punishable with death. See Section 33(a) of the 1999 Constitution (as amended) andAminu v State (2019) 7 NWLR (Pt.1672) 481.

In the instant case, the Appellant at the earliest opportunity in his statement to the police Exhibit ‘B’ stated that the deceased with others tried to snatch his motorcycle the previous night. In the process they tried to stab him with a cutlass but he managed to escape. He shouted and people came to his help. The following day while riding the motorcycle the same people threw a bench on the road in front of him. He ran into the bench. He fell. The people came and stabbed him with a cutlass and knife. That it was his friend Dauda Mahamood who stabbed the deceased in defence of the Appellant.

That some policemen came. They took him (Appellant) to the police station. Thereafter the policemen took him to the (ATBUTH) hospital in Bauchi for treatment as a result of the injuries he sustained on his head and hand. ​His friend who helped him ran away after the incident. About six years after the Appellant made the above statement, he maintained in Court in his defence that the deceased and others assailed him two consecutive evenings. It was on the second evening that he was struck on the arm with a knife.

On the above evidence, the Court below sought to consider if the defence of self-defence was available to the Appellant and rightly so. But the Court below in my view did not consider the whole evidence available to the Appellant in that respect. Apart from the case of the Appellant that his assailants threw a bench on the road as he approached on the motorcycle leading to him running into it and falling down, the Appellant stated that he was attacked with cutlass and knife by the deceased and the other assailants.

If the Court below had considered fully the defence of the Appellant particularly his first statement to the police, it probably would not have come to the following conclusion: “The action of the accused person in stabbing the deceased with a knife on his chest cannot be described as commensurate to the injuries inflicted on him by throwing a bench in front of his motorcycle.” It is the law that once there are reasonable grounds for an accused person to believe he was in danger the amount of force used by him to preserve his life becomes immaterial.

It is not the law that a person threatened must take to his heels and run like Usain Bolt. All the accused person needs to show is that he did not want to engage in the fight and apprehension of possible death or great violence to his person. If the Court is left in doubt as to whether the accused person was acting in self-defence, he should be acquitted. See Aminu v State (supra) page 493.

The defence of self-defence will only fail if the prosecution shows beyond reasonable doubt that what the accused did was not done by way of self-defence. See Apugo v State (2006)16 NWLR (Pt.1002) 227. PW1 who apparently was an eye witness in his evidence said that the Appellant had a knife and the other person had a cutlass. But the Respondent tendered a cutlass and two knives. There is no evidence how it came about these weapons. ​On the other hand, the Appellant in his statement to police Exhibit ‘B’ named those who attacked him and inflicted the injury on him.

No attempt was made by the prosecution to investigate this. The Appellant in the same statement said he was taken by police to the hospital for the treatment of the injury he sustained. This was not denied by the police. Evidence of Appellant in my view is more credible. No attempt was made to rebut it or show that it was not true. As pointed out earlier, the Appellant showed a scar in Court of the injury inflicted on him by the people who attacked him among them the deceased.

For the Appellant to be attacked two consecutive nights with cutlass and knives particularly when on the second day he was forcefully brought down while riding his motorcycle before being confronted with those weapons and striking him on the arm, the Appellant had reasonable ground for believing that he was in danger.

It did not therefore matter that the deceased was struck on the chest with a knife, according to the Appellant by his friend in defence of the Appellant. ​The prosecution led no scintilla evidence to show that what the Appellant did even if he was the person that struck the deceased was not done in self-defence. The Appellant was therefore entitled to an acquittal. The only issue for determination is resolved in favour of the Appellant and against the Respondent. The appeal is allowed. The conviction and sentence of the Appellant by the Court below are hereby quashed.

The Appellant is acquitted and discharged.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now, the judgment just delivered by my learned brother JAMES SHEHU ABIRIYI, JCA (PJCA). I agree with the reasoning and conclusion reached thereat that the appeal is meritorious and should be allowed. I also allow the appeal and abide by the orders made therein.

OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: Having read in advance of the lead judgment delivered by James Shehu Abiriyi, JCA, I am fully in agreement with his erudite judgment which has taken into consideration the crucial facts and circumstances surrounding this case.

These pertinent facts were overlooked by the trial Judge who wrongly convicted the Appellant for the offence of culpable homicide contrary to Section 221 of the Penal Code. ​I am not left in doubt that the Appellant ought to have been availed of the defence of self defence in the light of the uncontroverted and credible evidence elicited by the Appellant based on the evidence of the injury sustained by him as well as his statement, Exhibit B wherein he gave an account of how he was attacked and the inflicted injury upon him.

The defence of self defence is open only to an accused who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm. He is entitled to use force to defend himself as he believes on reasonable grounds to be necessary to protect himself from danger, and he is entitled to so even though such force may cause death or grievous harm. See R v. Dummeni (1955) 13 WACA 75 see also Ilu vs. State 2014 LPELR-24610 CA. Appellant had reasonable apprehension of danger.

He was waylaid whist on his motorcycle when a bench was thrown on the road, this led to his falling off the motorcycle followed by being attacked with cutlass and knife by the assailants, the deceased inclusive. ​The following day he was dragged down from the same motorcycle and threatened by the use of weapons, these incidents to my mind portends of danger, the fact that he struck the deceased on the chest in self defence cannot be ruled out. ​It is for the foregoing reasons and the fuller decision of his lordship that I am inclined to associate myself with the lead judgment.

Accordingly, the judgment of the lower Court is dismissed and the conviction of the Appellant is set aside.

Judgment

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment) : Appellant and one Mohammad Abdullahi were tried and convicted before the High Court of Kano State for the offences of culpable homicide punishable with death of one Abubakar Shuaibu on the 9th day of March, 2015 and of conspiring to commit that same offence. The two charges read as follows: 1.

That you Abdulmalik Muhammad and Muhammad Abdullahi, adult, of Tarauni Local government, Kano State, within the Kano Judicial Division, on or about the 9th March, 2015 at about 1230 hrs along Ring Road, Unguwa Uku did agreed to do an illegal act to wit, committed the offence of Conspiracy punishable under Section 97 of the Penal Code (Cap 105) Laws of Kano State of Nigeria. 2.

That you Abdulmalik Mohammed and Muhammad Abdullahi, adults, of Tarauni Local Government Area of Kano State, within Kano Judicial Division on or about the 9th March, 2015 at about 12.30 hrs along Ring Road, Unguwa Uku did committed Culpable Homicide Punishable with death, in that you caused the death of one Abubakar Shuaibu of Tarauni local government area of Kano State by strangulating him in the neck and pushed him into the water with the intention of causing his death and thereby committed an offence punishable under Section 221 of the Penal Code (Cap 105) Laws of Kano State of Nigeria 1999.” ​ The case of the prosecution was that appellant and his co-accused person along with the deceased took the deceased’s motorcycle to the prosecution’s first witness (P.W.1) Nasiru Ahmad’s Workshop on the fateful 9th day of March, 2015 for vulcanizing work, deposited it with P.W.1 and all three of them crossed to the other side of the road and disappeared.

About four hours later, according to P.W.1, only appellant and his co-accused person returned to the workshop and were seen by P.W.1 trying to break the lock of the motorcycle, apparently to take it away. When P.W.1 asked appellant and his co-accused where the deceased was, they simply told him that they wanted to take the motorcycle away.

At that point, P.W.1 mentioned, he observed that appellant and his co-accused were drunk and were holding a bottle which he called ‘piya piya’ and were ‘malingering’, even as he added that both accused persons and the deceased were sober when they first went to deposit the motorcycle with him. He said he drew his colleague’s attention to what appellant and his co-accused person were trying to do and went to report his observations to the Police. Upon getting to Mariri Police Station, he learnt that the deceased had died.

He nevertheless reported the matter to the police, made statement and left his phone number with them. ​ P.W.3, Sgt. Isa Malachi, who was assigned to investigate the case at Mariri Police station before its subsequent transfer to the Kano State C.I.D., in his evidence recounted P.W.1’s observations as stated above.

P.W.3 said he arrested appellant and his co-accused person for what appeared to the police to be homicide, especially as appellant and his co-accused did not raise any alarm at the pond where the deceased drowned but instead went to break and remove his motorcycle from P.W.1’s custody. He said Police on the same day engaged men of the Fire Service Department and even local divers to recover the body of the deceased from the pond but to no avail as they could not spot it.

It was only on the following day, being the 10th of March, 2015, he said appellant showed the search party the exact location of the pond where the deceased drowned and his corpse was recovered (see last paragraph of p. 17 of the records to the first paragraph of p.18). When asked by the police to explain how the deceased fell into the water, he said appellant and his co-accused claimed that the deceased fell into the water by himself to swim but was drunk and so drowned.

Under cross-examination, P.W.3 said the Police did not believe that explanation of appellant and his co-accused because the deceased was still wearing shirts and trousers when his corpse was discovered, which he said wouldn’t be if the deceased really entered the pond to swim as claimed by the appellant and his co-accused. He said if the deceased really entered the water to swim, he would have pulled off his shirts and trousers.

Though P.w.3 under cross-examination admitted before the Court that pictures were taken of the recovery of the deceased’s corpse, those photographs (Exhibits P5 and P5a), which turned out quite revealing as regards whether the deceased was dressed in trousers and shirts or simply a swimming gear when his body was recovered, were for reasons best known to the prosecution not tendered by Respondent even as they were in its custody.

It was only through the adroitness of appellant’s counsel, one Alhassan Adamu, during cross-examination of the second Investigating Police officer (P.W.4), that the said photographs showing the real state of the body of the deceased upon its recovery from the water, were recovered from the custody of the prosecution by the same defence counsel and tendered in evidence.

The same P.w.3, I should also mention, in the course of his evidence-in-chief, tendered without challenge the statements appellants and his co-accused made to the Police at his Mariri Police Station before the transfer of the case to State CI.D. Kano. The two statements were admitted in evidence and marked exhibits P1 and P3 respectively. ​ Besides these two, an uncle of the deceased and the Policeman at State C.I.D. who investigated the complaint upon its transfer there two days after the incident testified as P.W. 2 and 4.

P.W. 2 claimed to have joined the police in the search for the deceased’s corpse in the pond and was emphatic that it was appellant that finally showed the police where the deceased drowned. P. W. 4 on his part, besides telling the Court the investigation he conducted, tendered the second set of statements appellant and his co-accused person made at the State CID, Kano. They were admitted in evidence as Exhibits P3 and P4.

In their defences, appellant and his co-accused person, as against their statements to the police tendered without challenge where they admitted accompanying the deceased (they even called him by his name Abba) in pushing his motorcycle to the Vulcanizer and how all three of them left to a pond to bath where the deceased according to them later fell into the water and drowned, denied even knowing the deceased at all let alone having anything to do with his death. They also denied knowing one another before their arrest and subsequent arraignment.

In fact, they claimed the police was bribed by P.W.2, the uncle of the deceased, to implicate them. ​ In his judgment of 09/05/2019, the trial judge, Nasiru Saminu, J., of the High Court of Kano State while admitting that there was ‘no direct evidence linking appellant and his co-accused to the death of the deceased’, nevertheless rejected their denials and the explanation they put forward and held the prosecution to have proved beyond reasonable its case against them and convicted them as charged on both counts.

He founded his decision principally on the criminal law doctrine of ‘last seen’ after also taking into account the conduct of appellant and his co-accused after the death of the deceased as earlier testified to by P.W.1.

His Lordship reasoned this way in arriving at his conclusion: “In this case, the person drowned in the pond died immediately as such thereafter because in the evening of 9th March, 2015 when he was seen alone and fell into the pound he was not seen alive again but his lifeless body was removed from the pound the next day 10th March, 2015 so the necessary inference to be drawn from this circumstances is that the deceased met with his death as a result of been drown (sic) in the pond, I so hold.

“The question that will follow is who was responsible for the deceased been drown (sic) inside the pond. Here also we could not find a direct evidence linking the accused person with the death of the deceased. However, from the available circumstantial evidence, it can be safely held that the accused persons and no other person were responsible for the death of the deceased. The evidence goes as this: The 1st and 2nd accused along with one other (later identified as the deceased) came to Pw1 a vulcanizer Pw1 at about 4:00pm at 9th March 2015.

According to Pw1, three of them crossed the road and went away. Later around 6:00pm 1st and 2nd accused persons came back to the Pw1 in a state of semi intoxication and were trying to force the key of the deceased motorcycle opened. On being questioned by the Pw1, they did not give any satisfactory answer to Pw1 only that they said they wanted to take the motorcycle to their parent. Pw1 said he knew that the motorcycle belonged to the deceased or the 3rd person the 1st and 2nd accused came along with because he was the one who locked the motorcycle and put the key in his pocket.

“In Exhibits P1 and P2, the accused person admitted been (sic) with the deceased person on the fateful day and according to them he fell inside the river they stated that people like Ilela, Ala, lsya and Malam were there when the deceased fell inside the pond and help the accused persons to get the deceased out but could not. Surprisingly, none of these people mentioned by the accused person was called to give evidence. Surprised still was that when the accused person went back to Pw1; the vulcanizer they did not inform him of what happened to the deceased.

They were only attempting to break his motorcycle lock and take it away. “Worst still is that the 1st and 2nd accused when giving oral evidence denied knowing the deceased forgetting that they had admitted going to the pound along with him in their extra-judicial statements Exhibit P1 and P2 recorded on 10th March, 2015 when the matter was still fresh in their mind. These statements were admitted without any objection by the defence.

It will be too late in the day for the accused persons to denying knowing the deceased because Exhibits P1 and P2 considered along with the Evidence of Pw1, it is clear that the 1st and 2nd accused were together with the deceased on the 9th March, 2015 and went to the pond together on that day their retraction notwithstanding. In Nasiru Vs. State (2016) LPELR-41806 (CA), it is settled that a voluntary confession which is admissible against an accused person does not become inadmissible merely because the accused person who made had retracted. However, in Haladu Vs.

State (2015) LPELR-26002(CA), it is settled that a voluntary confession which is inadmissible against an accused person who made had retracted. However, it is desirable and indeed the practice that where an accused person retracts or resile from his confession, the Court should look for some evidence outside the confession which will render the confession plausible or true’. “In this case, the 1st and 2nd accused were seen by Pw1 together with the 3rd person who later appeared to be the deceased person. He saw when three of them crossed the road and left their motorcycle with him.

The 1st and 2nd accused confessed in Exhibits P1 and P2 that they were together with the deceased at the pound where the deceased swan and drowned inside the pond. The body of the deceased was recover (sic) from the pond when the 1st accused pointed out the location where the deceased downed in the pond. This confirms what was contained on the Exhibits P1 and P2 that the 1st and 2nd accused were indeed together with the deceased at the pond on that fateful day contrary to their oral evidence that they never knew the deceased, it is merely an afterthought and I reject it.

“It is also in evidence that the 1st accused pointed to the fire service man and the local divers the location where the deceased drown inside the pound. The body of the deceased was recovered from that location as per the evidence of Pw2 and Pw3. Exhibits P1 and P2 shows the body of the deceased been removed from the pond. This piece of evidence confirmed that the 1st and 2nd accused were at the pond with the deceased and were left seen by Pw1 whom they kept their motorcycle with before proceeding to the pound but later 1st and 2nd accused came without the deceased person.

Thus, the 1st and 2nd accused in this circumstance owe an explanation as to the whereabouts of the deceased and if he is dead what are the circumstances that led to his death. However, surprisingly they did not proffer any explanation when asked by Pw1 but were hastened to force the lock of the deceased motorcycle opened. In Exhibits P1 and P2, the 1st and 2nd accused claimed that one Ala, Malam Iseyi were there when the deceased drowned in the pond but the accused did not call these people to testify.

“The accused person throughout the trial did not give any explanation as to the whereabouts of the deceased whom they were last seen with or the circumstances of his death. “The only conclusion to be drawn in the circumstances is that the 1st and 2nd accused were responsible for the death of the deceased person, I so hold.” “In Kolade Vs. State (2017) LPELR 42362 (sc), it was held that”– the law presumed that the person last seen with the deceased bears full responsibility of the death of the deceased per Ogunbiyi in his contribution Lord Justice Adekeye JSC (as he then was) in Hammer Vs.

A.G Federation (2012) 9 NWLR (PART) 1306 416 SC) had this to say: ‘The doctrine of last seen means that the law presumes that the person last seen with a deceased bears full responsibility of his death. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal’.” Appellant does not agree with that judgment hence, this appeal. Briefs of Argument, including a Reply Brief of appellant, were exchanged by Mr. Habeeb A.

Oredola for Appellant and Miss Aisha Ado Abdullahi for the Respondent holding the fiat of the Hon. Attorney General of Kano State to defend the appeal. Mr. Oredola for appellant distilled the following three issues (the first being rather very presumptuous on the state of the evidence) from appellant’s six grounds of appeal: 1. Whether having regard to the porous and speculative evidence adduced by the Respondent, the lower Court ought to have disregarded and acquitted the appellant, when neither the offence of conspiracy nor culpable homicide was established by the Respondent. 2.

Whether the learned trial judge did not err in law in relying on the doctrine of last seen in convicting appellant for the offence of conspiracy and culpable homicide when there was sufficient evidence before the lower Court that the deceased was in company of several other persons at the time of his death. 3. Whether the failure of the lower Court to consider the exculpatory evidence contained in Exhibits P1 and P3 of appellant and testimony of the prosecution witnesses did not occasion a miscarriage of justice.

Aisha Ado Abdullahi for Respondent simply saw only one issue arising from appellant’s six grounds of appeal and framed it thus: “Whether from the totality of the evidence before the Court the lower Court was right in convicting and sentencing appellant.” Appellant’s arguments: Arguing appellant’s issue one, Mr. Oredola first submitted, correctly, I should say, that appellant was standing trial for a capital offence so the prosecution had the onus to adduce cogent evidence pointing irresistibly to his guilt to secure conviction. To discharge that onus, counsel submitted and cited Ahmed v.

State (2018) LPELR-46606 (CA), the prosecution must prove conjunctively that (1) the death of a human being had taken place, (2) that such death was caused by the accused person, and (3) that the act of the appellant that caused death was intentional or appellant knew that death would be the probable consequence of his act.

He said the prosecution was only able to establish the death of the deceased but failed woefully to establish that his death was homicide or even the precise cause of his death let alone that appellant was responsible for his death; that there was absolutely no evidence on the records to support the charge as framed that the deceased was strangulated in the neck and then pushed into the water let alone by appellant.

He said none of the prosecution witnesses was even certain of the cause of the deceased’s death and no autopsy report was even tendered by the prosecution to determine whether the deceased was strangled as framed in the charge. He cited Lori v.

State (1980) 8-11 SC 81 to submit that medical evidence was imperative in the circumstances of this case to prove that the deceased was strangled as alleged in the charge; that in the absence of cogent evidence dispelling the possibilities of cause of the deceased’s death, the evidence of the two Investigating Police Officers (P.W.3 and 4) regarding the cause of the deceased’s death was completely worthless.

He argued that since the prosecution witnesses failed to establish the precise cause of the deceased’s death, there was uncertainty as to whether he was drunk when he attempted to swim in the pond and drowned, as alleged by the appellant and his co-accused, or whether the deceased was strangled and pushed into the water to drown as alleged in the charge by Respondent. In the circumstances, the burden on the prosecution to prove its case against appellant beyond reasonable doubt to secure conviction was not discharged and the trial judge wrong in deciding otherwise, Counsel submitted. Mr.

Oredola labeled the evidence of P.W 2 and 3 and 4 speculative, hearsay and lacking in evidential value given their admission that none of them witnessed the death of the deceased. He said P.W.2 and 3 even contradicted one another on who pointed out where the corpse of the deceased was recovered from in the pond: that whereas P.W.2 (the uncle of the deceased) claimed it was appellant’s co-accused person that pointed it out, P.W.3 said it was the appellant himself that did.

Such contradiction, counsel submitted, raised doubt as to the veracity of the testimony of P.W.2 and 3 and ought to be resolved in favour of appellant. Counsel in fact urged us to discountenance the testimony of both witnesses.

As for the two Police Investigating Police officers (P.W.3 and 4), counsel said even though they ‘allegedly’, as counsel put it, obtained statements tendered as Exhibits P1 and P3 from appellant, none of them conducted any investigation to verify the authenticity of the contents of the said statements or even what P.W. 3 told the Court in his evidence that appellant and his co-accused told him that the deceased fell into the water to swim but was drunk and so drowned.

Learned counsel next directed the Court’s attention to the evidence of P.W.4 of the State C.I.D. that he also arrested five persons two of which were eyewitnesses. Counsel submitted that the admitted existence of the said eyewitnesses to the incident not only eliminates the doctrine of last seen applied by the lower Court in convicting the appellant, it also means that the evidence of those eyewitnesses was vital and should have been called by the prosecution.

The failure by the prosecution to call them, counsel argued, implies that their evidence would have been unfavourable to the case of the prosecution if called hence, they were not called and we should so presume, in support of which counsel cited Oshodin v. State (2000) FWLR (Pt. 90) 1336 AT 1347.

He said the trial judge also recognized the importance of calling the identified eyewitnesses in the case going by his Judgment where he said that people like Ilela, Ala, Isya and Malam whom the appellant mentioned were also at the scene when the deceased fell into the water ought to have been called by appellant and his co-accused but were surprisingly not called. Relying on Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1 AT 31-32 (SC), counsel submitted that failure to call a witness whose evidence is vital to the determination of the case is fatal to the case of the prosecution. ​ Mr.

Oredola next took on the evidence of the Vulcanizer (P.W.1) and also dismissed it as mere speculation and of no evidential value and hinged that submission principally on the admission of P.W.1 that he knew nothing about the death of the deceased. He argued that the alleged attempt of appellant and his co-accused to force open the motorcycle allegedly belonging to the deceased is not conclusive evidence of the guilt of the appellant and his co-accused, even more so when account is taken of the admitted drunken state of the two accused persons at that time.

It is possible, counsel submitted that given their state of inebriation, they may not have been even aware of what they were doing. That is as counsel also submitted that even the deceased’s alleged ownership of the said motorcycle was not proved. In any case, Mr. Oredola submitted that in any case the elements of the offence of attempted stealing of the said motorcycle and conspiracy to steal it, are distinct and separate from culpable homicide so it is speculative to rely on the fact of the alleged attempted stealing of motorcycle in convicting appellant for homicide as the lower Court did.

Counsel also submitted that the fact that appellant and his co-accused did not inform P.W.1 of the death of the deceased is also no proof or mens rea that the appellant caused his death by strangling and drowning him as alleged in the charge sheet; that all that was required of appellant and his co-accused person was to give an explanation to the Investigating Police Officer (P.W.3), which counsel said appellant did in his statement to the police so it was wrong of the trial judge to come to the far-reaching conclusion of appellant’s guilt on that account.

Learned counsel relied on the same facts above to also submit that a charge of conspiracy was also not made out by the prosecution so the trial judge was wrong in convicting appellant of it. He said there was no evidence from the prosecution to establish that appellant agreed with his co-accused person to kill the deceased or do any unlawful act; that it is not enough to say that because appellant and his co-accused were allegedly the last to be seen with the deceased they were in agreement to kill him.

Respondent, he argued, had the burden to show by direct evidence that appellant and his co-accused were acting in concert or in combination to accomplish or commit an unlawful act coupled with the intention to achieve the object of their agreement. Counsel also attacked the trial judge’s description and use of the two statements of the appellant to the police.

He submitted that not only was the statement of the appellant to the police which the lower Court relied on as confessional as regards his being last seen with the deceased not confessional, contrary to the position of the trial judge, there is even no reference in that statement or statements that appellant was alone with the deceased so the trial judge was wrong in concluding that appellant was alone with the deceased and proceeding to convict him on that basis. On issue 2, learned counsel submitted that the doctrine of last seen was wrongly applied by the trial judge. Relying on Mbang v.

State (2009) 12 SC (PT 111) 193 and Madu v. State (2012) 6 SC (PT 1) 80 and Igabele v. State (2006) 6 SCNJ 124, counsel submitted that the doctrine of last seen is not to be applied indiscriminately; that the doctrine will only apply where the accused person is the last to be seen with the deceased and is unable to give an explanation of how the deceased met his death.

In this case, he said, it cannot be said without equivocation that appellant was the last person to be seen with the deceased for the purpose of invoking the doctrine; that on the contrary even in their statements to the police appellant and his co-accused persons stated that they were not the last persons to be seen with the deceased, a fact counsel said was also confirmed by P.W.4 when he testified that “We arrested five people in connection with this case. The remaining three suspects were met at the scene so they were taken as eyewitnesses.

I forgot the names and were released on bail they are eyewitnessed (sic) in this case.” Counsel argued that the doctrine of last seen cannot be used as a last resort to link appellant to the death of the deceased; that for the doctrine to ground a conviction it must irresistibly and unequivocally lead to the guilt of the accused person. He said appellant gave a reasonable explanation of how the deceased met his death, namely that the deceased in his drunken state dived into the pond to swim and unfortunately got drowned.

He submitted that even though P.W.3 said the police were not satisfied with that explanation, they did not even investigate the explanation and no evidence was adduced to dislodge it. He submitted that on the contrary, the evidence of intoxication was corroborated by P.W.1 who testified that he observed that “appellants were drunk and were malingering.

One of them is holding a piya piya bottle.” Counsel submitted that, with the explanation offered by appellant regarding how the deceased met his death, the burden imposed on the appellant to proffer an explanation was adequately discharged and the burden shifted to the respondent to prove its case beyond reasonable doubt that it was indeed the accused that caused the death of the deceased.

That burden, he submitted, respondent failed to discharge so the doctrine of last seen was not available to be applied and appellant should have been acquitted. ​ On issue 3, learned counsel submitted that the lower Court failed to consider exculpatory evidence contained in the two statements (Exhibits P1 and P2) appellant made to police regarding the circumstances of the deceased’s death, namely, that the deceased dived into the pond on his own accord in his drunken state to take a swim and drowned in the process.

That is as opposed to the charge that states that he was strangled and pushed into the water by appellant and his co-accused.

Learned counsel repeated his earlier arguments that the evidence of PW4 that there were eyewitnesses to the offence supported the said explanation of appellant so the lower Court’s failure to properly evaluate appellant’s statements in arriving at his conclusion that appellant was responsible for the death of the deceased was unjustifiable and caused serious miscarriage of justice thus justifying the intervention of this Court in quashing the verdict of the lower Court convicting appellant.

Respondent’s arguments: Aisha Ado Abdullahi, Esq., for Respondent in arguing the single issue she framed submitted that all the ingredients of the offences of culpable homicide and conspiracy to commit that offence were proved by the prosecution from what counsel called the ‘circumstantial evidence’ of P.W.1. Citing State v. Raphael Sunday Ifiok (2019) LPELR-46943 (SC), learned counsel submitted that among the three methods of proof of criminal matters, namely eyewitness witness, confessional statement and circumstantial evidence, circumstantial evidence is the best and most reliable.

Counsel argued that even if one were to discountenance the evidence of P.W.2, 3 and 4, the verdict of the lower Court convicting appellant and his co-accused person would stand on the weight of the circumstantial evidence given by P.W.1 against them, particularly given the fact that appellant and his co-accused person refused to tell P.W.1 the whereabouts of the deceased even when he demanded of it from them and were rather were busy trying to steal the deceased’s motorcycle, which counsel submitted also confirms the fact of conspiracy between them.

Counsel also supported the trial judge’s reliance of the doctrine of last seen in convicting the appellant. On the argument of the appellant’s counsel regarding the prosecution’s failure to call vital witnesses, learned counsel submitted that the arrest made by P.W.4 of the State C.I.D. is not conclusive until after the advice of the Ministry of Justice, that that was why all the ‘speculated witnesses’ raised by the appellant, as Respondent’s counsel put it, were not on the Prosecution’s List of witnesses.

Learned counsel on behalf of Respondent submitted that on the basis of the foregoing arguments, the cases cited by appellant’s counsel on the prosecution’s duty to call vital witnesses and effect of failure to do so go to no issue; that if anything, it was appellant and his co-accused that raised the issue that they were with other persons in trying to rescue the deceased. More so, counsel submitted, appellant and his co-accused were even approbating and reprobating when they denied knowing each other.

Learned counsel concluded by submitting that the evidence of one single witness if cogent and reliable is enough to base conviction on and cited the cases of Ehimiyein v. The State (2017) ALL FWLR (PT 868) 728 AT 734 and Esene v. The State (2017) ALL FWLR (PT 910) 338 AT 345 S.C. P.W.1’s evidence, he said, met that benchmark so the judgment of the lower Court convicting the appellant as charged was in order. Mr.

Oredola for appellant in Appellant’s Reply Brief submitted that while it is conceded that circumstantial evidence is one of three ways of determining the guilt of an accused person, such evidence to sustain conviction must be compelling and lead to no other conclusion than that the accused person, in this case, the appellant, and no one else caused the death of the deceased. Counsel cited the case of State v.

Sunday (2019) LPELR-46943 (SC) p33-34 in support of that proposition and submitted that the evidence of P.W.1 who admitted under cross-examination that he did not know anything about the death of the deceased cannot qualify for that standard.

On Respondent’s counsel’s reliance on the trial Court’s reasoning of appellant denying knowing the deceased, as against his statement to the police Exhibits P1 and P3, learned counsel submitted that the fact that an accused person lied in Court or approbated and reprobated is not proof of his guilt. In support of that, counsel first cited the decision of the apex Court in Agbo v. State (2006) 1 SC (Pt. 11) 73 AT 79 and Dicta of Ikongbeh, JCA, of blessed memory in Ogidi v. State (2003) LPELR-10152 at p. 63-54.

Resolution of issue(s) It appears to me that the sole issue formulated by Respondent sufficiently encompasses all three issues of appellant and is enough to dispose of this appeal. I shall therefore adopt Respondent’s said sole issue in determining this appeal even as I shall rephrase it slightly to read: “Whether on the totality of the evidence before the lower Court, it was right in convicting appellant of the two offences of culpable homicide punishable with death and conspiracy to commit that offence.” That issue will involve considering all the complaints of Mr.

Ordeola for appellant including the applicability or otherwise of the doctrine of last seen relied on by the trial judge in convicting the appellant. Where a person is charged with a substantive offence and conspiracy charge, the practice is to first consider the main offence, for in most cases, the failure of the main offence also sounds the death knell of the conspiracy charge.

The substantive offence in this case is culpable homicide punishable with death. I have earlier reproduced it in this judgment. It charges appellant and one Muhammad Abdullahi with causing the death of the deceased Abubakar Shuaibu by strangulating him in the neck and pushing him into the water to drown, an offence punishable under Section 221 of the Penal Code (Cap 105) Laws of Kano State of Nigeria 1999.

It is Respondent’s bounden duty as the prosecution and the one asserting to prove beyond reasonable this charge as laid to secure conviction: see is what is required of it by Section 135 of the Evidence Act 2011. The 1999 Constitution of this country in its Section 36 (5) further drives that point home by stating that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty.

What is more, Section 36(6) of the same 1999 Constitution states that “Every person who is charged with a criminal offence shall be entitled to: (a) be informed promptly in the language that he understands and in detail of the nature of the offence. (Emphasis mine) It needs no gainsaying that it is in an attempt to comply with the above provisions of the law regarding the details of the offence alleged committed by appellant that Respondent at the lower Court, in framing its charge against appellant and his co-accused, stated, expressly, that they not only committed culpable homicide punishable with death but that they did so by strangulating the deceased and pushed him into the water.

The ingredients of the offence of culpable homicide punishable with death are (1) that the death of a human being has taken place, (2) that such death was caused by the accused person and (3) that the act of the appellant that caused death was intentional or appellant knew that death would be the probable consequence of his act. The prosecution must prove these ingredients conjunctively and beyond reasonable doubt to secure conviction: see Ahmed v. State (2018) LPELR-46606 (CA).

It can do that through any of three means, namely direct evidence of eyewitness to the offence; by confessional statements of the accused person admitting the offence, or by circumstantial evidence. See State v. Raphael Sunday Ifiok (2019) LPELR-46943(SC).

Here, the fact of the death of the deceased Abubakar Shuaibu is not an issue, for even appellant in paragraph 4.1.4 of his main Brief of Argument conceded that fact when he said that “the Respondent was able to establish the death of one Abubakar Shuaibu.” The only sticky point, and a very sticky one for that matter, is whether respondent was also able to establish that it was the act of appellant that caused the death of the said deceased, a point appellant has always denied and still denies in this appeal.

He stated so unequivocally in the same paragraph 4.1.4 of his main Brief of Argument that: “My Lords, while “the Respondent was able to establish the death of one Abubakar Shuaibu (‘the deceased’) had occurred, it failed woefully to establish that the death of the deceased was a homicide or the precise cause of death of the deceased person.

The evidence adduced by the Respondent failed to show that the appellant was responsible or caused the death of the deceased.” That is what this appeal is all about: Did respondent prove beyond reasonable doubt at the lower Court that he (appellant) was responsible for the death of the deceased and the trial judge right in finding that it did? As already pointed out, the trial judge held appellant and his co-accused responsible on the criminal law doctrine of last seen. Now, what is the meaning of that doctrine? In Oladapo v.

State (2020) 1 SCNJ 91; (2020) 7 NWLR (Pt. 1723) 238 AT 251 Abba Aji JSC explained it thus: “This doctrine [of last seen] means that the law always presumes that the person last seen with the deceased is presumed to be responsible for his death, provided the circumstantial evidence is overwhelming and leads to no other person or persons.” (Italics mine) In the same case Nweze, J.S.C., at p.255 NWLR also explained it thus: “It [the doctrine of last seen] creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death. …..

Thus, where an accused person was the last to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death.

In the absence of such an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that he (the accused person) killed the deceased.” It must be noted, however, that the doctrine of last seen itself is nothing but circumstantial evidence, even as its effect is to shift to the accused person the burden of rebutting by acceptable explanation the presumption, which the doctrine evokes, that he who was last seen with a deceased person prior to his death is his killer.

For confirmation that the doctrine is simply what in law is called circumstantial evidence, see again Oladapo v. The State (supra), line 36-37 of page 106-17 of 2020 SCNJ and paragraph D-H of page 251 (NWLR) where it was said by Abba Aji, JSC, that: “As circumstantial as the doctrine of last seen may be …” And later that: “The respondent at the trial relied on circumstantial evidence especially the doctrine of last seen.” I think Kekere-Ekun, J.C.A. (as she then was) in Alatishe vs.

The State (2013) ALL FWLR (Pt. 686) 552 AT 575 even drove the point further home when Her Lordship said with even a further caution on the application of the doctrine thus: “Circumstantial evidence to ground the conclusion that a person last seen with a deceased is his killer must be so compelling that it leads to no other conclusion and leaves no room for acquittal.” The long and short of all the foregoing is that for the doctrine of last seen, a rebuttable one for that matter to apply, it must be shown that appellant was the last person to have been seen with the deceased person before his death, (2) that appellant could not give an explanation of how the deceased met his death, and (3) that the circumstantial evidence against the appellant is so compelling that it leaves no room for acquittal.

The doctrine thus assume, so to speak, that the prosecution itself does not have direct evidence of who and what killed the deceased and so presumes that since the suspect or accused person was the last person to be seen with him before his death, he is his killer unless the suspect can offer an acceptable explanation of how the deceased met his death. That necessarily means that, where it is shown that there were other people with the deceased person besides the accused at the time of his death, or where there were eyewitnesses to such death, the doctrine would not apply.

So, the relevant questions here are: (1) Did the evidence on record not show that there were no other persons besides appellant and his co-accused at the time of the deceased’s death and if there were, was the doctrine of last seen still applicable to the case? (2) Does the circumstantial evidence adduced before the Court by the respondent point unequivocally to the guilt of the appellant and so support the lower Court’s reasoning that he killed the deceased and so responsible for his homicide?

As regards the first of these questions, it appears to me from the records of appeal (and I am in complete agreement with Mr. Oredola for appellant on his contention) that contrary to the finding of the trial judge, even from the side of the Respondent, there were other eyewitnesses, besides appellant and his co-accused, to the manner of the death of the deceased. That is shown first by the following evidence of P.W.4: “We arrested five people in contention (sic) with this case. The remaining three suspect (sic) were met at scene so they were taken as eyewitnesses.

I forgot the names and were released on bail. They are eye witnessed (sic) in this case. … I did not see the corpse of the deceased but I saw the picture. The corpse looks like someone who was strangled and drowned in the river.

I got this information [from] eyewitness.” In further support of PW4’s assertion above, the prosecution even listed among its witness in its Proof of Evidence one Lawal Garzali and remarked thus in front of his name: “To inform the Court that he is an eye witness to all that happened between the accused and the deceased.” See page 2 of the records. ​In these circumstances, the criminal doctrine of last seen would not apply, for its very doctrinal basis, namely, that appellant and his co-accused were alone with the deceased at the time of his death and so they alone are in a position to explain the circumstances his deceased death would not arise.

Incidentally too, the prosecution did not call any of its said ‘eyewitnesses’ to the offence; not even Lawal Garzali it cited in its Proof of Evidence. Doctrine of last seen, I therefore hold and find, was inapplicable to this case and the trial judge wrong in applying it as a basis for convicting appellant. ​I am also in agreement with Mr. Oredola for appellant that the evidence of the said ‘eyewitnesses’ and particularly Lawal Garzali identified and listed by the prosecution was vital to proof of respondent’s case that appellant strangulated and pushed the deceased into the water to drown.

The evidence of those ‘eyewitnesses’ is not only vital and crucial in that it would have also helped to puncture the explanation by appellant as confirmed by both P.W3 and 4 that the deceased leaped into the water by himself in his drunken state and got drowned.

Yes, appellant who is also said in his statement to police to have mentioned names of eyewitnesses to support ‘his’ said version of how the deceased met his end (he repudiated that statement in his defence at the trial) did not also call any of the said eyewitnesses to support his version, nevertheless, the position of our law is that he is presumed innocent of the two charges and it is the duty of the Respondent to prove his guilt beyond reasonable doubt. Any omission in that regard will therefore fall against the Respondent who had the onus to discharge and not against the appellant.

What is more, it is settled law that where a particular witness is necessary to be called to prove a disputed crucial fact in a criminal case, such witness must be called by the prosecution if not its case would be deemed not proved. See Omogodo v. The State (1981) NSCC 119 AT 128-129. That is the position of the case of the prosecution which the lower Court wrongly found proved on clearly inapplicable doctrine of last seen. Its decision was perverse even on this score alone.

But even leaving aside doctrine of last seen, it seems clear to me that, contrary to the position of the trial judge, the circumstantial evidence Respondent relied on fell far short of the standard required to secure conviction in this case. While it is settled law that the Court can properly rely on circumstantial evidence in proof of a charge, it is also settled that great care must be taken by the Court in relying on circumstantial evidence as the basis for conviction.

Circumstantial evidence must be narrowly examined to avoid the possibility of fabrication to cast aspersion on innocent persons. Circumstantial evidence must not only be cogent, complete and unequivocal, it must be compelling and lead to the irresistible conclusion that the accused and no else is offender. Circumstantial must have the exactitude of mathematics to be relied on.

The facts brought out by circumstantial evidence must be incompatible with innocence of the accused and incapable of explanation of any other reasonable hypothesis than that of his guilt and any reasonable doubt in that regard must be resolved in favour of the accused. See Igabele v. The State supra. Quite unfortunately, this case seems to be a classic one of fabrication of circumstantial evidence by the prosecution to undo appellant. I shall demonstrate what I mean by that.

In his evidence before the lower Court, P.W.3 of Mariri Police Station who was involved in the search and recovery of the corpse of the deceased from the water where it was drowned, in a clear bid to give the impression that the deceased was pushed into the water by the appellant and his co-accused as he claimed he suspected and was also alleged in the charge, told the lower Court the following at p.19 of the records regarding what the deceased was wearing when his body was eventually recovered from the river and what he made of it: “If he [the deceased] really entered the water to swim he would have pulled off his clothes… That is the reason why we are not satisfied with the information the two accused persons gave us. … “At the time we recorded (sic: recovered) the remaining (sic: remains) of the deceased, he was wearing a shirt and trouser.

Yes, the pictures of the deceased was (sic) taken.” ​ I have earlier remarked that the said photographs taken by the police of the body of the deceased at the time it was recovered were initially held back by the prosecution and it was only through the dexterity of the defence counsel during cross-examination of P.W.4 that they were recovered from the prosecution and tendered in evidence, again through the defence counsel Mr. Alhassan Adam, as Exhibits P5 and P5a.

Instructively, both photographs which form part of the records of the lower Court transmitted to this Court show that the body of the deceased was recovered with him putting on only a pair of swimming trunks/boxers and not shirts and trousers as P.W.3 claimed. That much is evident from Exhibit P5 showing the deceased being brought out straight from the river with half of his legs still in the water.

It shows him as putting on only swimming trunks and not ‘shirts and trousers’ as asserted by P.W.3 who also added that the said phantom shirt and trousers the deceased was putting on when he was recovered suggested that he was pushed into the river by appellant and his co-accused person, as he ought to have pulled of his shirts and trousers before leaping into the water if the version of appellant that he leaped into the water by himself was correct.

It is thus obvious that P.W.3 merely tried frantically to fabricate a story and circumstances to rope in appellant and his co-accused in line with his unfounded belief and the charge as framed before the Court. If anything, Exhibit P5 showing the deceased dressed only in swimming trunks upon his recovery from the water supports appellant and his co-accused person’s explanation to the police (P.W.3 and 4) that the deceased jumped into the water by himself to bath, possibly in his drunken state, and drowned.

That conclusion even flows from the very hypothesis of P.W.3 that if the deceased jumped into the water by himself as asserted by appellant and his co-accused he would have ‘pulled off his clothes”. Exhibit P5 confirms that the deceased in fact pulled off his clothes and was only in swimming gear in the form of swimming trunks when he fell into the water!

Put simply, the circumstantial evidence in the form of the photographs, particularly Exhibit P5, taken by the same prosecution of the state of the dead body of the deceased at the time of his recovery from the pond, which this Court as an appellate Court also has the power to evaluate and reach on its own decision (see Alhaji Aminu Ishola v. Union Bank of Nigeria Ltd (2005) LPELR-1550(SC) P.20-21, Okpiri v. Jonah (1961) 1 SCNLR 174, Bernard Amasike v.

The Registrar General, Corporate Affairs Commission & Anor (2005) LPELR-5407 (CA) P.56-57 not only shows the lie in the story of the prosecution and its witnesses and the charge of homicide laid against appellant and his co-accused by the Respondent; it supports the explanation of appellant and his co-accused to the police that the deceased dived into the water by himself and drowned. At any rate, the law is that any reasonable doubt in circumstantial evidence must be resolved in favour of the accused. See Igabele v. The State (2006) LPELR-1441 (SC), pages 30, 37.

That appellant and his co-accused person in their defence at the trial denied their statements Exhibits P1, 2 and 3 and 4, to the police, which fact the trial made quite heavy weather of in rejecting their explanation of the circumstances of the deceased’s death and convicting them, is also of no avail to the respondent. That an accused person lied in the witness box or even has, or had, a bad image is also not proof of his guilt. See Omogodo v. State (1981) NSCC 119 AT 128. In fact, Ikongbeh, J.C.A., of blessed memory could not have put the position of the law better when he said in Ogidi v.

State (2003) LPELR-10152 at p. 63-54 that: “The law is well settled that the mere fact a person lied is not proof that he is guilty. As Hurley, C.J. (Northern Nigeria) pointed out in Haruna & Anor v.

Police (1967) NMLR 145 AT 153, though a man may lie because he is guilty, he may as well lie because he is stupid or afraid or both and whether he is guilty or not.” That appellant and his co-accused tried to break and take away the motorcycle of the deceased upon his death (there is even no concrete that the said motorcycle belonged to the deceased) is also no conclusive proof that they killed him as suggested by the prosecution and the lower Court. That is even more so when account is taken of P.W.1’s evidence that appellant and his co-accused were drunk at that point.

At any rate, much as the attempt to remove that motorcycle may support a motive by appellant and his co-accused person to kill the deceased because of his motorcycle, assuming the evidence supported that reasoning which is not the case, it is also just as possible that they simply wanted to cash in on the death of the deceased to steal his motorcycle, just as it could be that they were simply looking for a fast way to run away from the scene of his sudden death.

Such attempt to run away even from scene of crime, it has been said, does not by itself amount to proof that the person so fleeing committed the offence he is fleeing from, for it is normal and in keeping with the human instinct of self-preservation for persons, guilty or not, to flee scene of crime. See Dosunmu v. The State (1986) 5 NWLR (PT 43) 658 AT 662, Queen v. Akinsanya (1961) WRNLR 222 AT 225. At any rate, evidence based on circumstances must be interpreted narrowly and any doubt in it should be resolved in favour of the accused: see again Igabele v. The State supra.

That is just as it is also the law that where evidence is capable of two interpretations, as in this case, the interpretation favourable to the accused person should be preferred. See Omoregie v. State (2008) 35 WRN 181 AT 190. ​I shall also say that in the absence of eyewitness evidence to the alleged strangulation, it cannot be seriously asserted that it is possible to ascertain without medical evidence, that the deceased was strangulated.

Except where the deceased was seen by eyewitnesses to have collapsed and died immediately from the strangulation rope of the suspect on his neck, whether or not a person died from strangulation is a scientific fact which can only be proved by persons skilled in that area, namely medical doctors and even more specifically pathologists: see Section 68 of the Evidence Act 2011; Endurance Alison v. State (2017) LPELR-42286 (CA) 23-24, Ahmed v. State (2001) 18 NWLR (PT. 746) 622.

Incidentally, without that scientific evidence establishing death by strangulation as charged, the issue of whether it is the act of the appellant that caused the death of the deceased does not even arise. See again Ahmed v.

The State (supra) at p.641-642 where Ayoola JSC delivering leading judgment had this to say: “Where a person is charged with an offence of culpable homicide, the sequence in inquiry is whether the person alleged killed is dead, the cause of his death and whether any act of the accused as described in Section 220 is the cause of death.”… “In a charge of culpable homicide, if the cause of death has not been proved, it is futile and illogical to proceed to consider whether it was the accused who caused the death.

The primary enquiry into the cause of death of a person is an enquiry into the biological cause of death. The question at that stage is what caused the death and not who. When what caused the death has been ascertained the question who caused the death is one of causal connection between the death of the accused and the biological cause of death.” (Emphasis mine) ​No post-mortem report was tendered to ascertain if the deceased actually died from strangulation.

In fact, the prosecution seems to have simply founded its assertion of strangulation of the deceased and pushing him into water to drown by appellant on the speculative evidence of the Police officer from State CID, P.W4 contained at page 22 of the records when he said: “I did not see the corpse of the deceased but I saw the picture.

The corpse look(s) like someone who was strangled and drowned in the river.” A finding that a deceased person was strangulated let alone one that could and did result in a conviction for homicide punishable with death cannot be founded on such speculative evidence of a policeman who did not even claim to had any training as a physician. Like Ayoola, J.S.C., again said in Ahmed v.

State supra at p.650: “Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence.

Whatever the reason for the inadequacy of evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.” (Italics mine) For all of these reasons, I am of the fixed opinion that Respondent did not prove that it is the act of appellant that caused the death of the deceased Abubakar Shuaibu. The Respondent therefore did not prove its charges of culpable homicide punishable with death and conspiracy to commit that offence against the appellant and the lower Court is wrong in convicting them as charged.

This appeal is therefore allowed and the judgment of the High Court of Kano State of 9th May, 2019 in Charge K/107C/2016 delivered by Nasiru Saminu J., convicting the appellant, including the sentence of death imposed on appellant, is hereby quashed/set aside. In their place, a verdict acquitting and discharging appellant Abdulmalik Mohammed of both charges of conspiracy punishable under Section 97 of the Penal Code Laws of Kano State of Nigeria and Culpable Homicide punishable with death punishable under Section 221 of the Penal Code Laws of Kano State of Nigeria is hereby entered.

It is further ordered that the appellant be released from custody/prison without further delay. NOTE: This appeal having been argued on 31/5/2022, judgment, ordinarily ought to have been given not later than 31st August, 2022.

Unfortunately, most of that period fell within the Annual Vacation of this Court which started from the 19th of July and only ended on 11th September, 2022, during which period I also had to attend a Court-sponsored Symposium abroad, in addition to my already very heavy workload of several other earlier pending judgments that I carried into and managed to deliver during the vacation, hence the little delay in delivery of this judgment.

ITA GEORGE MBABA, J.C.A.: A draft of the leading judgment just delivered by my learned brother, B. M. Ugo, JCA, was made available to me, ahead of time. My learned brother has, dutifully identified and discussed all the pertinent issues in the appeal, admirably, and I agree completely with him that the appeal is meritorious.

The trial Judge fell into grave error and hasty conclusion when he held that Appellant (with the co-accused) caused the death of the deceased, relying on the doctrine of last seen whereas the said doctrine could not apply in the case, in view of the facts that: (1) The evidence of PW4 had alleged that there were eye witnesses (including one Lawal Garzali), who saw all that happened between the accused persons and the deceased (before he died), which led to his death.

Such eye witness(es) needed to be called, being vital witness(es), to assist the Court to determine what/who, actually, caused the death of the deceased. And failure to call such vital eye witness was fatal to the case of the prosecution, and the presumption of law in Section 167(d) of the Evidence Act, 2011 applied that the prosecution deliberately withheld the evidence because same would expose the falsity of its position. See the case of Azubuike Vs.

The State (2019) LPELR-48238 CA, where it was held: “It is difficult to understand why the prosecution did not call the evidence of the said witness, who saw what happened, when the deceased was shot and saw the assailants. I think failure to produce the vital eye witness to give evidence at the trial can only mean that the Respondent (Prosecution) had something to hide and were not comfortable to call her to testify.

They (Prosecution) rather depended on PW1, PW2 and PW3, who came to Court to speculate on the incident, and opted to use the opportunity to implicate their immediate local enemies or opponents, those who recently had land dispute and altercation with the deceased, and they labored to give evidence to fix the Appellant at the scene of crime, even when the eye witness, who saw the shooting had said she saw the two boys who shot the husband, but did not know them!” See also Adamu Vs The State (2019) LPELR-46902 (SC), where it was held: ​”From the record, three witnesses were listed including one Benjamin James, stated as only eye witness at the scene of crime according to the evidence of PW1 but only PW1 testified.

It is true that prosecution is not obliged to call all listed witnesses nor the need for a host of witnesses to get a conviction but where there is a particular vital witness whose evidence is very crucial and important to the case of the prosecution in proof of the guilt of the accused, then such a witness must be called as failure to do so would occasion a fatality in proof of the charge as it would produce the presumption of withholding evidence suggestive of the fact that if that evidence were produced it would work against the prosecution and favour the accused.

See Section 167 (d) of the Evidence Act, 2011. Stated another way is that the vital witness is that witness whose evidence is fundamental as it determines the case one way or the other and failure to call that vital witness by the prosecution is fatal to its case.

See Ogudo v State (2011) 18 NWLR (Pt,1278) 1 at 31; State v Azeez (2008) 14 NWLR (Pt.1108).” Thus, the doctrine of last seen in criminal trial, cannot be invoked where there is evidence of an eye witness of the death and the cause of death of the deceased, outside of the Accused person(s). ​Secondly, where the charge alleged that the deceased was strangulated and pushed into the pond to drown, the ingredients of such charge must be proved, strictly, to establish the offence, and I think that can only be done by medical evidence (autopsy report), establishing the strangulation, in the absence of eye witness account.

Of course, the charge having asserted strongly that the deceased was strangulated before being pushed into the water to drown, that fact needed to be proved separately before any invocation of doctrine of last seen could be resorted to.

See Okoro Vs State (1988) LPELR-2494 SC: “…where death does not occur contemporaneously with or within a short time of the infliction of wound on the deceased, to enable the Court draw an inference that the deceased died as a result of the wound so inflicted, medical evidence establishing that the deceased’s death was caused by such wound becomes indispensable.” (dissenting) Per UWAIS, JSC. I too allow the appeal and set aside the conviction and sentence of the Appellant. I abide by other consequential orders in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother, BOLOUKUROMO MOSES UGO, JCA obliged me with a draft of the leading judgment delivered in this appeal. I entirely agree with the judgment and the way the issues were treated by my Lord. I have nothing more to add. I abide by the conclusion reached therein.

Judgment

ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Jigawa State High Court delivered by M.A. Sambo, J. on 31st October, 2013. The Appellant was arraigned before the High Court of Jigawa State on a lone count charge of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code.

The charge reads:- “That you Alhassan Musa (m) on or about 24th day of May, 2011 at about 12:00am at Nabai, Fulani settlement in Babura Local Government Area of Jigawa State within the Jigawa Judicial Division killed your wife by name Nanazabau Musa by using a matchet and cutting her neck and throat as a result she sustained injury and died as a result of the said injury and you thereby committed an offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code of Jigawa State.” The accused/Appellant pleaded not guilty to the above charge and the prosecution opened its case and called a total number of 7 witnesses and tendered 1 Exhibit.

The accused/Appellant opened his defence and called 2 witnesses. At the conclusion of hearing and address of Counsel, the trial Court in a considered judgment found the accused/Appellant guilty as charged and sentenced him to death. Dissatisfied with his conviction and sentence, the accused/appellant filed a notice of appeal in challenge of same.

The said notice of appeal contained 3 grounds of appeal couched thus:- GROUND ONE The learned trial judge erred in law when he held thus:- “Consequently, I am satisfied that the ingredients for the offence of culpable homicide supra have been established against the accused person by the prosecution.

I am therefore convinced beyond reasonable doubt that the accused person committed the offence of culpable homicide contrary to Section 221(b) of the Penal Code and punishable under the same section of the law when he caused the death of Nana Zabba’u (his wife) by cutting her neck with a sharp object on the neck on the 24th May, 2011. PARTICULARS OF ERROR i. The prosecution had failed to prove the essential ingredients of the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code Law, Cap 107, Laws of Jigawa State. ii.

None of the prosecution witnesses was an eyewitness to the crime. iii. None of the prosecution witnesses unequivocally linked the Appellant to the commission of the offence. iv. The evidence of PW2 and PW3 relating to the object allegedly used to inflict injury on the deceased recovered from the Appellant are contradictory and the same was not tendered in evidence. v. There was no cogent and reliable circumstantial evidence to justify the conviction of the Appellant. vi. The evidence of PW2 and PW3 are hearsay and inadmissible to establish that the Appellant killed the deceased. vii.

Exhibit A (the Autopsy report on the deceased) did not reveal the type of object that caused the injury on the deceased. GROUND TWO The learned trial judge erred in law when he held thus: “For the foregoing reasons, I am satisfied and I believed that the defence of alibi is not properly raised or established by the accused person for the prosecution to rebut same”. PARTICULARS OF ERROR i. The Appellant properly and timeously raised the defence of alibi, which defence was raised upon arrest of the Appellant and at the Police Station. ii.

The evidence of the Appellant that he raised the defence of alibi at the Police Station was not controverted or challenged under cross-examination. iii. The evidence of PW2, PW3 and DW2 corroborated the Appellant’s alibi. iv. The police refused to investigate the Appellant’s alibi which was raised at the earliest opportuned time. GROUND THREE That the judgment of the learned trial judge is unwarranted, unreasonable and against the weight of evidence.

In compliance with the practice and procedure of this Court, the Appellant filed his brief of argument on 31/08/2020 but it was deemed filed on 22/03/2021. In the said brief, two issues for determination were formulated. The issues are:- 1. Whether from the totality of evidence placed before the trial Court the Respondent proved all the ingredients beyond reasonable doubt for the offence of culpable homicide punishable under Section 221 (b) of the Penal Code of Jigawa State to warrant a conviction and sentence of the Appellant (Distilled from Grounds 1 and 3). 2.

Whether the trial Court was right in dismissing the defence of alibi raised by the Appellant (Distilled from Ground 2). The Respondent’s brief was filed on 08/11/2021 but deemed properly filed on 10/11/2021. The Respondent adopts the two issues for determination formulated by the Appellant.

In arguing issue one, learned Counsel for the Appellant Abdulaziz Ibrahim, Esq., submitted that it is settled that to secure a conviction on a charge of culpable homicide punishable with death, the prosecution must prove the following ingredients:- (a) That the deceased had died; (b) That the death of the deceased was caused by the act of the accused; and (c) The act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence. He referred to OGBA VS. THE STATE (1992) 2 NWLR (PT. 224) 164, ORJI VS.

THE STATE (2008) 6 MJSC 169 and OGIDI VS. THE STATE (2005) 5 MJSC 155. The charge against the accused must be proved by the prosecution beyond reasonable doubt. He argued that the prosecution failed to prove that it was the act of the accused that caused the death of the deceased. In other words, there was no evidence linking the cause of death to the Appellant. The evidence of PW1 is hearsay and was not an eyewitness to the commission of the offence.

PW1 also stated that he recorded the extra-judicial statement of the Appellant which was not tendered and he urged the Court to invoke the provision of Section 167 (d) of the Evidence Act. He argued that evidence of PW2 and PW3 is also hearsay. He argued that evidence of what a witness was told by other is hearsay and inadmissible. He referred to UBANI VS. THE STATE (2003) 18 NWLR (PT. 851) 224 and OZUDE VS. IGP (1965) 1 ALL NLR 102. He also submitted that the evidence of PW4, PW5, PW6 and PW7 did not link the Appellant with the death of the deceased.

PW4 who is a minor testified that she knows nothing about the incident and was not around when it happened, PW5 testified that he was home when he was informed of what happened and before he could reach the scene everything was over. PW6 on the other hand testified that he was sleeping when he heard the deceased screaming. He did not say it was the Appellant who inflicted the injury that caused the death of the deceased. PW7 who is a Police officer only took the Appellant’s statement at the State C.I.D. Dutse.

All these witnesses did not link the cause of death of the deceased to the Appellant and the trial Court ought to have discharged him. He argued that in the absence of direct evidence linking the Appellant with the death of the deceased, the Respondent resorted to circumstantial evidence which is not cogent and reliable to warrant the conviction of the Appellant. It is a settled law that circumstantial evidence must be so compelling that in the circumstances of the case, it could be inferred that no other person caused the death of the deceased save the accused.

Thus, circumstantial evidence must unequivocally point to an act of the Appellant. Its nature must be indisputable, cogent, positive, irresistible and conclusively point to no other person but the accused. He referred to LORI & ANOR VS. THE STATE (1980) 8 – 10 SC 81, JUA VS. THE STATE (2010) ALL FWLR (PT. 521) 1427, UDOEBRE & ORS. VS. THE STATE (2001) ALL FWLR (PT. 59) 1244 and IGBIKIS VS. THE STATE (2017) ALL FWLR (PT. 883) 1405.

The evidence adduced by the Respondent at the trial did not suggest the guilt of the Appellant as the circumstantial evidence was not so strong or cogent enough to suggest that the Appellant killed the deceased. The circumstantial evidence only amount to suspicion and no amount of it can sustain a conviction for homicide. He referred to ZUBAIRU VS. THE STATE (2015) ALL FWLR (PT. 794) 178, ALMUSTAPHA VS. THE STATE (2013) 17 NWLR (PT. 1383 350, IKOMI VS. THE STATE (1986) 3 NWLR (PT. 28) 340 and EZE VS. THE STATE (1976) 1 SC 125.

He submitted that it is a settled rule that where a circumstantial evidence is susceptible to two equally possible inferences, the Court should accept that inference which goes in favour of the accused. He referred to AHMED VS. NIGERIAN ARMY (2017) ALL FWLR (PT. 869) 813. Thus, the Appellant’s testimony that he ran away because he thought that it was armed robbers which evidence was not controverted by the Respondent, and the inference that he ran away because of fear of being arrested are two diametrical hypothesis that ought to be resolved in favour of the Appellant.

Therefore, the second ingredient of the offence was not established. He referred to TEGWONOR VS. THE STATE (2008) ALL FWLR (PT. 424) 1484. On issue two, he submitted the law is settled that a Court is bound to consider all the defences raised by an accused person. He referred to NWANKWOALA VS. THE STATE (2006) ALL FWLR (PT. 339) 801. That where an accused set up the defence of alibi and gives some facts and circumstances of his whereabouts, the prosecution is duty bound to investigate the alibi set up to verify the truthfulness or otherwise of the alibi. He referred to AYAN VS.

THE STATE (2014) ALL FWLR (PT. 740) 1409. The Appellant having informed the Police that he was not at home when the incident happened, it is their duty to investigate the alibi. The said evidence was corroborated by the evidence of DW2. The Appellant has a duty to establish his defence of alibi and that he did through DW2. He referred to OSUAGWU VS. THE STATE (2013) 1 SCNJ 33 and OFORLETE VS. THE STATE (2000) 7 SCNJ 162. Failure of the Police to investigate the defence of alibi set up by the Appellant ought to make the Court resolve the defence in favour of the Appellant and allow the appeal.

In arguing issue, learned Counsel for the Respondent, Mustapha B. Adamu, Esq., submitted that it is the duty of the prosecution to prove the charge against the Appellant beyond reasonable doubt and in a charge of culpable homicide punishable with death, the prosecution must prove that (i) the deceased died, (ii) that the death of the deceased was as a result of the act or omission of the accused and (iii) that the act or omission of the accused which caused the death of the deceased was done intentionally or carried out with the knowledge that grievous bodily harm was its probable consequence.

He referred to MUSA VS. THE STATE (2009) 15 NWLR (PT. 1165) 467. He argued that the first ingredient of the offence is not an issue as the prosecution was able to prove the death of one Nana Zaba’u Musa. The contention and argument of the Appellant is that the second ingredient is not proved as these is no evidence linking the death of the deceased to the Appellant. He stated that the prosecution can prove its case by calling eyewitnesses to the commission of the offence, by circumstantial evidence or by a confessional statement made by an accused person. He referred to EMEKA VS.

THE STATE (2001) 14 NWLR (PT. 734) 666. He argued that the trial Court convicted the Appellant through circumstantial evidence which is considered as the best evidence in establishing a case of murder. He referred to MUHAMMED & ANOR VS. THE STATE (2007) LPELR 1894 and ADDO VS. THE STATE (2020) LPELR 55521.

The Court is entitled to, where direct evidence of an eye witness is not available, the Court may infer from facts proved the existence of other facts that may logically tend to prove the guilt of the accused and from the judgment of the trial Court at PP. 96 – 98 of the record of appeal, its finding of fact was in line with the evidence of witnesses and other evidence before it.

He also argued that from the evidence of DW1 (the Appellant), it seems that he was the last person seen with the deceased before her death and he is bound to give an explanation as to the cause of the death of his deceased wife. He referred to DATTI VS. THE STATE (2021) LPELR 55173. Having been the last person seen with his wife when she was hale and hearty, it follows therefore that there is an irresistible conclusion that the Appellant killed her. ​ On issue two, he submitted that the burden of proving a particular fact rests on the party who asserts that fact.

He referred to Section 139(1) and (2) of the Evidence Act. Thus, the burden of establishing any defence lies on the Appellant. He referred to YARO VS. THE STATE (2007) 18 NWLR (PT. 1066) 215. He also stated that at the trial, the Appellant as DW1 testified that he went to Danuyawo village for a festival and was there when his wife died. The defence of alibi set up by the Appellant must be raised at the earliest opportunity and not during trial. He referred to NDIDI VS. THE STATE (2007) 13 NWLR (PT. 1050) 633.

It is therefore an afterthought for the Appellant to raise the defence of alibi at his trial. He argued further that the defence of alibi must be precise and specific. He referred to OCHEMAJE VS. THE STATE (2008) 15 NWLR (PT. 1109) 57. In the case at hand, the Appellant failed to disclose facts which will support his alibi by not disclosing where he was and who he was with when he went to Danuyawo village for a festival.

On the issue of withholding evidence on failure to tender the extra-judicial statement of the Appellant, he argued that the issue of withholding evidence must be credibly established by making a demand which the prosecution failed to honour. He referred to AUWALU VS. THE STATE (2020) LPELR 50323; AREMU VS. THE STATE (1991) 7 NWLR (PT. 201), BUSARI VS. THE STATE (2015) LPELR 2479, EGWUCHE VS. THE STATE (2018) LPELR 43975, OKERE VS. IGP (2018) LPELR 44178, ROBERT VS. IGP (2018) LPELR 44176, EWUGBA VS. THE STATE (2018) 7 NWLR (PT. 618) 262 and ADEKOYA VS. THE STATE (2010) LPELR 3605.

He urge the Court to resolve the two issues against the Appellant and dismiss the appeal. Now, I have gone through the issues for determination formulated in the Appellant’s brief of argument which issues were adopted by the Respondent, that notwithstanding it is my opinion that a resolution of this appeal can be made through only one issue for determination. The issue is:- Whether the learned trial judge was right when he convicted and sentenced the Appellant for the offence of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code.

All arguments as contained in both briefs of argument will be subsumed and considered under the above lone issue. ​ I think it would be pertinent to examine the evidence adduced by the prosecution at the trial. DW1 was PC Shittu Yakubu, a Police Officer. He testified that on 21/05/2011 while on duty at Babura Police Division two persons by name Alhaji Ado Dawai and Ahaji Habu reported that the accused Alhassan Musa residing at Nabai village killed his wife with a cutlass and ran away with the weapon. He also stated that some people have gone after the accused person.

They went to the scene of the crime where they met the deceased lying in her pool of blood. They took the deceased to Babura General Hospital where she was confirmed dead and an autopsy was performed. On their return to the Police station, they found that the accused has been arrested. He recorded his statement and the accused confessed that he killed his wife by using a cutlass on her. He gave his reason that his wife usually ask him where he was coming from at night and on that occasion, he told her that he was returning from his parent’s house and she did not believe him.

His wife then told him that if he is looking for another wife he should divorce her to which he replied that he cannot withstanding seeing her married to another man and he picked his cutlass and stroke her down. ​ PW2 was Gwabna Yusuf. He testified that on 21/05/2011, he in company of another went to a ceremony at Daudu Fulani settlement. On their way home, they saw the accused who requested for water to drink and they were only able to get some water at the next village. When they fetch the water they had to assist the Appellant to drink the water.

They continued their journey and sighted a vehicle coming their way and the Appellant said they should ran away. PW2 asked what the Appellant has done that if he is on the path of truth he should not run anywhere. But the Appellant fled. When the vehicle stopped the occupants asked PW2 if they had seen a young boy who just killed his wife. They joined the passengers in chasing the Appellant. Eventually, he was arrested and handed over to the Police. PW2 personally disarmed the Appellant and handed over the weapon to the Appellant’s relative.

Under cross-examination, he stated that they met the Appellant at Dantuba village and the passengers on that vehicle told them that the Appellant killed his wife. ​ PW3 was Auwalu Audu. He testified that they were returning to their village after attending a ceremony in another village when they saw the Appellant who asked them for some water to drink. They got some water at another village called Kwandagora and continued their journey. A vehicle drove past them and returned wherein the Appellant advised that they should run but he and his friend refused to run.

The Appellant ran away and PW2 picked the machete the Appellant dropped. The passengers on the vehicle asked if they saw a young man and they replied in the positive and told them that he has ran away. They pleaded with PW3 and PW4 to assist them in arresting him and the Appellant was eventually arrested at Rukutu village. They were then taken to Police station where the Appellant was detained. Under cross-examination, he stated that the Appellant was frightened when he saw that vehicle and asked us to run away and he might have his reasons for running away. PW4 was Maimuna Musa.

She testified that she knows the Appellant and she said she talked to the deceased about a boyfriend. She then went out and didn’t know what happened afterwards. ​ PW5 was Isah Usman. He testified that he was sitting at home when he was informed what happened and before they could reach the scene everything was over, the corpse was taken to the hospital and they were told to go back home and later to return to pick the corpse. They were asked to go to Dutse for further investigation. PW6 was Musa Yerima.

He testified that on 24/05/2011, he was sleeping in his house when he heard the deceased screamed. He didn’t know what happened between the Appellant and the deceased so he rushed to their house and found the deceased lying and groaning as if she was about to die. He held her and asked what happened but she could not speak. When he discovered that she was dead he asked his wife to call a neighbour who upon seeing what happened to the deceased left for Babura town. The village head was informed and he went to the scene together with Police officers who took the corpse to the hospital.

PW7 was Cpl. Nuhu Barnabas, a Police officer. He testified that he recorded the extra-judicial statement of the Appellant in Hausa language and later translated same into English language. The Appellant signed it and he was taken to a superior officer wherein he confirmed to be the maker. He also recovered a cutlass from the Appellant. He tender the statement of the Appellant, cutlass and a wrapper which were all rejected. Now, on the evidence adduced at the trial Court, the Appellant was found guilty and convicted accordingly.

The Appellant’s Counsel argued two main points in this appeal in urging the Court to quash the conviction and set aside the sentence. Firstly, he contended that the conviction of the Appellant based on circumstantial evidence cannot stand as the evidence is not strong and compelling and secondly, he argued that the trial Court ought to have accepted the Appellant’s defence of alibi. What constitutes culpable homicide has been stated under the Provision of 220 of the Penal code. The section provides that:- 220.

Whoever causes death – (a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or; (b) by doing an act with the knowledge that he is likely by such an act to cause death; or (c) by doing such rash or negligent act, commits the offence of culpable homicide.​ From the above, whoever causes death by doing any act with the intention of causing death or bodily injury as is likely to cause death or with knowledge that his act is likely to cause death or by doing such a rash or negligent act commits the offence of culpable homicide.

It must be noted that whether culpable homicide is punishable with death depends on the manner it was committed. The provision of Section 220 of the Penal Code encompasses in its definition both culpable homicide punishable with death and culpable homicide not punishable with death. The Appellant was charged and convicted under Section 221 (b) of the Penal Code.

It provides thus:- 221 Except in the circumstances mentioned in Section 222 culpable homicide shall be punished with death … a. … b. if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or any bodily injury which the act was intended to cause.

For the prosecution to secure a conviction under the above Section, the following ingredients must be proved:- (a) that death of a human being has occurred; (b) that such death has been caused by the act of the accused; (c) that the act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act; or that the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.

See ABUBAKAR VS. THE STATE (2017) LPELR 43197, ABDULLAHI VS. THE STATE (2018) LPELR 44455, ISAH VS. THE STATE (2017) LPELR 43472, GALADIMA VS. THE STATE (2017) LPELR 43469 and AHMAD VS. THE STATE (2019) LPELR 47973. It is long settled that the burden of proof with respect to criminal offences is on the prosecution, that the prosecution must prove the guilt of the accused beyond reasonable doubt. See Section 135 (1) of the Evidence Act. By proof beyond reasonable doubt, the law insists that every ingredient of the offence with which the accused stands trial must be proved by the prosecution.

Failure to prove any of the ingredients would result in the acquittal of the accused person. See OBI VS. THE STATE (2013) 5 NWLR (PT. 346) 68, BABATUNDE VS. THE STATE (2014) 2 NWLR (PT. 1391 298, SABASTINE VS. THE STATE (2020) LPELR 50319 and GAWONI VS. THE STATE (2021) LPELR 55470.

The burden on the prosecution is not beyond every shadow of doubt for absolute certainty is impossible in our criminal jurisprudence except in certain exceptional situations. Once the evidence is so strong against an accused as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable” the case will be said to have been proved beyond reasonable doubt. This can be attained by proof of all the ingredients of an offence. See ISAH VS. THE STATE (2018) 8 NWLR (PT. 1621) 346, EZEANI V.

FRN (2019) 12 NWLR (PT 1686) 221 and PHILLIP V. STATE (2019) 13 NWLR (PT 1690) 209. The prosecution is at liberty to prove its case by calling eye witnesses to the commission of the offence or by circumstantial evidence or by confessional statement made by an accused person. The prosecution can rely on any of the three modes or all of them to prove its case. See ADIO V. STATE (1986) 5 SC 94, ABIRIFON V. STATE (2013) LPELR 20804, GARBA V. FRN (2014) LPELR 24591 and MUSA V. STATE (2014) LPELR 22912. On the first ingredient of the offence, it is in evidence that Nana Zubba’u Musa is dead.

The evidence of PW1, PW5 and PW6 have all testified that Nana Zabba’u died. This evidence is not contested even by the Appellant either at the trial and in this Court. The law is well settled that where a piece of evidence was not denied, challenged, discredited or disparaged under cross-examination, the trial Court is entitled to believe and act on it. See OFORLETE V. STATE (2000) 12 NWLR (PT 681) 415 and SULEIMAN V. STATE (2015) LPELR 25726. Thus, the Respondent has proved the first ingredient of the offence of culpable homicide punishable with death.

On the second ingredient of the offence which is whether it was the act of the accused that caused the death of the deceased, the prosecution is saddled with the task of not only proving the cause of death, but that it was the accused that caused it. In OCHIBA VS. STATE (2011) LPELR 8245 AT 33 Adekeye, JSC held that:- “In every case where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established and proved beyond reasonable doubt. In the course of events, the cause of death must be proved.

Where the cause of death is ascertained, the means between the cause of death and the act or omission of the accused alleged to have caused it must be established. These are factual questions to be answered by the consideration of the evidence. In our adversatorial system of criminal justice, the prosecution must prove its case beyond reasonable doubt with vital and relevant evidence it can produce. In the process, it must also produce vital witnesses to testify for the prosecution.” See OFORLETE V. STATE (SUPRA); UDOSEN V. STATE (2007) 4 NWLR (PT 1023) 125; OCHE V.

STATE (2007) 5 NWLR (PT 1027) 214; EKPOISONG V. STATE (2009) 1 NWLR (PT. 1122) 354 and ILIYASU V. STATE (2014) 15 NWLR (PT 1430) 245. As rightly argued by the Appellant’s Counsel, the evidence against the Appellant is circumstantial as there was no eye witness(s) to the commission of the offence. There is also no confessional statement tendered at the trial. The trial Court is only left with the evidence of prosecution witnesses and a medical report in Exhibit A.

The trial Court at P. 96 of the record of appeal held thus: I have carefully considered the material and relevant evidence of the prosecution tendered through PW2, PW3 and Pw6 as well as Exhibit A (the autopsy report on the victim) and I have found that in the circumstances of the death of the victim (the accused person’s wife) such evidence have irresistibly and unequivocally pointed at the accused person to have killed his wife on 24/05/2011 at about 1:30am that was the time PW6 an immediate neighbour of the victim and her husband discovered the deceased victim injured and in a speechless state in her matrimonial home with no one inside.

Now, circumstantial evidence is evidence of surrounding circumstances which by coincidence is capable of proving a proposition with high level of certainty and the accuracy or precision of mathematics. However, for a circumstantial evidence to ground a conviction in a criminal trial, it must be strong, compelling, cogent and unequivocal. In ANYASODOR V.

STATE (2018) LPELR 43720 AT 18, Sanusi, JCA held that: “… that the nature of circumstantial evidence that a trial Court will consider and act on in order to convict an accused person must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that it was the accused under trial and no other person who was responsible in committing the offence charged.” The circumstantial evidence must lead to an irresistible conclusion that the accused and no other did the act and as such the accused should be culpable for the offence charged.

The facts must be incompatible with the innocence or non-culpability of the accused and incapable of explanation by any reasonable hypothesis other than the guilt of the accused. See NWAEZE V. STATE (1996) 2 NWLR (PT 428)1, AKINMOJU V. STATE (2000) 4 SC (PT1) 64, DURWODE V. STATE (2000) 12 SC (PT1) 1, UBANI V. STATE (2003)4 NWLR (PT 851) 22 and OLADOTUN V. STATE (2010) 15 NWLR (PT 1217) 490.

Before a conviction for culpable homicide punishable with death can be achieved on circumstantial evidence, the fact of the death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. Where circumstantial evidence points on different or many directions, a Court cannot convict an accused for the offence of murder or culpable homicide. See MAIGARI V. STATE (2010) 16 NWLR (PT 1220) 439 and OSUOHA V. STATE (2010)16 NWLR (PT 1219) 364.

For a conviction of an accused to be sustained, the circumstantial evidence relied upon by the Court to convict must have satisfied the following conditions:- (i) The evidence must irresistibly and unequivocally lead to the guilt of the accused. (ii) No other reasonable inference could be drawn from it. (iii) There must be no co-existing circumstances which could weaken the influence. All the above conditions must exist in any given case for a conviction of the accused to be sustained. See SHEHU V. STATE (2010) 8 NWLR (PT 1195) 112 and MAMMAN V. STATE (2015) LPELR 5963.

Now, the trial Court in its finding from Pp. 96 – 99 of the record of appeal seemed to have accepted the testimony of PW2, PW3, PW6 and also the contents of Exhibit A. PW6 is the Appellant’s neighbour and he stated that on 24/05/2011 at about 1:30am he heard screams coming from the Appellant’s house. He rushed to the house only to find the deceased groaning in a pool of blood. He alerted another neighbour who reported to the village head and the police were invited. The deceased was taken to the hospital. PW6 did not see anybody in the house apart from the deceased.

A manhunt was organised to look for the Appellant. Meanwhile PW2 and PW3 who were returning from Daudu Fulani settlement for a ceremony when they met the Appellant at Dantuba village. After exchanging greetings, the Appellant requested for water to drink and both PW2 and PW3 had no water to help him with. They continued their journey and were lucky to find water at kwandagora village. The accused was given water to drink. Then a vehicle went past them and turned. The Appellant according to PW3 became frightened and told them to run away before the vehicle could catch up with them.

Then when PW2 notice the Appellant’s behaviour after seeing the vehicle asked him “what have you done” and further told him that “if you are on the path of truth you should not run to any place”. Still, the Appellant took to his heels leaving behind his cutlass which was picked by PW2. The vehicle stopped and one of the passengers asked PW2 and PW3 if they had seen a young man and they replied that he ran away when he sighted their vehicle. The passengers pleaded with them to assist in apprehending the Appellant. They all apprehended the Appellant and handed him over to Police.

Meanwhile, the passengers had informed them that they were trailing the Appellant as he was suspected to have killed his wife. The trial Court found that the circumstantial evidence so far is strong and cogent against the Appellant.

The trial Court also considered the weapon found on the Appellant and compare same with the contents of Exhibit A and concluded thus: “I have found that the matchet found in possession of the accused person which was actually dispossessed from the hands by PW2 is consistent with the revelations about the type of wounds found on the deceased; victim’s neck as disclosed in Exhibit A autopsy report of the victim.” From the evidence adduced, it can be said that the Appellant fled his house after attacking the deceased, met PW2 and PW3 and requested for water to drink and as they were walking together they got to kwandagora village and found some water.

The Appellant could not even drink the water but had to be assisted by PW3 who had to push the water into his mouth. When a vehicle came past them, he became terrified and asked them to run away. They refused and he fled. He was later apprehended with the help of PW2 and PW3 and handed over to the police. Then a matchet was found by PW2 and PW3 in his possession. The medical report revealed that “fresh dead body with a deep cut on the anterior aspect of the neck. The carotid vessel, the trachea and some of the muscles of the neck were cut”.

There was evidence of excessive bleeding face severely pale. The cause of death is cardio respiratory interruption. These chain of events unbroken as they appear are enough to establish the cause of death of the deceased to be machete wounds inflected by the Appellant. Circumstantial evidence is as good and sometimes even better than evidence of witnesses. See UYO V. AG BENDEL STATE (1986) LPELR 3452 and MOHAMMED V. STATE (2018) LPELR 44704. The trial Court to my mind is right to hold that the cause of death of the deceased was the machete cut wounds inflected by the Appellants.

The respondent has proved the second ingredient of the offence of culpable homicide against the Appellant. ​ The Appellant relied on the defence of alibi. It was during his evidence in chief, he testified that he was away from his village when the deceased was killed and he told the police who failed to investigate his alibi. The Respondent on the other hand argued that mere setting up of a defence of alibi without particulars is not enough. The word “alibi” is derived from Latin and it simply means “elsewhere”.

In our criminal jurisprudence, when an accused person sets up a defence of alibi, he is in essence saying that he was elsewhere when an offence has been committed or he was not at the scene of the crime at the time of its commission. The defence is based on physical impossibility to place the accused person who was elsewhere at the scene of the crime at the time of the doing of the act constituting the crime. Once it is properly raised by the accused at the investigation stage, the police is duty bound to investigate same. See SANMI V. STATE (2019) 13 NWLR (PT 1690) 554, OPEYEMI V.

STATE (2019) 17 NWLR (PT 1702) 403, SALE V. STATE (2020) 1 NWLR (PT 1705) 205 and HARUNA V. KANO STATE (2020) LPELR 50869. The defence of alibi with its exculpating factor must be timeously raised and the accused must give a detailed explanation of his whereabouts at the relevant time. In EBRE V.

STATE (2001) 12 NWLR (PT 728) 617, Achike, JSC held that:- “We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeking that when properly established it has the far reaching finality of exculpating the accused person from complete criminal responsibility.

To take advantage of this defence, the accused person must give a particularization of his whereabouts on the crucial day of the offence which will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any transpired at the said time and place(s). Obviously, such comprehensive information furnished by the accused person must, unquestionably be capable of investigation by the police should they wish to do so. A fair minded Tribunal would have no other option than to exercise its discretion of doubt in favour of the accused person.

Furthermore, such defence must be timeously brought to the attention of the police by the accused person, preferably in his extra-judicial statement to afford the police an ample time to carry out its investigation. For the accused person to raise the defence while testifying at his trial is to deliberately deny the prosecution its right and duty to investigate the defence.

Such a ploy cannot avail the accused, conversely, where the defence of alibi consists of vague accounts which are simply placed before the Court as mere make believe of plea of that defence, and which are completely devoid of material facts working of investigation, the police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation. In such a situation, the Court would have nothing before it to consider by way of alibi.

For example where the accused person in his extra-judicial statement stated that either that he was not in town on that day or that he travelled to a neighbouring town or village and nothing more, no reasonable person would think that a serious plea of alibi has been made out. In other words, a general defence of alibi without sufficient facts to warrant an investigation is clearly porous and vague and cannot avail an accused person.” The Appellant at the defense stage testified as DW1 and in his evidence, he set up the defence of alibi and further stated that he told the Police.

At p. 47 of the record of appeal, he stated thus:- “I told the Police that I was not at home when the incident that affect my wife occurred. The Police however continue beating me.

They beat me because I denied causing injuries to my wife.” The trial Court held on the defence of alibi, thus:- “On the defence of alibi raised by the accused person, I found same not sufficiently particularized and therefore unestablished as to require the prosecution to rebut or disprove same… that a defence of alibi must provide sufficient particulars as to the whereabouts of the accused person, who the accused is together with at the time of the commission of the offence which the accuse is charged with. Such defence must not be raised at large as in the instant trial.

The accused person only said he left his wife to attend a ceremony at Danuyawo village at 4:00pm. The accused person never revealed the people he was together with while he attended the ceremony. PW2 only informed the Court the accused informed him he is going to attend a ceremony. DW2 never witness or saw the accused person attend the ceremony.”

The above finding of fact is borne out of the evidence adduced. It is to be further noted that apart from non-particularization of the sequence of events in the Appellant’s defence of alibi, the evidence of DW2 which apparently was offered to strengthen the defence of the Appellant remained unhelpful to the cause of the Appellant. The DW2 never testified that he attended the ceremony and saw the accused.

Apart from the mere assertion that the Appellant told him he was travelling for a ceremony, there was nothing to the evidence of DW2 and even that assertion cannot in my view be significant enough to strengthen the defence of alibi. Interestingly, two Police officers who were involved in the investigation of the case both at the Divisional level and at the C.I.D. officers testified as PW1 and PW7 respectively. The Appellant’s Counsel however did not deem it fit to cross-examined them on the issue of alibi.

This fact alone, suggests that the defence was never raised at the earliest possible time ie during arrest and investigation. By raising it during his defence, it seems this Court is entitle to hold that it is an afterthought. In any event, the trial Court rightly found that even if the Appellant had set up the defence at the earliest opportunity to the Police, he did not particularize his whereabout on that day to give the Police a lead to work on. Thus, the defence of alibi was not properly set up and the trial Court rightly rejected same.

Now on the third ingredient of the offence which is knowledge of the doer of the act that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause. Whether death in this circumstance was the probable or only a likely consequence of an act or of any bodily injury is a question of fact.

The law is well settled that a man intends the natural consequences of his action and where it is shown that the accused knew or had reason to know that death would be the probable and not only a likely consequence of his act or of any bodily injury which the act was intended to cause, then the accused must be held culpable. See NWOKEARU VS. THE STATE (2010) 15 NWLR (PT. 1210) 1, NJOKU VS. THE STATE (2013) 2 NWLR (PT. 1339) 548 and AHMAD VS. THE STATE (2019) LPELR 47973.

To prove this last ingredient of the offence, direct oral evidence is a near impossibility. However, the Courts are enjoined to draw inferences from the surrounding circumstances of each case and in so doing the Court will look at the following:- i. The nature of the weapon used in making the assault; ii. The weight and size of the weapon used; iii. The part of the body hit; and iv. The size of the accused and the victim of the assault. See UMARU GWADU VS. GWANDU NA (1961) ALL NLR 545, ALIYU VS. THE STATE (2015) LPELR 40382, ALI VS. THE STATE (2015 LPELR 24711, AKITSE VS.

THE STATE (2015) LPELR 24584 and ATTAH VS. THE STATE (2019) LPELR 48287. In the case at hand, the medical report, stated the nature of the wound inflicted on the deceased, the part of the body injured i.e the neck of the deceased which is very delicate part of the body, the injury itself which is a deep cut on the anterior aspect of the neck severing the carotid vessel, the trachea and some muscles of the neck resulting in excessive bleeding. The Appellant ought to know or must have reason to know that death would be the natural consequences of his action.

A fortiori, even where the intention is to cause bodily injury and death results, then the Appellant must be held responsible for the crime. See AFOSI VS. THE STATE (2013) 13 NWLR (PT. 1371) 329, GIRA VS. THE STATE (1996) 4 NWLR (PT. 443) 375 and FOLARIN VS. THE STATE (1995) 1 NWLR (PT. 371) 313. The trial Court is right in holding that the Respondent proved beyond reasonable doubt that the Appellant caused the death of the deceased with the knowledge that such act will result in the death of the deceased. I find no reason to disturb the trial Court’s finding.

In conclusion, the only issue for determination is hereby resolved against the Appellant and in favour of the Respondent. This appeal lacks merit and it is accordingly dismissed. The judgment of the trial Court in case No. JDU/002/C/2011 is hereby affirmed. The Appellant’s conviction and sentence are hereby affirmed as well.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Mu’azu Lamido, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal.

I agree with the reasoning and abide by the conclusions reached therein. This appeal arose out of a criminal trial. It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it. Where the commission of crime by a party is in issue in any proceedings, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts.

Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal. However, it must be understood that proof beyond reasonable doubt is “not proof to the hill” and is thus not synonymous with proof beyond all iota of doubt or proof of a mathematical certainty. This is due to the aphorism that absolute certainty is impossible in any human venture, inclusive of ministration of justice.

Thus, once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable – Shola Vs State (2020) 8 NWLR (Pt. 1727) 530.

In other words, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt – Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1, Ibrahim Vs Commissioner of Police (2020) 15 NWLR (Pt 1746) 122, Fekolomoh Vs State (2021) 6 NWLR (Pt 1773) 461. The Appellant was charged with culpable homicide punishable with death.

He was alleged to have, on or about the 24th of May, 2011 at Nabai, Fulani Settlement in Babura Local Government Area of Jigawa State, killed his wife, Nanazabau Musa, by cutting her on the neck and throat with a machete and as a result of which she sustained severe injuries which caused her death.

It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died, (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect.

Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Abbas Vs People of Lagos State (2019) 16 NWLR (Pt 1698) 213, Okere Vs Inspector General of Police (2021) 5 NWLR (Pt 1770) 537, Njoku Vs State (2021) 6 NWLR (Pt 1771) 157.

It is also settled law in our criminal jurisprudence that the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged.

Any one of the methods is sufficient. See Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1. It is not in contest that the person referred to in the charge against the Appellant, his wife, Nanazabau Musa, is dead. The cause of death is also disputed; it was cardio respiratory interruption brought about by excessive bleeding resulting from a deep cut on the anterior portion of the neck severing the carotid vessel, the trachea and some muscles of the neck.

This was confirmed by the medical report of cause of death, Exhibit A. It is obvious from the notes of evidence that the Respondent placed premium of circumstantial evidence in proving the guilt of the Appellant and that it was on the basis of the circumstantial evidence led that the lower Court convicted the Appellant.

It is trite law that where the prosecution relies on circumstantial evidence to prove the guilt of an accused person, the circumstances relied upon should point unequivocally, positively, unmistakably and irresistibly to the fact that the offence was committed and that the accused person committed it. The circumstantial evidence that entitles a Court to convict an accused person is one devoid of other co-existing circumstances, which create doubt in the Court’s mind, and makes the inference that the accused and no other person is the guilty party.

The evidence must allow only one and only one inference from it; that the accused person alone committed the offence. The facts upon which the prosecution relies must be incompatible with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt – Omoregie Vs State (2018) 2 NWLR (Pt 1604) 505, Anyasodor Vs State (2018) 8 NWLR (Pt 1620) 107, Nwalu Vs State (2018) 14 NWLR (Pt 1638) 158, Esseyin Vs State (2018) 14 NWLR (Pt 1640) 491, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.

The first prosecution witness, the first Investigating Police Officer, testified that upon the arrest of the Appellant, he interviewed the Appellant and recorded his statement and that the Appellant confessed to him that he killed the deceased by using a cutlass on her and that this was because the deceased was always questioning his late night movements.

The witness testified that the Appellant stated that on the particular day in question, the deceased questioned him about his late night return home and he told her that he was coming from his parent’s house but she did not believe him and the deceased told him that if he was looking for another wife, he should divorce her and to which he responded that he cannot bear seeing her married to another man and that he picked his cutlass and struck her down.

It is settled law that the evidence of an Investigating Police Officer of information and discoveries made in the course of his investigation and interrogation of the accused person and witnesses is admissible as direct evidence as the outcome of the Investigation and does not amount to hearsay evidence – Kamila Vs State (2018) LPELR-43603(SC), Offiong Vs State (2020) LPELR-49574(CA), Garba Vs State (2020) LPELR-51375(CA).

The evidence of the first prosecution witness was thus admissible evidence. The evidence was not disparaged, discredited or challenged under cross-examination and it was thus credible evidence that could be acted upon – Olude Vs State (2018) LPELR-44070(SC), Lanre Vs State (2018) LPELR-45156(SC), Daniel vs Ayala (2019) LPELR 49344(SC), Ifediora Vs Okafor (2019) LPELR-49518(SC).

Now, a read of the evidence shows that it amounted to an oral confession made by the Appellant. It is trite law that oral confession is as potent as a written confession and can ground the conviction of an accused person – Arogundade Vs State (2009) 6 NWLR (Pt 1135)165, Jua Vs State (2010) 4 NWLR (Pt 1184) 217, Matthew Vs State (2018) LPELR-43716(SC). It was the case of the Respondent that the Appellant ran away from the scene of crime with the machete used in carrying out the attack.

The second and third prosecution witnesses testified that they were on their way back from a ceremony at Daudu Fulani Settlement when they met the Appellant and who requested for water to drink and that they sourced waver for him and assisted him to drink it.

They gave evidence that they continued their journey and that upon sighting a vehicle coming their way, the Appellant asked that they should all run away but they refused to run, asking why the Appellant was running if he was on the path of truth. They testified that when the vehicle reached where they were, the passengers said they were looking for the Appellant as he had killed his wife and that they joined them in chasing and arresting the Appellant and that it was the second prosecution witness that disarmed the Appellant of the machete.

The evidence of the two witnesses were also not disparaged, discredited or challenged under cross-examination. When the oral confession made by the Appellant to the first prosecution witness is coupled with the evidence of the second and third prosecution witnesses and the contents of the medical report of cause of death, they constitute circumstantial evidence which point unequivocally, positively, unmistakably and irresistibly to the fact that the offence was committed and that the Appellant committed it.

In meeting the case of the Respondent, the Appellant raised the defence of alibi, that he was attending a ceremony at Danuyawo Village at the time of the incident.

The law is that for the defence of alibi to avail an accused person, the law requires that it is raised timeously and should stare the full particulars of the accused person’s whereabout at the material time the offence was committed and that the information describing the location must be with exact precision so as to allow the police easy investigation for purpose of confirming the claim made by the accused – Mohammed Vs State (2014) LPELR-22916(SC), Sani Vs State (2015) LPELR-24818(SC), Adebiyi Vs State (2016) LPELR-40008(SC).

Where the defence is not raised timeously by an accused person and with full particulars of his whereabout, the defence will fail – Esene Vs State (2017) LPELR-41912(SC), Ikumonihan Vs State (2018) LPELR-44362(SC). The Appellant did not raise the defence timeously and he only did so in the course of his oral evidence at trial and he did not give exact particulars of his about.

The defence of alibi was thus not available to him. ​ In the light of the above, I am unable to fault the finding of the lower Court that the Respondent made out a cogent and credible case in proving the charge against the Appellant beyond reasonable doubt. I too agree that there is no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Jigawa State delivered in Suit No. JDU/02/C/2011 by Honorable Justice M. A. Sambo on the 31st of October, 2013 together with the conviction of and the sentence passed on the Appellant.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother ABUBAKAR MU’AZU LAMIDO, JCA obliged me the draft of the leading judgment delivered by him just now. I adopt the reasoning and conclusion reached as mine and find that the appeal is unmeritorious. The appeal is equally dismissed by me. I abide by the consequential orders made therein.

Judgment

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal is consequent upon the judgment of the Court of Appeal, Abuja Judicial Division, delivered on May 19th, 2016 in appeal No. CA/A/683C/2013. By the judgment in question, the Court below dismissed the Appellant’s appeal against the judgment of the High Court of the Federal Capital Territory (FCT) Abuja delivered on March 31st, 2011 in charge No. CR/22/04.

BACKGROUND FACTS The Appellant was a police officer who rose through the ranks to attain the non-commissioned officer’s rank of a sergeant. He was attached to the Operation and Training Command, Abuja. His last duty post was ASO Savings and Loans Ltd, FCT Abuja.

Instructively, the genesis of the Appellant’s travails is traceable to September 10th, 2003. Indeed, that was the day the Appellant, while on duty, was detailed along with the cash officer and the driver of the Bank for the purpose of conveying cash and cheque to the FCDA and Zenith Bank Maitama Branch Abuja, respectively.

​After accomplishing the task, on the way back to their duty post (the ASO savings and Loans Ltd), the Appellant and co. witnessed an accident involving a motor cyclist carrying a pillion passenger and a Toyota Corolla car. Consequent upon the accident, the motor cyclist and pillion passenger fell on the ground. The driver of the Toyota car, however, drove away – a case of ‘hit and run’ accident!

The Appellant made frantic effort to prevent the errant driver escaping from the scene of the accident but to no avail. Thus, the Appellant directed the bullion van driver to activate the siren and pursue the Toyota car with a view to arresting the recalcitrant driver thereof. He also fired gun shots in the air. As the driver drove into a close, the Appellant came down from the Bullion van. In the process, the run-away Toyota driver was shot and killed as a result of a gun shot from the Appellant’s service pistol.

The Appellant reported the incident to the Armourer of the Police Command who marched him before the Deputy Commissioner of Police.

He was detained and later arraigned before the trial Court upon a two count-charge viz: CHARGE COUNT I That you Ex-Sargent Andrew Ogboka being a serving police officer and a Bank guard attached to Aso Savings and Loan Ltd., Area 8, Garki, Abuja, on or about 10th day of September, 2003 at about 11:30 hours in a close near Children Affairs Super Store, off Ademola Adetokunbo Street, Wuse II Abuja with intent to kill committed culpable homicide punishable with death by causing the death of MR ANGYATI DZARMA of No. 76 Niger Barrack, Abuja, by firing a gun shot into his head at a Close range with Police Brownie pistol No.

BDA - 380 425 -pm 5.7624 in your possession, having apprehended him for speeding off from an accident scene involving a Toyota Corolla vehicle with Registration No. AV 545 APP driven by the deceased, and a motorcyclist, (which accident was cause the motorcyclist) and thereby committed an offence punishable under Section 221 of the Penal Code Act, Cap 532, vol. XXVII, Laws of the Federation of Nigeria, 1990, as applicable in the Federal Capital Territory, Abuja, and triable by the High Court.

COUNT II That you Ex-Sargent Andrew Ogboka ‘m’ being a serving police officer and a Bank guard attached to Aso Savings and Loan Ltd., Area 8, Garki, Abuja, on or about 10th day of September, 2003 at about 11:30 hours in a close near Children Affairs Super Store, off Ademola Adetokunbo Street, Wuse Il Abuja cause the death of MR ANGYATI DZARMA of No. 76 Niger Barrack, Abuja, by firing a gun shot into his head at a close range which incident you thereafter concealed with the intent to avoid arrest and prosecution, and thereby committed an offence punishable under Section 167 of the Penal Code Act, Cap 532, vol.

XXVII, Laws of the Federation of Nigeria, 1990, as applicable in the Federal Capital Territory, Abuja, and triable by the High Court.

In the course of the trial, a total of four witnesses were called by the Respondent (prosecution), who testified PW1, PW2, PW3 and PW4, respectively. The Appellant testified in his own defence as DW1. At the close of the trial, the trial Court delivered the vexed judgment thereof, on March 31st, 2011, to the following conclusive effect: Contrary to the case for the defence, the prosecution’s case was never challenged in any way. I believe the testimonies of PW1 and 3, as credible evidence and rely upon them.

The prosecution has proved their case beyond all reasonable doubt as required by the law.

The accused is thus convicted. … However, upon a careful reading of the provision in Section 167 discovered that the facts in this case, cannot sustain the offence contemplated under Section 167 of the Penal Code Law. … In this case although there is clear evidence that an offence was committed and the accused knew about it, there is no iota of evidence before me that the accused caused the disappearance of the evidence of the commission or that he gave any false information to anybody to screen the offender. Further, the offence screened by the accused person must have been by another person.

That being the case, the prosecution has not proved the second charge and the accused is discharged and acquitted upon it.

Having convicted the Appellant upon the first count of the charge, and acquitting him on the second, the trial Court proceeded to pass sentence there upon: SENTENCE I have listened to the allocutus pleaded by Counsel to the accused and also that there is no previous record of the accused. However, the charge on which the accused was convicted does not leave the Court with any option in mitigation of his sentence. I appreciate the industry and show of knowledge of the law by respective Counsel in the handling of this case. My hands are tied in this instance. The law must take its course.

The wage of sin is death. The sentence of this Court is that the convict is sentenced to death by hanging.

The Appellant, not unnaturally, was utterly dissatisfied with the conviction and sentence passed thereupon by the trial Court. Thus, appealed to the Court below upon a total of seven grounds of the original notice of appeal.

On May 19th, 2018, the Court below delivered the vexed judgment to the conclusive effect: This Court is satisfied that the trial Court was well within its rights in refusing to convict on the lesser charge, having satisfied itself that the prosecution had proved the offense of culpable homicide punishable with death as charged; accordingly this issue too is resolved in favour of the respondent, against the appellant. Having resolved all the three issues for determination in favour of the respondent, against the appellant, the appeal fails for lack merit, and it is hereby dismissed.

Judgment of the trial Court High Court of the Federal Capital Territory, Abuja of the 31st day of March, 2011 Coram Justice Husseini Baba Yusuf is hereby affirmed.

On February 18th, when this appeal came at long last for hearing, the learned counsel were accorded the opportunity to address the Court and adopt the articulated argument contained in the respective briefs thereof. Thus, resulting in reserving the instant judgment to today.

The Appellant’s brief of argument was settled by Yunus Lambo Akanbi, Esq on 28/02/2017. It spans a total of 29 pages. At page 4, two issues have been raised: 1. WHETHER THERE WAS ANY RELIABLE EVIDENCE IN PROOF OF THE APPELLANT’S INTENTION TO KILL TO SUPPORT THE COURT OF APPEAL’S DECISION THAT THE PROSECUTION PROVED THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE – WITH DEATH AGAINST THE APPELLANT BEYOND REASONABLE DOUBT. (GROUNDS AND 10) 2.

WHETHER HAVING REGARD TO THE TOTALITY OF ADMISSIBLE EVIDENCE, THE LEARNED JUSTICES OF COURT OF APPEAL WERE RIGHT IN REJECTING THE DEFENCE OF ACCIDENT WHICH INURED THE APPELLANT A LESSER OFFENCE OF CULPABLE HOMICIDE NOT PUNISHABLE WITH DEATH THEREFORE. (GROUNDS 1, 2, 4, 6 AND 8).

The issue No. 1 is extensively raised at pages 4-18 of the Appellant’s brief. In the main, the submission on the issue is to the effect that the trial Court was right in holding that the 1st and 2nd elements of the offence of culpable homicide punishable with death has been established by the prosecution, and that the Appellant admitted same in both his statements to the police and testimony in open Court.

However, it is argued that the Court below could not have been right, that the third element of the offence has been proved beyond reasonable doubt by the prosecution against him.

Further argued, that the inference of the Appellant’s intention drawn by the two Courts below in vacuum, when there is no such confession from the Appellant, portray a misconception of law. That its crystal clear, from Exhibit 3, the PW1 evidence that the Appellant did not at any point in time form an intention to kill the deceased person. According to the learned counsel, the corked gun was never meant to kill the deceased; as such, there was never an intention to cause the death of the deceased in the circumstance. See AMAYO VS. THE STATE (2002) 5 WRN 1 @ 6-7.

​Further argued, that the Court flagrantly refused to be bound by the decisions of this Court in IROMANTU Vs THE STATE (1964), ALL WLR 311; ADELUMOLA VS. THE STATE (1988) 1 NWLR (pt. 73) 683.

The foregoing decisions are allegedly in tandem with Section 48 of the Penal Code (supra).

It is postulated that the prosecution, for reason best known thereto, failed to call Taida Dzarma, the person who was with the deceased in the car, to testify. See AHMED VS THE STATE (1999) 7 NWLR (pt. 612) 64; ASANYA VS. THE STATE (1991) 3 NWLR (pt. 180) 422, et al.

Thus conclusively, the Court is urged to hold that the affirmation by the Court below of the trial Court’s findings that the Appellant’s intention to kill the deceased proved beyond reasonable doubt by the prosecution, when such evidence was not on record, is perverse.

The issue No. 2 is extensively canvassed at pages 19 to 26. In a nutshell, it is submitted that from the evidence before the trial Court, the Appellant was a police officer on lawful duty. It was therefore lawful for him to carry a gun. By virtue of the Police Act, he has authority to arrest an offender, suspect, or person who allegedly committed an offence. Therefore, the Appellant was carrying out a lawful duty, when he pursued the deceased to arrest him for causing accident and running away from the scene of the accident.

Copiously alluding to the finding of the below at page 419 of the record, it is argued that, there was intention by the Appellant to kill the deceased but failed to consider his defence of negligence. See EJEKA VS. THE STATE (2003) 7 NWLR (pt. 819) 408; EGBIRIKA VS. THE STATE (2014) ALL FWLR (pt. 725) 237 per Kekere-Ekun, JSC @ 256 paragraphs; et al.

In the circumstance, the Court is urged to resolve the issue No. 2 in favour of the Appellant, against the Respondent, and allow the appeal.

On the whole, the Court is urged upon to allow the appeal, set aside the conviction and sentence of the Appellant, and acquit the Appellant.

Contrariwise, the Respondent’s brief, settled by Etukwu Onah Esq. On 10/06/2020, spans a total of 27 pages. At pages 6-7 of the said brief, two issues have been formulated: 1. Can the defence of accident under Section 48 of Penal Code Act avail the Appellant in the circumstances of this Appeal? (Distilled from grounds 1, 2 and 4 of the Notice of Appeal). 2.

Was the lower Court right to have affirmed the conviction and sentence of the Appellant for culpable homicide punishable with death on the grounds that the prosecution proved its case beyond reasonable doubt at the trial Court? (Distilled from grounds 3, 5, 6, 7, 8, 9 and 10)

The issue No. 1 is submitted in the main, that the trial Court disbelieved the Appellant’s evidence on ground of discrepancy between the extra-judicial statement and his sworn evidence before the Court.

Further submitted, that the Court below in agreeing with the finding of the trial Court, equally had recourse to the extra-judicial statement of the Appellant and statement on oath in question.

It is argued, that the defence of mistake under Section 48 of the Penal Code cannot avail the Appellant. The Court is thus urged upon to affirm the findings of the two Courts below, and resolve the issue No. 1 in favour of the Respondent, against the Appellant

The issue No. 2 is extensively argued at pages 15-24 of the brief. In the main, it is argued that from the evidence of the Appellant at page 29 of the record, he has admitted that, the driver died, and that his death was a result of the Appellant’s gunshot. Thereby establishing the two ingredients of the offence of culpable homicide punishable with death under Section 221 of the Penal Code (Supra).

It is further argued, that by his evidence at pages 28-29 of the record, the Appellant, a trained police officer still had his gun corked after he had arrested the deceased. And after he knew that he had shot the deceased, the Appellant did not report the incident to his companions in the bullion van or his office, the Bank where he worked, or any of the police stations that he had mistakenly killed the deceased, until he was arrested on 15/09/2009.

It is conclusively argued on issue 2, that the Court is not bound by the contention that the Appellant ought to be convicted for a lesser offence of culpable homicide not punishable with death, pursuant to Section 218 of the Criminal Procedure Code.

In the circumstances, the Court is urged to resolve the issue No. 2 in favour of the Respondent, against the Appellant, dismiss the appeal, and affirm the decisions of the two Courts below.

​I have accorded a very critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the appeal, the extensive submissions of the learned counsel contained in the respective briefs thereof vis-a-vis the record of appeal as a whole. Thus, I have deemed it expedient to adopt the two issues raised and argued in the Appellant’s brief in determination of the appeal, anon.

ISSUE NO 1 As copiously alluded to above, the first issue raises the very fundamental question of whether or not there was any reliable evidence in proof of the Appellant’s intention to kill to support the decision of the Court below that the prosecution had proved the offence of culpable homicide punishable with death beyond reasonable doubt against the Appellant. The first issue is distilled from grounds 3, 5, 7, 9 and 10 of the notice of appeal.

Instructively, the provision of Section 221 of the Penal Code (supra), the prosecution has a duty of proving beyond reasonable doubt the following ingredients: Except in the circumstances mentioned in Section 222 culpable homicide shall be punishable with death: (a) If the act by which the death is caused is done with the intention of causing death; or (b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.

Most cherishingly, the provision of Section 221 of the Penal Code (Supra) is no longer an unchartered coast. Indeed; that Section has been a subject of far-reaching judicial pronouncements by this Court in a plethora of authorities. See ILIYASU VS. THE STATE (2015) All FWLR (Pt. 793) 1917 @ 1923; USMAN VS THE STATE 1917 @ 1923. Most particularly, in the case of USMAN VS.

THE STATE (Supra), our own noble and learned brother, Peter-Odili, JSC aptly postulated: The prosecution faced with that duty of proof of the offence aforesaid, must prove all the ingredients of the offence as contained in Section 221 of the Penal Code which ingredients must coexist, non-missing. These vital components of the offence are stated here under as: 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 or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See YAKI VS THE STATE (2008) ALL FWLR (PT. 440) 618 (2008) 7 SC 128 AT 129; SHANDE VS. STATE (2004) ALL FWLR (PT 223) 1955 (2005) 1 NWLR (PT. 907) 218 @ 238.

Parties are ad idem, as aptly found by the trial Court and duly upheld by the Court below, that the first and second ingredients have been proved beyond reasonable doubt by the prosecution (Respondent).

The fact that the Appellant was responsible for firing the gunshot which resulted in the unfortunate death of the deceased person is not in doubt at all. However, the issue at stake is regarding whether or not the Appellant had the intention of killing, or causing bodily harm to the deceased person in question.

On this note, I have deemed it expedient to copiously allude to the finding of the trial Court at pages 165 (lines 23-29) and166 (lines 1-4) of the record of Appeal: There is evidence that the accused pursued the deceased through several streets in Abuja during which he admittedly fired shots into the air when he caught up with the deceased and the deceased was cut down by his bullet, he returned to the van, did not tell co-traveler, neither did he report the accident to his office and was attending to his work in the bank for days thinking he could escape the long arms of the law.

All these in my view points to the fact the accused intended the death which is the killing of the deceased…

In affirming the foregoing findings of the trial Court, the Court below at pages 424 (lines 17-19) and 427 (lines 9-13) of the record of appeal equally stated: The action or conduct of the accused almost always determine his or her intention, and in this particular case, a few of the appellant’s actions standout as lead to his intention. … It is the considered opinion of this Court that there was sufficient evidence before the trial Court to rightfully convict the accused/appellant of the offense of culpable homicide punishable with death; accordingly this issue too is resolved in favour of the respondent, against the appellant.

Undoubtedly, the actions (conducts) which have been construed by the two Courts below could be found both in the Appellant’s testimony (viva voce) in Court and the extra-judicial statement thereof (Exhibit 3) contained at pages 28 and 151 of the record of appeal.

In Exhibit 3 (pages 27-30 of the record of appeal), the Appellant narrated in great detail the circumstances surrounding the ‘hit and run’ accident; how he pursued and hot-chased the errant driver to many streets within Wuse, Maitama up to Amigo Plaza where: There was a hold-up then I fired my pistol in the air. So as to scared (sic) him but he still refused and drove away. He drove away. He drove and finally plucked in a close near children affairs at Wuse ll.

I came down from our bullion van to arrest him, in the process of dragging him to enter his car so that I can take him to the nearest police station by then my pistol was still cocked as a result when I was holding the pistol within my right hand unknowingly I trigged then the bullet hit the driver of the Toyota Corolla on his head. He fell down and I touched his body which I discovered that he was death (sic).

Again, in his viva voce under oath, he narrated the circumstance surrounding the incident leading to the unfortunate death of the deceased person. His evidence is not dissimilar from the narratives in Exhibit 3, copiously alluded hereto above. According to the Appellant: The accident was between a motor-cyclist and a driver of a Toyota Car. There were two people on the motor cycle and 2 people in the car. The driver of the vehicle negotiated and drove from the scene. This time the occupant (sic) of the motor cycle were lying down.

I tried to stop the driver he refused and continued. … in the process I was raising my pistol up and shouting that we were police. He were driving in a bullion van carrying siren. We continued in the process and he refused to stop. He did not stop. He drove to the close and I jumped down from the vehicle to arrest him. As we were dragging I did not remember that the pistol was on and all of a sudden it exploded. Before this point we have chased the vehicle of the deceased for up to an hour.

The Appellant equally testified that he did not know the cyclist involved in the accident in question. And that when – The deceased fell down and I started crying. Went back to the vehicle and directed the driver to drive to the office and report myself I felt that something must have happened to the deceased so I left him and went away to report myself. On getting to the command office, I reported to the armourer who matched me before the deputy commissioner of police. I was later detained at Wuse police Station.

On the 16/09/031 was brought out of detention and force headquarters where it was said that the Inspector General of Police had directed that I should be taken to Court

On the question of whether the Appellant had reported the incident to the Police authority, he has this to say: I mentioned in my statement to the police that I did not inform anybody after the incident because I was told by the police to say so since the was not aware of the detention, it was my second that was signing attendance register for me at the Bank. He is Sgt. Samuel. I regret the mistake I made. I was trying to save life. My dad heard of this incident and developed stroke. The gunfire is not deliberate. It was accidental. During my incarceration, I have become a born again.

Under cross-examination by the prosecution counsel, the Appellant equally had this to say: I joined the police in 1991… in the course of training, I was trained on how to handle weapons. The pistol I was holding that day has a safety position. When I was pursuing the deceased, I left the pistol in a firing position. This is because when we carry money, armed robbers used to attack us. It is not true that I was careless while pursuing the deceased.

The evidence of the eye witnesses of the incident (PW1 and PW2) is contained at pages 132-134 and 135-196 of the Record. Most particularly, the evidence in-chief of the PW1 is to the effect inter alia: PW1: My names are Sanusi Ado. I am 35 years old. I am a banker working with Aso Savings and Loans PLC attached to Wuse Market branch. On 10/9/031 was working with Aso Savings as Cash Movement Officer at Area 8 Garki branch, Abuja. On that day I was asked to move about N3,000,000.00 from Area 8 branch to FCDA Area 11 branch with some cheques to be delivered at Zenith Bank, Maitama.

I was in company of driver Moses Azi and the police man attached to cash movement.

The testimony of the PW1 is virtually in line with the evidence of the Appellant who testified as DW1. Under cross-examination, the PW1 reiterated: In my opinion the intention of the accused originally was to arrest the deceased and not to kill him… I heard the second shot but I did not see the accused shoot the driver. I can’t say what transpired between the accused and the deceased.

Before now I was arraigned with the accused before another Court along with the driver of that van in the chief magistrate Court… The accused visibly shaken when he returned to us after the encounter with the deceased. I do not know why the accused was shaking … whether there is the only security officer to direct our movement. This is on security ground because armed robbers do not know when we have cash and when we do not have.

The PW2, the second eye witness testified inter alia: PW2 … My names are Moses Azi, a driver with Aso Savings and Loans Ltd., Area 8 Garki, Abuja branch. I know the accused person. He is a police officer attached to my bank… On 10/9/03 I resumed normal work at Garki. We were given cash of N3,000,000.00 to deliver the cash to FCDA branch and the Cheque to Zenith Bank, Maitama. I was with my cash officer (PW1) and the police Sgt. The accused. After delivering the cash at FCDA we took the cheque to Zenith Bank Maitama…

The testimony of the PW2 is virtually in line with that of the PW1. On 20/02/07 the PW2 testified in chief. The case was however adjourned on record to 15/3/07 for cross-examination of the PW2. However, it’s obvious on the face of the record, that the PW2 was neither recalled nor cross-examined at any point in time the trial lasted.

Having critically, albeit dispassionately, reviewed the evidence of the prosecution, most especially that of the key witnesses, the PW1 and PW2, I am unable to uphold the findings of the Court below, to the conclusive effect that the third ingredient of the charge i.e intention to either kill or cause grievous harm the deceased person, has been proved beyond reasonable doubt against the Appellant.

As copiously alluded heretofore, the evidence of most especially the PW1 is very much supportive of the Appellant’s defence, to the effect that. “In my opinion the intention of the accused originally was to arrest the deceased and not to kill him.”

​That evidence of the PW1 clearly supports the Appellant’s defence under oath, to the effect, that his service pistol was corked not necessarily because he had premeditated intention to kill the errant hit-and-run away driver, but due to the fact that: “When we carry money, armed robbers used to attack us. It is not true that I was careless while pursuing the deceased. See page 152 (lines 11-13) of the record of appeal.

My noble Lords, I am not unmindful of the trite doctrine, that to constitute the offence of murder, the prosecution shoulders the burden squarely of proving beyond reasonable doubt that Appellant at the material time, he fired his pistol (gun) had premeditated (intended) to cause the death of the deceased or cause grievous harm thereto.

In the instant case, there is nothing in the evidence of the prosecution star witnesses – PW1 and PW2 or any witness at all, to suggest by any stretch of imagination, that the Appellant willfully aimed and fired his service pistol at the deceased, thereby resulting in the death thereof. As once aptly posited by this very apex Court: It might be that the appellant fired at random. That being so, the necessary intent to constitute the offence of murder has not been established beyond reasonable doubt.

The learned trial Judge ought to have considered the possibility that on the facts before him, a conviction for manslaughter was a verdict open for consideration. I think for this reason alone, the appeal ought to succeed. See AMAYO VS THE STATE (2002) 5 NWLR 1 Per Ogundare, JSC @ 7.

In the instant case, it is so obvious from the totality of the evidence adduced at the trial, that the Appellant was the only eye witness with the exception of the deceased driver’s companion in the Toyota Corolla car, in the person of Tarida Dzarma. Regrettably, the Respondent failed, for reasons best known to him, to call that very vital eye witness to testify in the case. If he had been called, his evidence could have immensely assisted the trial Court in arriving at a more justifiable finding and conclusion therein. See AHMED VS.

THE STATE (1999) 7 NWLR (Pt. 612) 641, ASANYA VS THE STATE (1991) 3 NWLR (Pt. 180) 422. Most particularly, in the case of AHMED VS. THE STATE (Supra), this Court squarely faced with a similar scenario as in the instant case, aptly held: The trial Court was therefore left with the testimony of the Appellant as the only eye witness of what led to the stabling (sic). He made statements to the police and has been very consistent all along. Whatever any other witness would testify to as to the stabbing is hearsay. Not circumstantial evidence.

In a situation where only the evidence of the accused person as to the actual stabbing is the only eye witness account he is either believed or there is no other evidence to believe.” Per Belgore, JSC (as the learned Lord then was) @ 674 - 675 paragraphs H-A. See alsoBUBA VS THE STATE (1994) 7 NWLR (Pt. 355) 195 @ 203. SMART VS THE STATE (2016) All FWLR (Pt. 826) 548 @ 568 Paragraphs E-F, et al.

In the circumstances, the issue No 1 ought to be, and same is hereby resolved in favour of the Appellant.

ISSUE NO 2 The second issue raises the very crucial question of whether or not having regard to the totality of admissible evidence, the Court below was right in rejecting the defence of accident which inured the Appellant a lesser offence of culpable homicide not punishable with death. The second issue is distilled from grounds 1, 2, 4, 6 and 8 of the notice of appeal.

​It has been insinuated upon by the Appellant (page 20 paragraph 7-03 Appellant’s brief), that the Appellant’s conviction under Section 221 of the Penal Code ought to have been substituted for the lesser offence of culpable homicide not punishable with death under Section 222 (7) of the Penal Code.

I have deemed it expedient, at this very point and stage, to allude to the finding of the trial Court at page 67 (lines 4- 8) of the record of appeal: Contrary to the case for the defence, the prosecution’s case was never challenged in any way. I believe the testimonies of PW1 and 3 as credible evidence and rely upon them. The prosecution has proved their case beyond reasonable doubt as required by the law. The accused is thus convicted as charged.

On the other part thereof, the Court below equally found at page 430 of the (lines 12-20) of the record of appeal: The trial Court was justified in rejecting the application to convict for a lesser offense when it is satisfied that what had been charged was proved to its satisfaction and if the prosecution was counting on the exercise of its discretion by the Court, then it has to be said; … discretion is thus not an indulgence of a judicial whim, but the exercising of judicial judgment based on facts and guided by the law or the equitable decision. Per Oputa, JSC IN UNITED BANK FOR AFRICA VS.

GMBH & CO. (1989) 3 NWLR (Pt 110) 374.

Most regrettably, the purported concurrent findings of the trial Court and the Court below are a far-cry from the evidence on record. As copiously alluded hereto above, the evidence of the foremost prosecution’s eye witness, the PW1 was to the effect that in his – “Opinion the intention of the accused originally was to arrest the deceased and not to kill him.”

What is more, the only potential eye witness who could have greatly assisted the trial Court who knows the actual truth of whether or not the Appellant intentionally aimed his pistol “point-blank”, thereby shooting and killing the deceased was never called by the prosecution for reasons best known thereto.

This lapse undoubtedly created a devastating lacuna and serious doubt in the case of the prosecution, especially in regard to the third ingredient of the charge. ​The trial Court ought to have considered the possibility that, on the facts and circumstances presented before it, a conviction for culpable homicide not punishable with death (otherwise known as manslaughter under the Criminal Code) was a verdict open for consideration. See AMAYO VS. THE STATE (supra), Per Ogundare, JSC @ 7.

In the instant case, contrary to the unjustifiable finding of the Court below copiously alluded thereto above, the trial Court has no discretion but to substitute the charge for the lesser offence of culpable homicide not punishable with death under Section 222 of the Penal Code. In my considered view, the purported exercise of discretion, copiously alluded by the Court below, could aptly be likened to what the House of Lords (now Supreme Court of the UK) characterised as the exercise of crooked cord of discretion in the notorious case of PETTITT VS.

PETTITT: To use the language of coke, this would be to substitute the uncertain and crooked cord of discretion for the golden and straight met wand of the law. See PETTITT VS PETTITT (1977) HL 777 Per Lord Hodson @ 808. Most interestingly, the foregoing rather uncomplimentary remarks of Lord Hodson in PETTITT VS.

PETTITT (Supra), was a blunt reaction to Lord Denning’s dictum so radically enunciated in the case of HINE VS HINE (1962) 1 NLR 1124 @ 1124, wherein the legendary quintessential jurist postulated in his notorious characteristics: Its discretion transcends all legal or equitable, and enables the Court to make such order as it thinks fit. This means, as I understand it, that the Court is entitled to make such order as may be fair and just in all the circumstances of the case.

However, as aptly postulated hereinabove, the House of Lords did not take kindly Lord Denning’s radically overreaching dictum, hence the remarks copiously referred to in HINE VS HINE (Supra).

In the instant case, the Court below affirmatively held at page 419 of the Record of Appeal, to the following effect: This Court finds the conclusion reached by the trial Court compelling in the circumstance, when it held… an accused as in the instant case cannot take refuge in a defence of accident for a deliberate act, even if he did not intend the eventual result ​From the following findings, the two Courts below were fully appreciative of the fact that the very fundamental third ingredient of the charge – intention – actually had not been proved beyond reasonable doubt by the prosecution.

And yet the law is well settled, beyond per adventure, that unintentional killing of a human being, which is unpremeditated but accidental, tantamounts to culpable homicide not punishable with death (otherwise called manslaughter). See EJEKA VS THE STATE (2003) 7 NWLR (Pt. 819) 408.

In the recent case of EGBIRIKA VS THE STATE (2014) All FWLR (Pt. 725) 237, this Court had the unique privilege of reiterating the trite fundamental doctrine: The position of the law is that no matter how reckless the conduct of the accused might be, so long as the killing the result from his act was not intended, the act would not fall within the provisions of Section 316 of the Criminal Code and therefore would not constitute murder.

It has been posited by the Appellant, at page 23 paragraph 7.15 of the brief thereof: 7.15 A calm and dispassionate perusal of the evidence of the Appellant in Court which the two lower Courts found as an afterthought tend to support the defence of accident, while evidence in his extra-judicial statement shows that the Appellant was negligent negatives the defence of accident and the killing of a person by negligent act constitutes manslaughter or culpable homicide not punishable with death. See OMINI VS. THE STATE (1999) 12 NWLR (PT. 630) 168 @ 182 Para A and BANDE VS.

THE STATE (1972) NSCC page 611 @ 614.

I would want to believe, with every sense of responsibility, that the foregoing submission is very much apt and quite in accord with the facts and circumstances surrounding the evidence adduced at the trial. Undoubtedly, the circumstances surrounding the evidence on record are irresistibly to the effect that the Appellant cannot, by any stretch of imagination, be deemed to have intended the killing of the deceased.

However, as aptly posited by the Appellant’s learned counsel, the totality of the evidence on record only establishes the ingredients of the offence of culpable homicide not punishable with death. Regrettably, the two Courts below were gravely in error, when they unwittingly failed to hearken to the learned counsel’s plea to convict the Appellant on the alternative offence of culpable homicide not punishable with death. See AUTA VS THE STATE (1975) NWLR 60.

​In the circumstances, the second issue equally ought to be and same is hereby resolved in favour of the Appellant.

Hence, having considerably resolved both issues in favour of the Appellant, there is no gainsaying that the appeal grossly succeeds, and it is hereby allowed by me. The judgment of the Court of Appeal, Abuja Judicial Division delivered on May 19th, 2016 in appeal No. CA/A/616C/2011, is hereby set aside. The conviction and sentence for the offence of culpable homicide punishable with death under Section 221 of the Penal Code are hereby substituted for conviction and sentence for culpable homicide not punishable with death under Section 222 (7) of the Penal Code.

The Appellant’s death sentence is accordingly substituted with a sentence of Twenty (20) years imprisonment with effect from the date of detention thereof.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: My learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JSC afforded me a preview of the judgment just delivered. I agree with the reasoning and conclusion therein.

​The law is quite well settled that while the prosecution has the burden of proving the guilt of an accused person beyond reasonable doubt, it is equally trite that any doubt must be resolved in the accused person’s favour. See: F.R.N. Vs Abubakar (2019) LPELR-46533 (SC) @ 22 C-D: Okonji vs The State (1987) LPELR-2479 (SC) @ 26 E-F.

My learned brother has ably summarized the facts that gave rise to this appeal in the lead judgment. I adopt and rely on the summary in making a few comments.

In order to prove the offence of culpable homicide punishable with death, the prosecution must prove the following facts beyond reasonable doubt: 1. That the deceased died. 2. That his death was caused by the accused. 3. The act of the accused which caused the death was intentional knowing that death or grievous bodily harm was the probable consequence of his act. See:Udo vs The State (2016) 2-3 SC (Pt. 111) 29; Igabele vs The State (2006) 6 NWLR (Pt. 975) 100; Haruna vs A.G. Federation (2012) LPELR – 7821 (SC).

​In the instant case, the first two elements were established. The third element was the bone of contention. In order to secure a conviction for culpable homicide punishable with death, the prosecution must prove the mens rea of the offence i.e that the act of the accused, which resulted in the death of the deceased, was intentional. The eye witnesses to the offence were the appellant and the passenger in the vehicle driven by the deceased. Unfortunately, the prosecution did not deem it necessary to call him to testify.

In the circumstances of this case, he was a material witness whose testimony would have been of immense assistance to the Court. The Court was left with the evidence of the appellant alone as to what transpired at the moment the deceased lost his life. It is noteworthy that the prosecution relied in part on the appellant’s extra-judicial statement, Exhibit 3, wherein he stated that while chasing the deceased with the bullion van, he fired shots into the air to scare him and to make him stop the car. He refused to stop. The chase led them into a close where he eventually stopped.

He stated that he came down from the van to effect his arrest. In the process of the struggle to arrest him and take him to the nearest police station, his pistol, which was still corked, accidentally went off and a bullet hit the deceased on his head and caused his death. ​He clearly raised the defence of accidental discharge. The statement, once admitted in evidence, forms part of the prosecution’s case. See: Ikpa Vs the State (2017) LPELR-42590 (SC): Egboghonome vs The State (1993) 7 NWLR (Pt. 306) 383. He repeated the same defence at the trial.

Interestingly, PW1, testified under cross-examination, that in his opinion, the appellant’s intention was to arrest the deceased and not to kill him. This testimony, coming from a prosecution witness, supports the defence of accident. Having regard to the scenario that unfolded, I am of the considered view that there was some doubt as to whether there was an intent to kill. The appellant testified that as a Police man on escort duty in a bullion van, the protocol was to keep his weapon cocked and ready due to the frequency of armed robbery attacks on bullion vans.

It was in that state that he chased after the deceased, shot in the air and eventually came down from the vehicle to effect the arrest, when the unfortunate incident occurred. ​In the absence of the testimony of the deceased’s passenger, who would have been able to state exactly what transpired, the appellant was entitled to the benefit of the doubt.

Indeed, the prosecution realized this when it urged the trial Court, in the course of its final address (see pages 116-117 of the record), to convict the appellant of the lesser offence of culpable homicide not punishable with death under Section 224 of the Penal Code.

I therefore agree with my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JSC, that this is a proper case in which to interfere with the concurrent findings of the two lower Courts.

I allow this appeal and set aside the appellant’s conviction and sentence to death by the trial Court, affirmed by the lower Court, under Section 221 of the Penal Code. In its stead, the appellant is hereby found guilty of culpable homicide not punishable with death under Section 222(7) of the Penal Code. He is hereby sentenced to 20 years imprisonment with effect from the date of his detention in prison custody. Appeal allowed.

JOHN INYANG OKORO, J.S.C.: My learned brother, Ibrahim Mohammed Musa Saulawa, JSC, obliged me a copy of the judgment just delivered and I totally agree with the judgment.

​My brother has painstakingly reviewed the issues in this appeal which to my mind are similar from both counsel.

I shall add only a few comments of my own in appreciation of the judgment and for purpose of emphasis.

I hold the view that what this Court is invited to consider in this appeal is not whether the deceased has died or whether his death was caused by the action of this Appellant but whether the Appellant premeditated or intended killing the deceased. The first and second ingredients of the offence of culpable homicide are not in doubt in this case. However, to complete the cycle, the third ingredient must necessarily be established. A collective proof of the three ingredients is required to sustain an action against culpable homicide. See Famakinwa v. State (2016) 11 NWLR (pt 1524) 538.

The law is trite that where a person unintentionally kills another, he would be guilty of manslaughter. That is to say that such killing is not premeditated but accidental in the sense that it was not intentional. See Ex CPL Ikechukwu Nwabueze v. The People of Lagos State (2018) 11 NWLR (pt 1630) 201 – Ejeka v. State (2003) 7 NWLR (pt 819) 408 – Akpabio v State (1994) 7 NWLR (pt 359) 635.

​In the instant case, it has been established in evidence gleanable from the printed record that Appellant in an attempt to arrest the deceased who was attempting to escape after committing a crime had his gun accidentally exploded and killed the deceased. It is unfortunate that the deceased died on the spot as the gunshot was to his head. However, that cannot automatically impute the act of premeditated killing.

I hold the view that the evidence proved in this case cannot sustain the offence of culpable homicide punishable with death under Section 221 of the Penal Code as there was no premeditated intention on the part of the Appellant to kill the deceased, rather, the offence of culpable homicide not punishable with death is sustainable. I so hold.

In the final analysis, I agree that this appeal is meritorious. It is hereby allowed in part. I abide by the order substituting the death sentence passed on the Appellant with a sentence of twenty (20) years imprisonment commencing from the date of detention. Appeal Allowed.

EJEMBI EKO, J.S.C.: The prosecution, in the charge at page 3 of the Record, had alleged that the Appellant “with intent to kill committed culpable homicide punishable with death by causing the death of Mr. ANGYATI DZARMA. The alleged intentional culpable homicide is punishable under Section 221 of the Penal Code Act of the FCT, Abuja.

The Appellant denied that he intentionally killed the deceased. In his extra-judicial statement, Exhibit P3, which the prosecution, and unfortunately the two Courts below, thought was an unequivocal and positive admission that he intentionally killed the deceased as alleged; the Appellant pleaded inter alia that – As we (himself and the deceased) were dragging I did not remember that the pistol was on and all of a sudden it exploded.

​He testified in that refrain in his defence. He was neither contradicted nor discredited on this plea. He however admitted that he “did not remember his pistol was on”. He has thereby pleaded accident (in some sort of carelessness) in the course of his doing a lawful duty. That is, trying to arrest a “hit and run” driver who after hitting another road user, had fled from the scene and was escaping from the long arms of the law. The Appellant was a police officer at the material time escorting a bullion van.

The plea of accident would ordinarily have availed him under Section 48 of the Penal Code providing- 48. Nothing is an offence which is by accident or misfortune and without any criminal intention or knowledge in the course of doing a lawful act in a lawful manner by lawful means and with proper care and caution. Criminal intent, or intention, to cause the death of the deceased is the centre piece, or the kernel, of the charge defended by the Appellant. The Respondent was obligated to prove that fact of criminal intent beyond reasonable doubt. They did not seem to.

Rather, as conceded by the prosecutor, in his final address at pages 117-118 of the Record; they were only able to prove the lesser offence punishable under Section 224 of the Penal Code. He had listed 3 particulars that are consistent with an offence under Section 222(7) of the said Penal Code, punishable under Section 224 of the same Penal Code. Section 222(7) provides – 222-(7) Culpable homicide is not punishable with death when a person causes the death of another by doing any rash or negligent act.

Prosecution counsel, in urging the trial Court to consider offence punishable under Section 224 of the Penal Code, submitted that 1. Accused person did not explain the circumstances warranting the “explosion” of the gun that killed the deceased. 2. This is because the accused person failed to observe the high standard of law (sic: care) imposed on persons making use of guns as envisaged in STATE v. BELLO (1975) NNLR 38 (sic: (1976) NNLR 38). 3. Accused person’s degree of negligence is high and he cannot excuse his criminality. STATE v.

BELLO, cited by the prosecutor, is almost on all fours as it also involved negligent or careless handling of firearm at dusk during hunting.

Improper handling of a firearm without proper care and caution negates criminal intention to kill a human being. ​I agree; because firearms are very dangerous in their nature, whoever handles a fire arm is expected to exercise a very high degree of “proper care and caution” to ensure that it does not injure or harm any other person I find from his Exhibit P3 and the defence testimony, no evidence that the Appellant, armed with a loaded police Brownie Pistol, exercised this high degree of duty of care.

This case, in my firm view, falls within Section 222 (7) of the Penal Code and the offence is punishable under Section 224 of the same Penal Code.

The trial Court, at page 160 of the Record, dismissed the prosecutor’s insistence and prayer that the Appellant be convicted for the lesser offence as he (the prosecutor) had admittedly failed to prove the alleged intentional culpable homicide. The learned trial Judge thus had erred in stepping into the arena and usurping the prosecutor’s undoubted function. Every counsel, in the course of performing his professional duties, has enormous powers, including the powers to compromise and concede on facts: OKESUJI v. LAWAL (1991) NWLR (pt. 170) 661; OKONKWO v. KPAJIE (1992) NWLR (pt. 226) 633.

A counsel, at all times, is in full control of the case. He conducts his case in a manner proper to him. The Court’s neutrality or impartiality in the case, under Section 36 (1) of the Constitution guaranteeing fair hearing to the parties before it, is summarised by the phrase – nemo judex in causa sua (a Judge should not be a judge in own cause).

​No evidence proved that the Appellant acted intentionally. The eye witnesses, including Taimada Dzarma, who should have been called to disprove or debunk the Appellant’s plea of accidental discharge were not called. Their evidence was material. That evidence could have been produced. It was not produced. It does, therefore, raise a presumption that the evidence was withheld because its production would be unfavourable to the prosecutor’s case – Section 167(d) (formerly 149(d) of the Evidence Act).

The lower Court was ominously silent on this issue whether the evidence of the eye witnesses, Taimada Dzarma and Emmanuel Okpechi, were relevant and material to debunk the defence of accidental discharge. The failure is fatal as the following cases demonstrate: THE STATE v. AZEEZ (2008) 4 SC 188; OMOGODO v. THE STATE (1981) 5 SC; ONAH v. THE STATE (1985) 3 NWLR (pt. 12) 236.

The unnecessarily exuberant evidence of the PW3, a pathologist disingenuously venturing and muttering the expert opinion of a ballistician, does not fill the fatal lacuna. That bit of PW3’s evidence was as well unreliable.

​I am, in the circumstance, in total agreement with my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JSC, in the opinion just delivered, that this appeal be, and is hereby allowed as it relates to the conviction and sentence of the Appellant for culpable homicide punishable under Section 221 of the Penal Code. I also agree that the conviction and sentence for the lesser offence of culpable homicide by doing a rash or negligent act contrary to Section 222 (7) of the Penal Code and punishable under Section 224 of the same Code be entered, and are hereby entered against the Appellant.

All the consequential orders made in the said judgment are hereby adopted by me.

ADAMU JAURO, J.S.C.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC. I am in agreement with the reasoning and the conclusion contained therein.

The Appellant both in his extra-judicial statement and his evidence under oath at trial narrated how he caused the death of the deceased in the course of trying to arrest him. The Appellant stated in his extrajudicial statement that: “As we were dragging I did not remember that the pistol was on and all of a sudden it exploded.”

​He testified before the trial Court thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“… I was holding the pistol with the right hand unknowingly I triggered then the bullet hit the driver of the Toyota Corolla on his head”.

Both statements, are to the effect that the killing of the deceased was as a result of the negligent act of the Appellant. There is no scintilla of evidence that the Appellant formed the intention to kill the deceased as erroneously held by the two Courts below. The intention to cause the death of another, which is a key ingredient of the offence of culpable homicide punishable with death for which the Appellant was convicted by the trial Court and affirmed by the Court below, was therefore absent.

It is trite that where a person is charged with an offence, but the evidence led is only sufficient to ground conviction for a lesser offence, the trial Court can convict for the lesser offence, even though the accused person was not charged with the lesser offence. See Section 236 of the Administration of Criminal justice Act, 2015 as well as SEGUN v. STATE (2018) LPELR-44693 (SC).

​The act of the Appellant falls within the offence of culpable homicide not punishable with death provided for under Section 222 (7) of the Penal Code and the trial Court ought to have convicted him for that lesser offence.

​For the above and the fuller reasons contained in the lead judgment, I join my learned brother in allowing the appeal. I abide by the conviction and sentence now imposed on the Appellant in the lead judgment. Appeal allowed.

Judgment

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kogi State in case No. AHC/1C/2019 delivered by A. N. Awulu, J. on 29th April, 2020.

The Appellant was charged and convicted on 2 counts charge for the offence of Criminal Conspiracy contrary to Section 97(1) of the Penal Code Law and offence of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code Law.

The Appellant, dissatisfied with the judgment of the trial Court, approached this Court by a Notice of appeal filed on 20th May, 2020. Counsel on both sides filed relevant processes as required by the rules of the Court and the Appeal was heard on 4th March, 2021.

​A. O IGEH appearing with A. A AKOR for the Appellant adopted and relied on the Appellant’s Brief of Argument filed on 4th August, 2020. He urged the Court to allow the appeal. IBRAHIM SANI MUHAMMED, SAN appearing with HABIB ABDULLAHI; MARYANN OTARU; OJOMA ETUBI; NTIMA BABIU for the Respondent adopted and relied on the Respondent’s brief of argument filed on 17th September, 2020. In the Appellant’s brief of argument settled by A. O. IGEH, ESQ., 2 issues were formulated for determination as follows: 1.

Whether having regard to the evidence on record and the standard of proof, the lower Court rightly convicted the Appellant on the 2 counts of charges. 2. Whether the lower Court properly evaluated the evidence on record and whether its decision is not unreasonable, unwarranted and liable to be set aside.

​In the Respondent’s brief of argument prepared by A. W. ZAKARI, ESQ a sole issue was raised for determination thus: Whether or not the trial Court was not right when it held that the prosecution proved beyond reasonable doubt the offences of criminal conspiracy and culpable homicide punishable with death under Sections 97 (c) and 221 (a) of the Penal Code against the Appellant.

The two issues distilled by the Appellant tantamount to the sole issue raised by the Respondent. I shall therefore resolve the sole issue formulated by the Respondent in the determination of the appeal to avoid repetitions.

SUBMISSIONS ON SOLE ISSUE The learned counsel for the Appellant submitted that on the offence of culpable homicide punishable by death, the prosecution did not discharge the burden of proof, having failed to prove the essential ingredients of the offence of culpable homicide and consequently, the Appellant is entitled to an order of discharge and acquittal. He cited the case of KOLADE V. STATE (2017) 8 NWLR (PT. 1566) 60 at 144-115

The learned counsel conceded to the fact that Ibrahim Yakubu referred to in the charge is dead but submitted that the prosecution did not link the cause of the death of the deceased to the Appellant. He relied on: OCHE V. STATE (2007) 5 NWLR (PT. 1021) 2014; ILIYASU V. STATE (2014) 15 NWLR (PT. 1430) 245 and EKPOISONG V. STATE (2009) 1 NWLR (PT. 1122) 354.

The learned counsel analyzed the testimonies of the witnesses and submitted that the prosecution was unable to prove that no person other than the Appellant committed the offence having regard to the evidence on record.

On the offence of criminal conspiracy, the learned counsel submitted that the prosecution did not prove the essential element of criminal conspiracy against the Appellant.

​On the evaluation of evidence by the trial Court, the learned counsel contended that the trial Court failed to properly evaluate the evidence before it. It was further submitted that the trial Court failed to resolve the doubts raised on the prosecution’s evidence in favour of the Appellant.

It is the contention of the Appellant that prosecution did not cross-examine the DW1 and is deemed to have admitted the evidence of DW1. The learned counsel reproduced some part of the judgment of the trial Court; demonstrated and analyzed the evidence of the witnesses in submitting that the trial Court believed the prosecution’s evidence without evaluating the evidence. He urged the Court to allow the appeal.

Mr. Abdullahi for the Respondent reproduced the ingredient of the offence of culpable homicide; he demonstrated with the evidence of prosecution’s witnesses and the Exhibit tendered at the trial Court in submitting that the Appellant committed the offence charged and that the trial Court properly found the Appellant guilty and convicted him accordingly.

On the contention of the Appellant that the Respondent did not cross-examine DW1, the learned counsel submitted the prosecution is not duty bound to cross-examine all the defence witnesses so long as the ingredient of the offence charged have been successfully proved. The learned counsel urged the Court to dismiss the appeal.

RESOLUTION OF ISSUE Culpable homicide is defined in Section 220 of the Penal Code. It reads: “220. Whoever causes death: (a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or (b) by doing an act with the knowledge that he is likely by such act to cause death; or (c) by doing such a rash or negligent act, commits the offence of culpable homicide. Generally, homicide means the killing of one person by another. In other words, it is the act of purposely, knowingly, recklessly, or negligently causing the death of another human being.

While culpable homicide means a wrongful act that results in a person’s death, it does not amount to murder. See: UMARU ADAMU VS THE STATE (2014) 10 NWLR (PT. 1415) 441; (2014) 8 SCM 1; (2014) 4 & 5 SC 1; (2014) ALL FWLR (PT. 733) 1938.

​To succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt: (a) That the person the accused person is charged of killing actually died; (b) That the deceased died as a result of the act of the accused person; (c) That the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence. See: STATE V. JOHN (2013) 1 NWLR (PT. 1368) P. 337; TUNDE ADAVA & ANOR VS. THE STATE (2006) 9 NWLR (PT. 984) 152; (2006) 3 SCM 1, (2006) 2 SC (PT. 11) 136; MAIKUDI ALIYU VS.

THE STATE (2013) 12 SCM (PT. 2) 195; BELLO V STATE (2007) 10 NWLR (PT. 1043) 564; OLADELE V NIGERIA ARMY (2004) 6 NWLR (PT. 868) 166, AKPA V THE STATE (2007) 18 NWLR (PT. 1019) 50; UBANI V THE STATE (2003) 18 NWLR (PT. 851) 24, BAKARE V THE STATE (1987) 1 NWLR (PT. 52) 579. It must however be noted that all the above three ingredients of the offence must necessarily co-exist and none must be lacking. Where one is missing or not established, it means that the prosecution has simply failed to discharge the burden of proof that the law places on her in order to succeed with the charge.

See: GALADIMA V. STATE (2017) LPELR-43469(SC); DANBABA V. STATE (2018) LPELR-43841 (SC).

​In the instant suit which gave rise to this appeal; on the proof of the offence of culpable homicide under Section 221 of the Penal Code as reproduced above. It is not in dispute that Ibrahim Yakubu died on 16th November, 2017. On the proof of other ingredients of the offence of culpable homicide, the duty of the prosecution in any criminal matter is to prove the charges against an accused person beyond reasonable doubt. See: AKIBU V. STATE (2019) LPELR-47630 (SC).

The onus of proving the guilt of any person accused of the commission of a crime lies on the prosecution and that burden never shifts but must be discharged by credible evidence to ensure that all necessary and vital ingredients of the charge or charges are satisfactorily proved. See: STATE V. JAMES GWANGWAN (2015) 13 NWLR (PT.1477) 600, AT 621, PARAS B-E PER OKORO SC. See also YONGO V. COMMISSIONER OF POLICE (1992) LPELR-3528 (SC); (1992) SCNJ 113; (1992) 8 NWLR (PT.257) 36; OGUNDIYAN V. THE STATE (1991) LPELR-2333 (SC); (1991) 3 NWLR (PT.181) 519, ALONGE V.

IGP (1959) 4 FSC 203; IBRAHIM V, THE STATE (2015) 11 NWLR (PT. 1469) 164 AT 192, PARAS A-B.

By the record before me, PW1 in his examination in chief as contained at pages 18 and 19 of the record of appeal, said that Ibrahim (the deceased) told him that his brother Shekuru called him to meet him at Otondo and under cross-examination said that the scene of crime was along the road at Otondo, he further said that he was not present at the scene when the crime was committed.

The PW2 in his evidence said that between 7.00 pm and 8.00pm he had a dispute with his wife and reported to his father-in-law who failed to caution his daughter. He said that he called his elder brother Ibrahim Yakubu (deceased) and informed him of the dispute with his wife, while waiting for his arrival his neighbour one Alhaji Ibrahim Adejor helped to resolve the dispute.

According to PW2 upon the arrival of his brother, Alhaji Ibrahim Adejor informed him that he had resolved the issue and while seeing his brother off Idris Tijani; Suleiman Tijani; Nasiru Tijani, Mohammed Tijani Angulu suddenly appeared armed with sticks and began to hit his brother with sticks. Upon cross-examination PW2 said that the scene of crime was on the road separating their compound. His testimony is contained at pages 20 and 21 of the record of appeal.

​PW4 in his testimony stated as follows: “I have been an investigator for eight years; I visited the scene of crime. The scene of crime was Okenyi Uboji in Ankpa. The police was led to the scene of crime by the complainant. The scene of crime was not on the major road but in a dwelling place with many access routes”.

The DW2 on his own testified as follows: “My name is Tenimu Tijani. I live at Uboji, I am a farmer. I know Yakubu Momoh. I know Ibrahim Yakubu, the deceased. I know the defendant. The defendant is my son. My daughter was married to Shekuru. At about 7.30pm, the said Shekuru began to beat my daughter married to him. I heard her screams and wailings but I did not enter their compound. Soon after, Shekuru came to my house. Immediately he came, he asked me to come and take away my daughter from his house. Initially, I began to laugh, He repeated his request.

I told him I was going to do no such thing. We began to exchange words and insults. After a while, people intervened and each person went his way. Thereafter, he made a phone call intimating his people that his in-laws were beating him and that they should come to his rescue. Soon after, some persons came on three motorcycles in attempt to hit my children, the people struck the deceased with a stick. Shekuru wanted to escape but I insisted he took away the deceased. I followed them to the hospital. The deceased died after three days on hospital admission.

The defendant was present at home when Shekuru was making trouble and inviting people to come to his rescue. The defendant went to Isiaka Jibrin in his room to ask for torchlight so as to identify the victim lying on the ground following the crisis. When he flashed the torchlight he saw and said it was Ibrahim the deceased.”

DW2 was not cross-examined. The Appellant testified as follows: “My name is Idris Tijani. Before my detention I was living at Okenyi, Uboji. I am a farmer and a commercial motorcyclist. I did not kill Ibrahim Yakubu. On the fateful day, we were gathered in our compound. My sister came crying and told my father that her husband assaulted her. My father sent for her husband. Her husband Shekuru came and my father asked him why he beat up his wife. Her husband Shekuru (i.e. pw2) began to insult my father.

My younger siblings asked him why he was misbehaving to our father after assaulting our sister. Shekuru said we were planning to jointly attack him and began to make phone calls to some persons. After a while some persons came ridding three motorcycles, it was already getting dark around 8pm to 9pm. On arrival, they began to rain insults. Those who came include Shekuru, Yunusa and Ibrahim. The other five persons, I did not see their faces. I went to my brother Isiaka Jibrin to collect a torchlight since it was dark. On my way back, I saw Ibrahim lying on the ground.

I was not there when they fought and I do not know why he was lying on the ground. It was Shekuru that took Ibrahim Yakubu to the hospital. On sighting the police in our compound after the incident, I had to run away to avoid indiscriminate arrest. Cxxn: I did not run away because I killed Ibrahim Yakubu but I did so to prevent indiscriminate arrest as police usually do. It was when I sighted the police that I ran away. I was arrested eight months after the death of lbrahim Yakubu. I was arrested at Okura in Dekina Local Government Area.

On failure to cross-examine a witness on a material point, the Supreme Court in OLA V. STATE (2018) LPELR-44983 (SC) held that: “Where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence.” The Supreme Court also, in YUSUF & ANOR V. STATE (2019) LPELR-46945 (SC) held thus: “The evidence of a witness which is not challenged or shaken by cross-examination, which evidence is not inadmissible by law, must be accepted as correct, I completely agree” See also, the cases of: DAHIRU V.

STATE (2018) LPELR- 44497 (SC); SIMON V. STATE (2017) LPELR-41988 (SC); PATRICK V. STATE (2018) LPELR-43862 (SC); IFEDAYO V. STATE (2018) LPELR-44374 (SC); OLA V. STATE (2018) LPELR-44983 (SC); LANRE V. STATE (2018) LPELR-45156 (SC).

From the records, the Respondent did not cross-examine DW2. Consequently, from the above decisions of the Supreme Court, I hold that the Respondent accepts the truth of the matter as led in evidence by the DW2. The DW2’s evidence having been accepted as the truth of the matter by the Respondent, I shall base my resolution of this sole issue on his evidence.

DW2 testified that at about 7.30 pm, the PW2 began to beat his daughter married to him and after sometime PW2 came to ask him to come and carry his daughter and they began to exchange words and insults, after which the PW2 made a phone call intimating his people that his in-laws were beating him and that they should come to his rescue. Let me pause here and revisit the testimony of the PW1 who said that Ibrahim (the deceased) told him that his brother Shekuru was calling him to meet him at Otondo. This piece of evidence supports the evidence and testimony of DW2.

DW2 further testified that soon after, some persons came on three motorcycles and started a fight but in an attempt to hit his children, they struck the deceased with a stick. The PW2 wanted to escape but he (DW2) insisted he took away the deceased. The fact that the Respondent chose not to challenge the testimony of the DW2 who is an eyewitness is of great significant.

​I have carefully considered the evidence of both the Appellant and the Respondent with their witnesses at the trial Court; it is not in controversy that PW2 had misunderstanding with his wife who happened to be the Appellant’s sister. There was a resulting fight between PW2, the deceased and some others on their side; and the Appellant with some other members of his family. The fight involved the use of sticks as weapons, which incident occurred around 7.00pm to 8.00pm. The deceased died as a result of the fight as he was hit with stick.

The dispute is as to who hit the deceased with stick that led to his death. The question that ensues is whether the prosecution proved beyond reasonable doubt that it was the Appellant who hit the deceased with a stick which caused his death?

From the evidence of the Respondent before me, the Respondent failed to establish how he identified the Appellant as the person who struck the deceased with a stick. The evidence on record is that it was dark and the incidence was in a dwelling place. There is no evidence on record as to whether the fight took place inside an enclosure or outside but in the DW1’s compound.

Furthermore, the unchallenged evidence on record that the Appellant went into his brother’s room to collect torchlight from him to be able to identify who was lying down on the floor is conclusive of the lighting situation at the scene of crime at the time of the crime. This piece of evidence which was not controverted, in my view, establishes the light situation of the scene of crime at the time of the crime; which is to say it was dark that no one could identify the other without the aid of light.

This was a dangerous scenerio as one could mistakenly hit a member of his team fighter in an attempt to hit an opponent. This impresses on the mind, the uncontroverted evidence of the DW2 that it was the people who Shekuru the deceased’s brother invited for the fight that hit the deceased in an attempt to hit his children and also that Shekuru (PW2) wanted to leave his deceased brother where he fell to escape but for his intervention.

Having in mind that this piece of evidence was not challenged by cross-examination and for the analysis I have made, I hold that if the trial Court had well evaluated the accepted evidence of the DW2, the same would have created serious doubt in its mind as to who struck the deceased with stick that led to his death.

Curious again is, why the Appellant and his siblings would allegedly attack the deceased instead of PW2 who had just beaten up their sister and insulted their father (DW2). If the evidence of the PW2 which was discredited by the evidence of the Investigating Police Officer as to the scene of crime is anything to be considered, then the prosecution failed to fill the gap as to why the appellant and his siblings who allegedly suddenly appeared armed with sticks began to hit the deceased with sticks leaving Shekuru (PW2) who apparently had issues with them untouched.

This again ought to have created doubt in  the mind of the trial Court as to who hit the deceased and which doubt ought to have been resolved in favour of the Appellant.

I accordingly hold that the trial Court failed to properly evaluate the evidence before it and particularly the defence of the Appellant. Also, the Respondent failed to prove all the ingredients of the offence of culpable homicide having failed to establish beyond reasonable doubt that the Appellant caused the death of the deceased.

On the offence of criminal conspiracy. Section 96(1) of the Penal Code defines criminal conspiracy. It reads: “96(1) when two or more persons agree to do or cause to be done- (a) an illegal act; or (b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.” See OGU v. COP (2017) LPELR-43832 (SC). The Supreme Court in defining conspiracy held in AWOSIKA v.

STATE (2018) LPELR-44351(SC) as follows: “It is pertinent to say that the word “conspiracy” has been described in Mulcahy vs R (1968) 3 HC at 377 when Willes J of House of Lords stated thus:- A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So being as a design rest in intention only it is not indictable.

When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties, promise against promise, actus centra acins, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. (emphasis supplied by me). See also. cases of Patrick Njovens & Ors vs The State (1973) 5 SC 17; Dabo & Ors vs The State (1994) 5 NWLR (Pt. 346) 535.

It is now settled law, that the offence of conspiracy can most of the time, only be established through inferences of common design or agreement by two or more persons to do or not to do a criminal act. The offence of conspiracy is seldom capable of being proved through direct evidence, but is largely established through inferences from the act or action of the parties thereto, which said act was focused towards realization or achieving a common or natural criminal purpose.

See, ODUNEYE V THE STATE (2001) 1 SC (PT. 1) 1 AT 617, GODWIN (ISIENEI) CHIANUGO V STATE (2001) FWLR (PT. 74) 242 AT 251; KENNETH CLARK & ANOR VS THE STATE (1986) 4 NWLR (PT. 35) 381; MUSA V THE STATE (2005) FWLR (PT. 262) 343 AT 353/354″.

The offence of conspiracy is complete once a concluded agreement exists. The parties must agree that a course of conduct shall be pursued which will definitely amount to or result in the commission of an offence by one or more of the parties to the agreement. There must be a criminal purpose that the parties share as their common purpose. See: NDOZIE v. STATE (2016) LPELR-26067 (SC); ADEJOBI & ANOR V. STATE (2011) 6-7 SC (PT. 11) P. 65, (2011) 12 NWLR (PT. 1261) 347; STATE V. SALAWU (2001) 12 SC (PT. IV) P. 191, (2011) 18 NWLR (PT. 1279) 580.

​To secure a conviction in a charge for criminal conspiracy the Supreme Court in OGU V. COP (2017) LPELR-43832 (SC) held thus: “The prosecution must prove: (a) an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means; (b) where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement; and (c) that each of the accused persons individually participated in the conspiracy. See: YAKUBU V.

THE STATE (2014) 8 NWLR (PT. 1408) 111 @ 123 F H; TANKO V. THE STATE (2009) 16 NWLR (PT. 1114) 597.”

Therefore, in a charge for conspiracy the agreement constitutes the offence and it is not necessary to prove that the act has actually been committed. It is also trite that having regard to the nature of conspiracy, it is seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. The evidence relied upon must, however, be of such quality that it irresistibly compels the Court to make an inference as to the guilt of the accused. See: YAKUBU V. THE STATE (SUPRA); OBIAKOR V, THE STATE (2002) 10 NWLR (PT. 776) 612; ODUNEYE V.

THE STATE (2001) 2 NWLR (PT. 697) 311; NJOVENS V. THE STATE (1973) 5 SC 17; DABOH V. THE STATE (1977) 5 SC 197.

The Appellant in his defence testified thus: ‘I went to my brother Isiaka Jibrin to collect torchlight since it was dark.’

DW1 also testified in favour of the Appellant thus: ‘Thereafter, I went to Isiaka Jibrim to intimate him of what was happening outside. There, I met the defendant asking for torchlight from Isiaka Jibrin’.

DW2 also testified in favour of the Appellant thus: ‘the defendant went to Ishiaka Jibrin in his room to ask for a torch so as to identify the victim lying on the ground following the crisis’

The only testimony of PW2 in proving criminal conspiracy is that: “While seeing him off, Idris Tijani, Suleiman Tijani, Nasiru Tijani, Mohammed Tijani Angulu suddenly appeared armed with sticks and began to hit my brother with sticks. I began to scream and some people rushed to the scene”.

​This piece of evidence was debunked by the prosecution herself when the Investigating Police Officer said the crime did not take place on the road but in a dwelling place. This means the appellant and his siblings could not have suddenly appeared from nowhere with sticks to attack the deceased leaving out the PW2 who beat up their sister and insulted their father.

The evidence of the PW2 who was the only eyewitness having been discredited by the prosecution; cannot be believed to the extent that the appellant and his siblings emerged with the common agreement to fight or kill someone who from the totality of the evidence before the Court had no dispute with them. The Respondent did not create via her evidence, the circumstance on which the Court could draw inference.

Rather, from the unchallenged evidence of DW2 which the law mandates the Court to accept, it was the PW2 and the people he invited through phone call to aid him in a fight that had a common intention to fight the DW1 and his family in DW1’s premises. I do not therefore agree with the learned trial Judge that the Respondent proved the offence of criminal conspiracy against the Appellant beyond reasonable doubt. I resolve the issue in favour of the Respondent.

​Consequently, I hold that the appeal is meritorious and the same is consequently allowed.

I quash the conviction and sentence of the Appellant by the trial Court entered on 29th April, 2020 by A. N Awulu, J. in Case No: AHC/1C/2019.

I discharge and acquit the Appellant on the offence of culpable homicide and criminal conspiracy.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now, the judgment just delivered by my learned brother, Uchechukwu Onyemenam, JCA. I agree with the decision of my learned brother.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of a preview of the judgment just delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I am in agreement with the reasoning and conclusion contained therein that the appeal is meritorious.

​In consequence, I also allow the appeal and abide by the orders made therein.

Judgment

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment) : This is an appeal against the decision of the Court of appeal (lower Court) sitting in the Kaduna Division of the Court of appeal (Coram: Isaiah O. Akeju, H.A.O. Abiru and O. A. Adefope-Okojie, JJCA.,) delivered on the 4th December, 2015 affirming the conviction and sentence of the Respondent passed by the High Court of Justice, Katsina State presided over by Hon. Justice Sanusi Tukur delivered on the 30th May, 2014 in suit No. KTH/8C/2012.

The facts that led to this appeal are as follows: The Appellant was charged vide an amended CHARGE NO: KTH/8C/2012 dated 9th April, 2014. The Appellant was accused of causing the death of his wife Rukayya Zaharaddeen by hitting her on the chest with an axe with the knowledge that death would be the probable consequences of his act. He was charged with committing the offence under Section 221 of the Penal Code Law, Cap. 96, Laws of Katsina State, 1991.

The trial commenced before Hon. Justice Sanusi Tukur. The plea of the Appellant was taken and the Appellant pleaded Not Guilty to the Charge.

​In the course of the trial, the

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Prosecution called four (4) witnesses and tendered three (3) Exhibits which were all admitted in evidence. The Exhibits were Exhs. 1(An Axe), 2A and 2B- Appellant’s Hausa Statement and its English translated version recorded by PW 4 at Katsina State CID).

The Appellant on the other hand, testified for himself and did not call any other witness. No Exhibit was tendered by the Appellant in the course of the trial. At the end of the trial, the trial Court found the Respondent guilty, convicted him as charged and sentenced him to death accordingly on the 30th of May, 2014.

Dissatisfied with the judgment of the trial Court, the Appellant had appealed to the lower Court which affirmed the decision of trial Court. The Appellant being dissatisfied with the decision of the lower Court has now appealed to this Court. In the Appellant’s brief filed on 30/8/2016 settled by Esene Emmanuel Esq., the Appellant identified two issues for determination as follows: 1. Whether from the facts and circumstances of this case, the prosecution has proved its case beyond reasonable doubt against the Appellant. (distilled from grounds 1, 3 and 4). 2. Whether

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the respondent’s failure to present P.W.4 for cross-examination did not amount to lack of fair hearing and thereby nullifying the conviction (distilled from ground 2).

The Respondent’s counsel, Mr. Abu Umar, Esq., adopted the issues settled for determination by the Appellant which I will also consider in the determination of this appeal.

ISSUE ONE The standard of proof required of the prosecution in criminal cases is a heavy one as the State must adduce proof beyond reasonable doubt.

In a charge of culpable homicide punishable with death, under Section 221 of the Penal Code Law of Katsina State, the essential ingredients which the prosecution must prove to secure a conviction are as follows: (a) That the deceased died (b) That the death of the deceased person resulted from the acts of the Defendant. (c) That the Defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was the probable consequence of his action.

The prosecution must prove that the death of the deceased person resulted from the act of the Defendant by direct eye witness account, circumstantial

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evidence from which the guilt of the Defendant can be inferred or by free and voluntary confessional statement of guilt which is direct and positive. See Iliyasu v. State (2014) 15 NWLR (Part 1430) 245.

In this case, there was no eye witness who saw the Appellant kill the deceased. The only evidence relied upon by both lower Courts is the confessional statement of the Appellant and circumstantial evidence from which both Courts arrived at the conclusion that the Appellant killed his wife. When the prosecution sought to tender the confessional statement, the Defendant opposed the voluntariness of the statement on the one hand that he did not make the statement at all and on the other hand that he was forced to make a statement.

Nevertheless, a trial within trial was conducted at the end of which the Court admitted the statement of the Appellant as Exhibit 2A, the Hausa version taken in the language of the Appellant and the English translation, as Exhibit 2B. In effect, the confessional statement of the Appellant was retracted and he needs some other evidence for it to be solely used to convict the Appellant.

​It is trite that the mere retraction

4

of a confessional statement by the Defendant will not render it inadmissible. It will only affect the weight to be attached to it where the Defendant denies making it at the earliest opportunity. Counsel cited Abdullahi vs. The State (2013) 11 NWLR Pt. 1366 Pg.435, Itule vs. Queen (1961) 2SCNLR 183, Nwachukwu vs. The State (2007)17 NWLR (Pt. 1062) 31.

The argument of the learned Appellant’s counsel is that apart from the confessional statement, there is no other evidence linking the Appellant to the offence. Counsel insists that the evidence of PW1 and PW2 did not link the Appellant to the offence as charged. The evidence of PW1 is to the effect that he was alone when the Appellant came to inform him that a door had fallen on his wife. He swore that he went to the house and did not see the fallen door. He also stated that he did not see the Appellant kill the deceased person.

PW2’s evidence was that the deceased was his daughter and that on the 4th day of September, 2011, he was informed that his daughter was dead. He said he saw the deceased with blood all over her body prepared for burial. He stated that he did not witness the crime. PW3 gave

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evidence as the Exhibit keeper and tendered an axe which had been admitted through the IPO as exhibit 1. PW4 gave evidence as the Investigating Police Officer and the Appellant’s Confessional statement was admitted as Exhibits 2A and 2B through him. The PW4 was not cross-examined because the prosecution closed it case after stating that the IPO had gone on assignment to another State.

The argument of the Appellant is that PW1, PW2 and PW3 did not witness the incident and their evidence did not corroborate the Appellants confessional statement in any way and manner, thus, the confessional statement cannot be the basis of his conviction.

The case of the Appellant, my Lords, is that Exh. 2A and 2B the confessional statement was not corroborated and cannot be a basis for his conviction as it is not consistent with other facts established during the trial. Counsel also argued that it is only a post mortem examination that could determine the cause of death and without it, the cause of death had not been established by the prosecution.

​I entirely agree with the contention of the Respondent’s counsel that the nature of the corroborative evidence

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required does not need to be direct evidence linking the Defendant to the commission of the offence. Circumstantial evidence is sufficient, particularly where it leads to no other conclusion than the guilt of the Defendant.

I agree with the Respondent’s counsel that a confessional statement is the best evidence in Nigerian criminal jurisprudence as it is direct evidence by the perpetrator giving the reasons for and how the offence was committed. So long as it is voluntary and it is a direct and positive admission of guilt, it can be used to convict even where it has been retracted. See Okanlawon vs. The State (2015) 17 NWLR (Pt. 1489) 445 at P. 478 paras. A-E.; Kareem vs. F.R.N (NO. 2) (2002) 8 NWLR (Pt.770) 664 at P.683 Paras. B -D

I however cannot subscribe to the learned Respondent counsel’s argument that once a confessional statement is admitted, the prosecution need not prove the case against the Defendant beyond reasonable doubt as the confessional statement ends the need to prove the guilt of the accused. That is definitely not the law and not the ratio inSolola vs. State (2005) 2 NWLR Pt.937 Pg.460 cited by the learned Respondent’s

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counsel.

My Lords, the confessional statement of the Appellant was retracted by him in the course of the trial and the position of the law as reiterated by this Court in several cases is that the statement must meet the probability test set out in R. v.

Sykes (1913) 18 CR All Pg. 233: a) Whether there is anything outside it to show the statement is true, b) Whether it is corroborated, c) Whether the statement made in it of fact so far as they can be tested are true, d) Whether the accused had the opportunity of committing the offence, e) Whether it is consistent with other facts which have been ascertained and have been proved See…

In this case, there is no doubt that the deceased died of wounds to her upper body. The evidence of the Appellant’s neighbor P.W.1 and the deceased father P.W.2 who saw the body is unequivocal and not in doubt on this point. There was no need for a post mortem examination in the circumstances of this case. The deceased died on the spot with obvious grievous wounds on her body. The issue at stake is who caused the injuries and the circumstances under which they were caused.

​My

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Lords, the evidence here is very clear. The Appellant rushed to his neighbor P.W.1 to report that a door fell on his wife and she was wounded and he needed assistance to take her to the hospital. P.W.1 on oath stated that when he got to the scene, the deceased was near death with a big gash on her chest. He also noted that there was no fallen door on her body or anywhere in the house to which her wound could be attributed. P.W.2, the father of the deceased stated on oath that the Appellant was in the habit of beating the deceased.

That he had even beat her with a cable when she was pregnant and the matter was reported to the Sharia Court. He swore that he saw the dead body of his daughter in a pool of her own blood and later buried her. This evidence was not seriously controverted under cross-examination by the Appellant during the trial. The IPO, P.W.4 tendered an axe which was found in the house. The Appellant initially denied ownership of the axe but later admitted that he owned an axe but the axe was not in the house on that day.

In his evidence on oath, the Appellant denied killing his wife and insisted that his wife had a leg injury prior to the

9

incident and that she fell and wounded herself. In Exh 2A and 2B the Appellant had stated as follows: “…I could remember on Sunday 04-9-2011 at about 11.00hrs-12.00hrs I came back from work – PHCN – at Katsina. I met my wife saying that I should give her transport money to enable her go to her home town – Bafarawa. And I told her that I have no money, let her exercise patience, she just said must give her the money even by force. By that time, I was holding an axe in my hand.

And when I turned to come out of the room, she came to grip me, I raised the axe and hit her with it on her chest, the other point end. And she fall on the ground and hold the place while crying. And I saw blood rushing at the point. Then I carried her shirt with milk color and blocked the point, carried wrapper which belongs to her and tied it round her chest may be the bleeding may stop. From there I went to her mother, Agu, and told her what happened. She said nothing concern her with me.

And I came back home and met she had died… I know that my wife died as a result of the injury inflicted on her by an axe at her chest…”

​Exh 2B, the interpreted

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version of the Appellant’s brief indicated the defence of provocation. The trial Court did not consider the defence of provocation alluded to in the confessional statement, neither did the Court below. However, it is settled that in order to invoke the plea embedded in Section 221(1) of the Penal Code, the accused must lead evidence to establish the following elements of facts: 1. The act of provocation must be grave and sudden 2. The accused must have been deprived of the power of self-control actual & reasonable 3.

The mode of resentment degree or extent of the relationship must bear a reasonable relationship or be proportionate to the provocation offered.

In this case the, defence was never actually given in evidence in chief to warrant a consideration and determination of it as a defence for the Appellant. The Appellant depended on the incredulous explanation that a door fell on his wife.

​There is no doubt that she suffered injury to her body before she died, there is no contention about that. The issue in contention would be whether the injury was caused by the Appellant in circumstances that would make it murder for

11

him to have caused the injury where the injury is apparently not self-inflicted. The wound on the body, the blood on the body, and the death of the deceased attest to the fact that she died of her wounds. However, the circumstantial evidence which corroborates foul play is the fact that the Appellant lied that a door fell on her. The confessional statement Exh 2 & 2A is corroborated by the state of her body and the existence of the axe Exh 1 in the house when police searched the place.

I am persuaded that the Appellant murdered his wife intentionally and was rightly found guilty by the two lower Courts.

ISSUE TWO My Lords, the right of a Defendant to cross-examine a prosecution witness is a constitutional one hinged on fair hearing. It is a matter of duty and obligation for the prosecution to present its witness for cross-examination having concluded examination in chief. Any other course of action would be unconstitutional and a violation of the rights to fair hearing of the Defendant. See Oforlete v. State (2000) LPELR-2270 (SC), Tyonex Nig. Ltd & Anor v. Pfizer Ltd (2019) LPELR 49520(SC).

From the records, particularly at page

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67, the prosecution informed the trial Court that PW4 was not in Court for cross-examination as he was away in Sokoto State on official assignment and applied to close its case. My Lords, there is no doubt that the failure of the prosecution to present its witness before the trial Court to give the Appellant the opportunity of cross-examine the witness is ostensibly violation of the right to fair hearing of the Appellant as contained in Section 36(1) of the Constitution.

I have to agree with the learned Appellant’s counsel that if the Appellant “could not complete the cross-examination” due to no fault of his, could he be said to have had “the ample opportunity of being heard”. There is no doubt that the well-settled position is that in order to be fair, “hearing” or “opportunity to be heard” must, inter alia, encompass a party’s right to cross-examine or otherwise confront or contradict all the witnesses who testified against him.

The Appellant’s counsel submitted that the confessional statement of the Appellant tendered by P.W.4 who was not cross-examined should be expunged from the record. He cited Ola v. State (2018) LPELR-44983 (SC),

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Patrick Oforlete v. The State supra. My Lords, the prosecution dispensed with further appearance for cross-examination of the witness who was the IPO who tendered Exh. 2A and 2B with the acquiescence of the Judge and the Appellant’s counsel. It is important to note that the Appellant’s counsel did not object to the wrong procedure while it was being proposed by the prosecution.

Be that as it may, the effect of the failure of the prosecution to present their witness for cross-examination is that the evidence of the witness must be expunged even where there is no clear evidence that the lapse had caused any gross miscarriage of justice. Generally, the effect of the corporate failure of all actors to ensure the cross-examination of P.W.4 is that all the evidence led in chief must be jettisoned. See Ali v State (2015) LPELR-24711.

I cannot agree with the view of the learned Respondent’s counsel that the Appellant’s counsel compromised the right of the Appellant and thus the Appellant cannot complain. The right to fair hearing cannot be waived or compromised as it is not donated but inherent for the person involved. See Arije v Arije & Ors (2018) LPELR-44193 (SC).

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My Lords, I am of the view that in the peculiar circumstances of this case, while the axe recovered by the witness may be disregarded, the confessional statement may not be disregarded. There was a trial within trial to test the admissibility of the statement and there was a ruling admitting the statement. It would have been a different matter if there was no separate trial in which that aspect of the evidence of the witness was diligently looked into by the Court and all parties given an opportunity to be heard.

I would expunge that part of the evidence not tested under cross-examination but leave the portion of the evidence already well tested in evidence. The learned Justices of the Court of Appeal held as follows at Pg. 151 of the record. “The admission of the confessional statements of the Appellant, Exhibit 2A and 2B, was not based on the evidence of the fourth prosecution witness in course of his testimony in the main trial. They were admitted after a trial within trial and in the course of which witnesses were called by both sides and they were cross-examined.

A trial within trial is described as a process that a trial Court

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undertakes when an accused in a criminal trial protests the admission of a confessional statement allegedly made by him to the police on the ground that the said statement was not and could not have been voluntarily made by him and that the statement was obtained under duress or some threat of whatever nature or actual physical torture to his person.

The main trial in the Court is abated and the accused person is made to face a mini trial, within the context of the main trial, to determine the veracity of the account of the accused person on whether his statement to the police was voluntary or not, the procedure at the mini trial is similar to that of the main trial as witnesses are called to give evidence on both sides and they are subjected to cross-examination by the other side.

The trial Court writes a ruling at the conclusion of the mini trial either admitting the statement of the accused person or rejecting same and after which the main trial will resume – see the unreported decision of this Court in Appeal No CA/K/30/C/14 – Maidawa vs. The State delivered on the 7th of May, 2014. The failure of the fourth prosecution witness to return to Court to

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continue his evidence in the main trial did not affect the confessional statements admitted in the trial within trial. The lower Court in its ruling on the trial within trial made specific findings on the evidence led by the parties on the voluntariness of the confessional statement and it was on the basis of the findings that it held that the statement was made voluntarily.

The Appellant did not appeal against any of the findings of fact made by the lower Court in the ruling, even in his final notice of appeal, and no issue was formulated or argument put forward by the Counsel to the Appellant in this appeal to challenge those findings.”

I agree with the Court of appeal’s ratio on this point and could not have put the matter better myself. Even though the confessional statement has been made an issue in this Court, its admissibility has been tested and determined by the trial Court. That aspect of the trial and the admissibility of the statement would not be affected by the IPO’s absence to answer questions on some other areas of his investigation.

In this appeal, the failure to cross-examine the IPO cannot lead to an acquittal of the

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Appellant. There is sufficient circumstantial evidence even without the confessional statement of the Appellant to prove the offence of culpable homicide beyond reasonable doubt. The half-hearted defence of provocation put up by the Appellant in his extra-judicial statement was not well articulated enough to be taken seriously. Neither was there any effort to press that defence during the trial. The story that a door fell on the deceased and caused her death was debunked by P.W.1 and P.W.2 whose evidence was not seriously controverted during the trial.

There is no doubt that in the circumstances of this case, the Appellant caused the death of the deceased intentionally by hitting her on her chest with an axe with knowledge that death or grievous bodily harm was the probable consequence of that action in view of the laid down criteria to determine knowledge of probable consequence including the lethal nature of the weapon used, the part of the body brutalized by the lethal weapon, and the proximity of the victim with the lethal weapon used by the Defendant. See Iden v. The State (1994) 8 NWLR Pt. 365 Pg. 719, Nwokearu v.

State 15 NWLR (Pt. 1215) 1,

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Njoku v. State (2013) 2 NWLR (Pt 1339) 548, Afosi v. State (2013) 13 NWLR (Pt.1371) 329.

My Lords, I find no merit in this appeal and it is hereby dismissed. The judgment of the Court of appeal delivered on 17th September, 2015 in Appeal CA/K/513/C/2014 is hereby affirmed. Appeal dismissed.

OLABODE RHODES-VIVOUR, J.S.C.: I had the advantage of reading a draft copy of the leading judgment delivered by my learned brother, OGUNWUMIJU, JSC. For the reasons given l, too find no merit in the appeal.

The Appellant struck his wife on her chest with an axe. She died from the injuries she received. In R v M. Nungu (1953) 14 WACA p. 379, the Appellant struck his brother with an axe. In striking him, he turned away the cutting edge. It was argued that he could have had no intention to kill.

Verity CJ, delivering judgment of the Court, conceded this point but continued, “but we do not think it would be reasonable to conclude therefrom that the Appellant did not believe that to strike the deceased on the head with the shaft of the axe heavily weighted as it was with an iron head and with such force as to inflict the wound described would not cause

19

grievous harm. He must in our view have intended the natural and probable consequences of his act.” He was found guilty of murder. Any person who unlawfully kills another is guilty of murder or manslaughter depending on the circumstances of the case. If the accused person intends to do to the person killed (in this case his wife) some grievous harm and death results, he would be guilty of murder.

The act of the Appellant clearly shows that he intended to cause grievous harm, which was the natural and probable consequence of striking his wife on her chest with an axe, with such force as to inflict the wound described in evidence. To my mind, this is a clear case of murder. Appeal dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft, the lead judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JSC, just delivered. Being in complete agreement with the reasoning and conclusion therein expressed, I adopt same as mine in dismissing the unmeritorious appeal. I abide by the consequential orders reflected in the lead judgment.

ABDU ABOKI, J.S.C.: I have had a preview of the lead judgment of my learned brother, HELEN

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MORONKEJI OGUNWUMIJU, JSC, just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed.

This appeal is from concurring findings of fact of the two Courts below, with the Court below; affirming the conviction and sentence of the Appellant by the trial Court for the offence of culpable homicide punishable with death, under Section 221 of the Penal Code Law, Cap. 96, Laws of Katsina State, 1991. The Appellant was accused of causing the death of his wife, Rukayya Zaharaddeen by hitting her on the chest with an axe, with the knowledge that death would be the probable consequences of his act.

The attitude of this Court to concurrent findings of fact, is that it would not usually interfere with such findings unless they are shown to be perverse, not based on the evidence before the Court or where there has been an error of law or error in procedure which has occasioned a miscarriage of justice. See: Danjuma v. State (2019) LPELR 47037 (SC); Abdulmumini v. FRN (2017) LPELR 43725 (SC) ​The rationale for this position was eloquently stated by His Lordship, Belgore, JSC (as he then was) in

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Bamgboye v. Olarewaju (1991) LPELR 745 SC as follows: “Once a Court of trial has made a finding of fact, it is no more within the competence of the appellate Court to interfere with those findings except in certain circumstances. The real reason behind this attitude of appellate Courts is that the Court hearing the appeal is at a disadvantage as to the demeanour of witnesses in the lower Court as they were not seen and heard by the appellate Court.

It is not right for the appellate Court to substitute its own eyes and ears for those of the trial Court which physically saw the witnesses and heard them and thus able to form an opinion as to what weight he place on their evidence…” See also: Ikpa v. The State (2017) LPELR 42590 SC.

​In a charge of culpable homicide punishable with death, the onus is on the prosecution to prove, either through eye witness evidence; or circumstantial evidence; or by the confessional statement of the accused, the following beyond reasonable doubt: a. That the deceased died; b. That the death of the deceased resulted from the act of the accused; and c. That the act of the accused was

22

intentional with knowledge that death or grievous bodily harm was its possible consequence. See: Jimoh v. The State (2014) LPELR – 22464(SC); Sunday Udor v. The State (2014) LPELR-23064 (SC).

In the appeal under consideration, it is not in dispute that the deceased died. It is also not in dispute that whoever hit the deceased on her chest with an axe, did so with the knowledge that death or grievous bodily harm was the probably consequence. The issue in contention is whether it was the Appellant who inflicted the injury on the deceased.

The facts of the case clearly shows that the evidence relied upon by the trial Court and the Court below, was the confessional statement of the Appellant, as well as circumstantial evidence, from which both Courts arrived at the conclusion that the Appellant caused the death of the deceased.

Learned counsel for the Appellant has challenged in particular, the evidence of PW1 and PW2, insisting that they did not link the Appellant to the crime. PW1, testified to the effect that he was alone when the Appellant came to inform him that a door had fallen on his wife. He (the PW1) swore that he

23

did not see the fallen door, when he went to the Appellant’s house. He stated that he did not see the Appellant kill the deceased. PW2 testified that the deceased was his daughter and that on the 4th day of September, 2011, he was informed that his daughter was dead. He said that he saw the deceased with blood all over her body before she was prepared for burial. He stated that he did not witness the crime.

It is contended for the Appellant that the trial Court wrongly relied on Exhibits 2A & 2B (the Hausa and English versions of the Appellant’s confessional statement), which were admitted in evidence, after a trial within trial.

In opposition, learned counsel for the Respondent has argued that the evidence of PW1 and PW2 was compelling as to the identification of the Appellant as the person who hit the deceased with an axe, on her chest, leading to her death and the trial Court rightly relied on the confessional statement of the Appellant.

In Exhibits 2A & 2B, the Appellant stated inter alia: “…I could remember on Sunday 04-09-2011, at about 11.00hrs – 12.00hrs, I came back from work – PHCN – at Katsina. I met my

24

wife saying that I should give her transport money to enable her go to her home town – Bafarawa. And I told her that I have no money, let her exercise patience. She just said I must give her the money even by force. By that time, I was holding an axe in my hand. And when I turned to come out of the room, she came to grip me. I raised the axe and hit her on her chest, the other point end. And she fell on the ground and hold the place while crying. And I saw blood rushing at the point.

Then I carried her shirt with milk colour and blocked the point, carried wrapper which belongs to her and tied it round her chest, maybe, the bleeding may stop. From there, I went to her mother, Agu and told her what happened. She said nothing concern her with me. And I came back home and met she had died… l know my wife died as a result of the injury inflicted on her by an axe at her chest…”

​It is apparent, as has been said earlier, that there was no eye witness account. The confessional statement of the Appellant, was corroborated by circumstantial evidence. Also, the fact that the axe, Exhibit 1 was found in the Appellant’s house, when the men of the Police Force

25

searched the Appellant’s house, did not help the Appellant’s case.

It is settled law that to sustain a conviction by circumstantial evidence, the circumstances relied upon by the Prosecution must be direct and must lead unequivocally and indisputably to the guilt of the Appellant. For circumstantial evidence to be sufficient to support a conviction in criminal trial, especially culpable homicide, punishable with death, it must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the accused, and no other person, committed the crime. See:Adegbite v. The State (2017) LPELR 42585 (SC)

It must also be borne in mind that where the evidence before the Court depends mainly on the credibility of the witnesses, no Court is in as good a position as the trial Court, which had the opportunity of seeing and hearing the witnesses testify and/or observing their demeanour in the witness box, to determine the credibility of those witnesses. See: Onuoha v. The State (1989) NWLR (PT.101) 23; Busari v. The State (2015) LPELR 24279 (SC). ​The settled position of the law is that where a trial

26

Court evaluates the evidence and makes a proper appraisal thereof, it is not the business of an appellate Court to substitute its views for the views of the trial Court, which had the opportunity of watching the demeanour of the witnesses who testified before and is entitled to believe or disbelieve such witness. See:Onwugbufor vs Okoye (1996) 1 NWLR (Pt.424) 252.

After a careful and comprehensive evaluation of the evidence led on both sides, the trial Court found the evidence of the Prosecution witnesses to be credible and found the evidence of the defence unreliable. The Court below affirmed this finding.

The findings of the Court below, in my considered view, are in full accord with the evidence before the trial Court. The Appellant has failed to convince me of any special circumstance to warrant the interference of this Court with the concurrent findings of the two Courts below.

For these and the more exhaustive reasons advanced in the lead judgment, I find no merit in this appeal. It is hereby dismissed. The judgment of the Court below is affirmed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my

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learned brother, Lord Justice Helen Moronkeji Ogunwumiju, JSC. I completely agree with the reasoning, conclusions, decisions and orders therein.

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Judgment

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Federal Niger State, Kontagora, Division, Coram: A. Abdullahi Mika’ilu J, in Charge No. NSHC/KG/5C/2016: The State V. Muhammadu Lawal delivered on 23/11/2018, in which the Appellant was convicted of culpable homicide punishable with death contrary to Section 221 of the Penal Code and sentenced to death. On 15/6/2020, the Appellant obtained the leave of this Court to file the Notice of Appeal which Notice of Appeal was filed on 8/6/200 on three grounds of appeal.

See pages 92 – 97 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 10/7/2020. Subsequently, an Amended Notice of Appeal on four grounds was filed 5/2/2021 with the leave of this Court but was deemed as properly filed on 19/1/2021. The parties filed and exchange their briefs, which were duly adopted as their arguments at the hearing of this appeal on 26/9/2022. The Appellant was represented by B. O. Akinseye – George Esq., appearing with J. R. Olusola Esq. The Respondent was represented by M. S. Abdulaziz Esq.

Principal State Counsel, Ministry of Justice, Minna, Niger State. BRIEF STATEMENT OF FACTS The Appellant, as Accused person was charged before the lower Court with the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code Law, Cap 124 Laws of Niger State, in that he was alleged to have caused the death of one Ibrahim Zaki by hitting him with a cutlass on the head.

The case of the Respondent as the Prosecution was that the Appellant was alleged to have killed one Ibrahim Zaki on the 18th of March, 2015 and was consequently arrested, charged and arraigned before the High Court of Kontagora Division Niger State for the offence of Culpable Homicide punishable with death contrary to Section 221 of the Penal Code CAP 94 Laws of Niger State, 1989 (as revised). The Appellant pleaded not guilty to the charge and the prosecution opened its case and called four witnesses to wit, Sgt.

TANKARI SHAYAU (PW1, his evidence is on pages 22 – 25 of the Record of Proceedings), DIJE IBRAHIM (PW2, her evidence on pages 37 – 39 of the Record of Proceedings), MAUDE IBRAHIM (PW3 his evidence on pages 40-41 of the Record of Proceedings) and Inspr. ADAMU SAIDU (PW4, his evidence is on pages 41-43 of the Record of Proceedings) and also tendered the confessional statement of the accused, same was admitted and marked as Exhibit “A” (Pages 6 and 7 of the Record of Proceedings) and thereafter called three other witnesses and closed its case.

The Appellant (as Accused) opened his defense and testified along with other witnesses as witnesses for the defense and closed his defense. Upon the close of the case of all the parties, the parties filed their respective Final Written Addresses in the matter. Upon the adoption of the Final Written Addresses of the parties, the trial Court delivered its judgment convicting the Appellant for the offence of Culpable Homicide punishable with death as charged and sentenced the Appellant to death by hanging.

Piqued by the decision of the trial Court, the Appellant filed this appeal against his conviction. ​ On his part, the case of the Appellant was that there was an altercation between the appellant’s sisters and the deceased’s son, one Maude Ibrahim, who testified as PW3, due to the fact that the deceased was alleged to be the mastermind behind the death of their father, one Haruna Muhammadu. However, during the altercation, PW3 attacked the Appellant’s sisters, by slapping the DW2 and hitting the DW3 on the head with a stick and she fell with the baby on her back.

It was later reported that the baby died as a result of the impact of the fall. The Appellant arrived home just at the heat of the altercation and witnessed the incidence between his sisters and the PW3 and suddenly the deceased emerged from his house, armed with a cutlass and struck the Appellant with it on the neck, and on the spur of the moment, due to the pain, the Appellant retaliated and hit the deceased, who fell down and died. ​ At the trial, the Appellant pleaded not guilty and the matter proceeded to trial.

At the hearing, the Respondent called four witnesses and tendered three Exhibits in evidence. In his defence, the Appellant testified on his own behalf and called two other witnesses. At the close of the trial, both parties waived their right to file any final written addresses, and the lower Court proceeded to deliver its judgment on 23/11/2018, in which it convicted and sentenced the Appellant to death, hence the appeal. See pages 71 – 91 and 92 – 97 of the Record of Appeal. ISSUES FOR DETERMINATION The Appellant formulated two issues for determination, namely: 1.

Whether having regard to the evidence on record, the lower Court was right in holding that there is credible evidence sufficient to convict the Appellant? (Distilled from Grounds 1, 2 and 3) 2. Whether from the nature of evidence, the lower Court was right to have convicted the Appellant of the offence of culpable homicide punishable with death without first considering and making pronouncement on his defence of self – defence that is made out from the evidence on record? (Distilled from Ground 4) The Respondent formulated two issues for determination, namely: 1.

Whether the evidence of the Prosecution witnesses is hearsay evidence and whether the lower Court was right in relying on their evidence to convict the Appellant? 2. Whether the lower Court was right when it convicted the Appellant on his retracted confessional statement? 3. Whether based on the totality of evidence adduced the Respondent proved its case beyond reasonable doubt to warrant the conviction of the Appellant by the lower Court? 4. Whether the defence of self – defence raised by the Appellant would avail him?

My Lords, looking at the issues as distilled in the briefs of the parties and considering the facts as revealed in the evidence led vis a vis the offence with which the Appellant was charged by the Respondent, I am of the view that the proper issues for determination are the two issues as distilled in the Appellant’s brief, a consideration of which would involve a consideration of the four issues as distilled in the Respondent’s brief. However, I shall consider the two issues together and resolve them in one fell swoop.

ISSUES ONE AND TWO (TAKEN TOGETHER) Whether having regard to the evidence on record, the lower Court was right in holding that there is credible evidence sufficient to convict the Appellant and whether from the nature of evidence, the lower Court was right to have convicted the Appellant of the offence of culpable homicide punishable with death without first considering and making pronouncement on his defence of self – defence that is made out from the evidence on record?

APPELLANT’S COUNSEL SUBMISSIONS On issue one, learned counsel for the Appellant had submitted inter alia that the Respondent has the burden of proving the elements of the offence of culpable homicide beyond reasonable doubt and contended that upon thorough review and proper evaluation of the entirety of the Respondent’s evidence led before the lower Court, most of which were hearsay evidence, it was clear that the Respondent failed to prove the guilt of the Appellant beyond reasonable doubt as required by law in that the evidence of PW1, PW2, PW3, PW4 and Exhibits A, B, for which the photographer was not called, and C tendered by the Respondent are not legal and credible evidence which the lower Court could rely on to validly convict the Appellant since the death of the deceased was not proved as required by law and urged the Court to hold that in law the mere fact that these evidence of evidence were not objected to at the trial for failure to meet the requirements of the law does not absolve these pieces of evidence of their obvious legal defects and to expunged and discountenanced the same, the lower Court having failed to do and to allow the appeal, set aside the perverse judgment of the lower Court and discharge and acquit the Appellant.

Counsel referred to Section 83 (1), 84, 85 and 135(1) of the Evidence Act 2011, and relied on Ononuju V. The State (2015) All FWLR (Pt. 810) 1198 AAT p. 1223, Kolade V. State (2017) All FWLR (Pt. 889) 437 AT p. 460, Keystone Bank Ltd V. Shemomal (Nig.) Ltd (2016) All FWLR (Pt. 828) 957 AT p. 991, Joshua V. State (2009) ALL FWLR (Pt. 475) 1626 AT p. 1658, Akinbami V. State (2017) All FWLR (Pt. 897) 2018 AT pp. 2033 – 2034, Obot V. The State (2019) LPELR – 48172 (CA) AT pp. 14-16, Moses Etisi V. State (2018) All FWLR (Pt. 920) 33 AT pp. 66 – 67, Eyo Asuquo Effiong V.

The State (2018) All FWLR (Pt. 944) 710 AT p. 731, Lateef V. FRN (2010) All FWLR (Pt. 539) 1171, Lambert V. Nigerian Navy (2006) 7NWLR (Pt. 980) 514, Olaoye V. Makanjuola (2018) All FWLR (Pt. 945) 866 AT p. 903, Ifaramoye V. State (2017) All FWLR (Pt. 917) 1551 AT p. 1604, Bisichi Tin Co. Ltd V. Commissioner of Police (1963) NNLR 71, Smart V. State (2016) All FWLR (Pt. 826) 548 AT p. 554, Dajo V. State (2018) All FWLR (Pt. 970) 1014 AT pp. 1035 – 1036, Ogboma Young V. Chevron Nigeria Limited (2014) All FWLR (Pt. 747) 620 AT p. 639, Dickson V. Sylva (2017) 8 NWLR (Pt. 1567) 167 AT p. 200.

It was also submitted that the evidence led by the Respondent through PW1, PW2, PW3 and PW4 were not only inconsistent and contradictory but also exposed the grave doubts in the allegation that the Appellant caused the death of the deceased and contended that in the entire facts and circumstances as revealed in the evidence in the printed record the conviction and sentence of the Appellant on the basis of an extra – judicial statement that was not corroborated by credible and independent evidence cannot stand in that in law though a trial Court can convict an Accused person on the strength of his confessional statement alone, yet the veracity of the said confessional statement must be tested with other facts legally admitted in evidence and urged the Court to hold that in the absence of any such independent credible evidence, the lower Court was wrong to have convicted the Appellant on his retracted extra – judicial statement alone and to allow the appeal, set aside the perverse judgment of the lower Court and discharge and acquit the Appellant.

Counsel relied on Egwuche V. State (2018) LPELR – 43975(CA), Nwoye V. State (2018) LPELR – 46067 (CA), Princewill V. The State (1994) LPELR – 2926 (SC), Emmanuel Ugboji V. The State (2018) All FWLR (Pt. 926) 68 AT p. 104, Jimoh V. State (2014) All FWLR (Pt. 733)1855, Dogo V. State (2013) All FWLR (Pt. 686) 524, Obosi V. State (1985) NMLR 119, Onuoha V. State (1987) 1 All NLR 150, Emmanuel V. The State (2017) LPELR – 43550 (CA), Osuagwu V. State (2009) 1 NWLR (Pt. 1123) 523, Omopupa V. The State (2007) LPELR – 8571 (CA), Ndidi V. The State (2007) All FWLR (Pt. 381) AT pp. 1650 – 1651, Essien V.

State (2018) All FWLR (Pt. 939) 1993 AT p. 2004, Natsaha V. State (2017) 18 NWLR (Pt. 1596) 38 AT pp. 64 – 65.

On issue two, learned counsel for the Appellant had submitted inter alia that the lower Court erred in law in failing to consider and reach a decision on the Appellant’s defence of self – defence and contended that in law if the lower Court had considered the evidence showing glaringly the self-defence of the Appellant leading to the alleged offence laid against the Appellant, it would not have arrived at the perverse finding of guilt against the Appellant and would have rather as required of it by law discharged and acquitted the Appellant and urged the Court to hold that the failure of the lower Court to consider the defence of self – defence put up by the Appellant his resultant conviction and sentence for culpable homicide punishable with death was perverse and occasioned substantial miscarriage of justice and to allow the appeal, set aside the said judgment and discharge and acquit the Appellant.

Counsel referred to Sections 59, 60 and 221 of the Penal Code Cap. 89, Laws of Northern Nigeria, 1963 as applicable in Niger State, and relied on Alfa v. State (2016) LPELR – 40552(CA), Namsoh V. State (1993) 5 NWLR (Pt. 292) 129 AT p. 143, Aliyu V. State (2013) LPELR – 20748 (SC), Maeze V. State (2004) All FWLR (Pt. 202) 1920, Ukpe V. The State (2002) FWLR (Pt. 103) 416, Kwaele V. State (2003) FWLR (Pt. 159) 304, Laoye V. The State (1985) 2 NWLR (Pt.10) 8, Odu V. State (2001) 10 NWLR (Pt. 722) 668, Mallelan V. State (2017) LPELR – 43034 (CA).

RESPONDENT’S COUNSEL SUBMISSIONS On his issue one, learned counsel for the Respondent had submitted inter the lower Court right when it convicted the Appellant based on the credible evidence of Respondent’s witnesses and contended in law eye witness evidence is not sine quo non for conviction of an Accused person since the Respondent had open to it any one of the following ways, direct eye – witness account, confession and circumstantial evidence to prove the guilt of an Accused person and urged the Court to hold that the evidence of PW1, the IPO, being the product of his investigation as well as the evidence of PW2 were not a hearsay evidence and coupled with the direct and positive confession of the Appellant to the commission of the Crime, which was admitted in evidence as Exhibit A without any objection and notwithstanding his denial of same later in his evidence which was of no legal consequences, and even without Exhibit B, the photograph of the deceased assuming it was wrongfully admitted in evidence but of which it was not, the lower Court was perfectly right to have convicted the Appellant for the offence of culpable homicide punishable by death for the killing of the deceased and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel referred to Section 84 (1) and 135 (1) of the of the Evidence Act 2011 and relied on Ogie V. State (2017) 16 NWLR (Pt. 1591) 287 AT p. 298, Alo V. The State (2015) LPELR – 24404 (SC), Olaoye V. State (2018) LPELR – 43601 (SC), Kamila V. State (2018) LPELR – 43603 (SC), Yahaya V. State (2005) NCC 120 AT p. 123, Shade V. State (2005) 22 NSCQR 756, Adegbite V. State (2017) LPELR 42585 (SC).

On his issue two, learned counsel for the Respondent had submitted inter alia in law a Court can validly convict an Accused person solely on his retracted confessional statement since the confessional statement of an Accused person is admissible so long as it is voluntary and complied with the permissible methods of taking statements from Accused persons and contended that in law the mere fact that an Accused person, such as the Appellant before the lower Court, resiled or denied making the statement does not render such statement inadmissible and urged the Court to hold that the lower Court was perfectly in order when it convicted the Appellant on the basis of his retracted confessional statement as in Exhibit A and to dismiss the appeal and affirm the conviction of the Appellant for the offence of culpable homicide.

Counsel referred to Section 221 of the Penal Code and relied on Amos V. State (2018) LPELR – 44694 (SC), FRN V. Iweka (2013) 3 NWLR (Pt. 1341) 285 AT pp. 330 -331, John V. State (2017) 16 NWLR (Pt. 1591) 304 AT p. 352, John V. State (2011) 18 NWLR (Pt. 1278) 353 AT pp. 385 – 386.

It was also submitted that the lower Court did not only base the conviction of the Appellant on his retracted confessional statement but made use of other corroborative evidence as were available in arriving at its decision to convict the Appellant and contended that the evidence of PW2 corroborated the confessional statement of the Appellant as to render it probable and urged the Court to hold that the evidence of Respondent’s witnesses were direct, positive and without equivocation and irresistibly pointed to the guilt of the Appellant as rightly held by the lower Court and to dismiss the appeal and affirm the judgment of the lower Court.

Counsel relied on Bassey V. State (2012) 12 NWLR (Pt. 1314) 209 AT p. 227, Lasisi V. State (2013) 9 NWLR (Pt. 1358) 74 AT pp. 93 – 94, Galadima V. State (2013) NWLR (Pt. 1333) 610 AT p. 632, Amos V. State (2020) LPELR – 49663 (CA), Olalekan V. State (2001) LPELR – 2561 (SC), Jimoh V. State (2014) 3 SCNJ 27, Ugwu V. State (2020) LPELR – 50207 (CA) Bako V. State (2018) LPELR – 44479 (CA).

On his issue three, learned counsel for the Respondent had submitted inter alia that on the strength of the evidence of PW1, PW2 and Exhibit A the Respondent proved its case beyond reasonable doubt to warrant the conviction of the Appellant and contended that in law proof beyond reasonable doubt is not proof beyond the shadow of doubt and urged the Court to hold that the fact of the death of deceased, the cause of the death of the deceased and that fact that the death of the deceased was intentionally caused by the Appellant were amply established in the evidence of the PW2 and the confessional statement of the Appellant in Exhibit A and to dismiss the appeal for lacking in merit and affirm the judgment of the lower Court.

Counsel referred to Section 135 (1), (2) and (3) of the Evidence Act 2011 and relied on Afolalu V. State (2010) 16 NWLR (Pt. 1220) 584 AT p. 607, Miller V. Minister of Pensions (1947) 2 All ER 372.

On his issue three, learned counsel for the Respondent had submitted inter alia that the defence of self – defence, though one of the commonest defences usually raised by Accused person in homicide cases, did not avail the Appellant and contended that in the instant case in which the Appellant a young man of 27 years retaliates to the attack of an old and weaker man can not be held to be proportionate when on the evidence it was the Appellant that came into the house of the deceased angry and with a cutlass and who had struck the Appellant in the self – defence and urged the Court to hold that the defence of self – defence would have readily availed the deceased and not the Appellant who was indeed the aggressor and to dismiss the appeal and affirm the judgment of the lower Court.

Counsel relied on Braide V. The State (1997) 5 NWLR (Pt. 5041) 141 AT p. 149 SC, Njoku V. State (1993) 7 SCNJ 36, Amala V. State (2004) 18 NSCQR 834, Nkpuma V. State (1999) 9 NWLR (Pt. 317) 374, Omoregie V. State (2008) 12 NWLR (Pt. I111)1, Nwede V. State (1995) 3 NWLR (Pt.384) 385, Nwede V. State (1985) 3 NWLR (Pt 13) 374. RESOLUTION OF ISSUES ONE AND TWO My Lords, the first issue deals with the essential ingredients required to be proved to sustain a conviction for the offence of culpable homicide punishable with death with which the Appellant was charged by the Respondent.

In a charge alleging culpable homicide punishable with death under Section 221(a) of the Penal Code, the law is that the Prosecution has the onus, an onus which in criminal trials never shifts, to prove the essential elements of the offence of culpable homicide punishable with death, to wit: i. The fact of the death of the deceased; ii. That the death of the deceased was caused by the act of the Accused person; iii. That the act of the Accused was intentional with knowledge that death or grievous bodily harm was the probable result.

See Section 221 of the Penal Code Cap 94 Laws of Niger State 1989. See also Sa’adu Deriba (Driver) V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA. See also Alhaji Mua’zu Ali V. The State (2015) 5 SCM 26. See also Tajudeen Iliyasu V. The State (2015) 11 NCC 300, Uguru V. The State (2002) LPELR 3325 (SC) and Umar V. The State (2014) 238 LRCN 141.

However, it must be pointed out for once that in proving the guilt of an Accused person, the Prosecution has open to it three basic types of evidence with which to prove the guilt of accused person, namely; i: Confessional statement; ii: Circumstantial evidence and iii: Evidence of eye witness. See That the act of the Accused was intentional with knowledge that death or grevious bodily harm was the probable result. See Section 221 of the Penal Code Cap 94 Laws of Niger State 1989. See also Sa’adu Deriba (Driver) V.

The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA, Saheed V. State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Abu V. State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103, Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666, Peter Igho V. The State (1978) 3 SC 87, Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.

What then are the pieces of evidence led by the parties on these essential element of the offences charged and what are the conclusions reached thereon by the Court below in its judgment? I have taken time to painstakingly review and evaluate the entirety of the oral evidence of PW1, PW2, PW3 and PW4, that testified in support of the case of the Respondent against the Appellant and the Exhibits A, B and C tendered by the Respondents.

I have also painstakingly reviewed and evaluated the entirety of the oral evidence of the Appellant as DW1 and DW2 and DW3, that testified in support of the defence of the Appellant to the charge as laid against him by the Respondent. I have also taken time to review and consider the submissions of learned counsel for the parties in the light of the findings in the judgment of the lower Court, in which it was held inter alia thus: “On the 1st element of the offence, it is not in dispute that Ibrahim Zaki was a human being and has died.

The eye witness account of PW2 and evidence elicited from DW2 as well as Exhibits A and B have sufficiently established that Ibrahim Zaki (victim named in the charge) has died…It is my considered view that the death of Ibrahim Zaki has been conclusively established even though no medical evidence was tendered in respect thereof… On the second element… there is ample evidence in the record for suggesting that the deceased died directly from the act of the Accused person.

There is a confessional statement in which he admitted that he machete the deceased on the head who died on the spot… Exhibit A, confessional statement of the accused which was admitted in evidence without any objection from the defense is sufficient to sustain or ground a conviction against him.

Although the Accused at the trial impliedly retracted his confession by saying that he was not at the scene when the deceased was hacked to death, the statement does not become inadmissible… I must say that the confessional statement has been corroborated by the evidence of PW2 and DW2 (Eye – witnesses) who witnessed how the Accused person gruesomely hacked the deceased with a cutlass… I am also convinced that the statement in Exhibit A is consistent with other facts which have been ascertained and proved… On the third and last ingredient of the offence charged… the guilty mind of the Accused person or otherwise can be ascertained from evidence of PW1, Exhibit A, the weapon (Exhibit C) used in the commission of the offence and the manner the weapon was used.

From the above piece of evidence, it is glaring that the Accused conceived the idea to kill the deceased before he struck him with the cutlass… The Court can safely infer from the above evidence that the Accused person’s act was premeditated. The inevitable conclusion is that the Accused had the intention to kill the deceased and he indeed achieved his mission.” See pages 71 – 88 of the Record of Appeal.

Now, on the first and second elements of the offence of culpable homicide, requiring the Respondent, as the Prosecution before the lower Court to prove the fact of the death as well as the cause of death of the deceased, Ibrahim Zaki, there is the evidence of PW2, the wife of Ibrahim Zaki, and eye witness to the incident who had testified inter alia thus: “I was present when they killed my husband. As the accused machete my husband with cutlass, I used my hand to protect him and as a result, he struck the cutlass and chopped one of my fingers of the right hand. This is my hand.

My finger is completely cut off as the Court can see. The accused person was the one that struck me with the cutlass and chopped off one of my fingers. The name of my husband that was killed by the accused is Ibrahim.” Even on the part of the Appellant, there is the evidence of DW2, who had testified inter alia thus: “Because of the pain, the accused also took a cutlass and struck Mohammed Zaki (deceased) on the head. I was present when all these happened.

Mohammed Zaki (deceased) died as result of the cutlass strike meted out on him by the Accused person.” On the part of the Appellant himself, there is his extra-judicial statement made to the Police and which statement was admitted in evidence without any objection, in which it is stated inter alia thus: “That five months ago, my father Haruna is not well…one native Doctor on Gadon Kaya M of Ukuru village continue to treating him, when giving medicine to my father, he continued mentioned Ibrahim Zaki is going to kill him, that he witch his father to death and I went to Ibrahim Zaki house and told him to come and hear what my father saying against him, in order to take action but he refused and I mentioned that if my father die I will take action against him.

On 18/3/2015 at about 09:00 hours my father Haruna Muhammadu come did and before my father was buried I went into Ibrahim Zaki house and machete on his head and die on the spot.” There is also Exhibit B which was a still photograph of a corpse alleged to be that of the deceased, Ibrahim Zaki. Regrettably, the maker was not called to even merely identify whose corpse was that.

I cannot but agree with the vehement contention of learned counsel for the Appellant, and without even bothering myself with the issue of whether or not Exhibit B is a computer generated document within the meaning and context of Section 84 of the Evidence Act 2011, that Exhibit B produced in evidence by PW4, without any proper foundation laid as to the whereabout of the maker was inadmissible in evidence and ought not to have been admitted in evidence and relied upon by the lower Court in reaching any of its decisions in the judgment appealed against.

However, I am also minded to agree with the apt submission of learned counsel for the Respondent that Exhibit B even if expunged and discountenanced, as I have already held above, was of no moment to the correctness or otherwise of the decisions of the lower Court. In other words, whether or not the decision of the lower Court was correct can be determined with reference to the other pieces of admissible evidence before the lower Court as in the Record of Appeal.

My Lords, on the strength of the evidence before the lower Court as regard the first and second essential elements of the offence of culpable homicide punishable with death, did the Respondent prove as required of it by law these first two essential elements of the offence with which the Appellant was charged and was the lower Court right when it held in the affirmative that the Respondent proved these first two essential elements of the offence of culpable homicide punishable with death against the Appellant?

Now to succeed, the Respondent as the Prosecution must lead credible evidence establishing the essential ingredients of the offence charged. In doing so, it need not call a horde of witnesses since in law the credible and cogent evidence of a sole witness will be sufficient to secure a conviction for an offence no matter the heinous nature of the offences charged in so far as corroboration is not required by law.

Thus, once the essential ingredients of the offence charged is sufficiently established by the evidence put forward by the Prosecution, it is immaterial that a particular witness was not called or that a particular document was not tendered in evidence. See Alhaji Muadzu Ali V. The State (2015) 5 SCM 26. See also Odili V. The State (1977) 4 SC 1, Oguonzee V. The State (1998) 5 NWLR (pt. 551) 521, Alonge V. IGP. (1959) 4 FSC 203, Ibodo V. The State (1975) 9 – 11 SC (Reprint) 80, Abeke Onafowokan V. The State (1987) 1 NWLR (Pt. 61) 538. See also Akpabio V.

The State (1994) 7 NWLR (Pt. 359) 635, Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 AT Pp. 250-251. See also Olayinka V. The State (2007) 4 SCNJ 53 AT p. 73, The State V. Ajie (2000) 3 NSCQR 53 AT p. 66, Adebayo Rasaki V. The State (2014) 10 NCC 1.

It must be pointed out at once that in proving the guilt of an Accused beyond reasonable doubt, and I agree on this with the submission of the learned counsel for the Respondent, it does not impose on the Respondent any greater duty than it simply entails, which is proof of all the essential ingredients of the offence(s) charged and not proof beyond all iota of doubt or proof to the hilt. See Sa’adu Deriba (Driver) V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA. See also Saheed V.

State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Emmanuel Eke V. The State (2011) 200 LRCN 143 AT p. 149. However, in law minor inaccuracies or discrepancies not going to the root of the case of the parties may not go to any issues. However, crucial inconsistencies and/or contradictions touching on the substance of the case of the Prosecution against an Accused person would raise reasonable doubt, and which must be resolved in favour of the Accused person.

Thus, any reasonable doubt raised as a result of substantial inconsistencies or contradictions in the evidence led by the Prosecution must necessarily be resolved in favour of the Accused person. See Sa’adu Deriba (Driver) V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA. See also Saheed V. State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Madu V. The State (2012) LPELR – 122009 (SC), Famakinwa V. The State (2012) LPELR 972010 (CA), Umar V.

The State (1988) LPELR 171986 (SC). ​ It is true that before the lower Court there was no medical evidence of the cause of death of the deceased. The lower Court rightly averted its mind to this situation but there weas surfeit of evidence from the PW2, DW2 as well as the Appellant that the deceased had died and that he died on the spot upon being struck on the head by the Appellant with a cutlass. I agree with the lower Court, and I hereby affirm its finding as correct, that the Respondent proved that the deceased, Ibrahim Zaki, had died.

Having found as fact that the deceased, Ibrahm Zaki, had been proved by the Respondent to have died, the next essential element is whether it was the act of the Appellant that caused the death of the deceased? In other words, did the Respondent proved as fact what was the cause of death of the deceased and that it was linked to that act of the Appellant?

In law, it is not enough in a charge alleging culpable homicide punishable with death the fact that the fact of death of the deceased had been proved, but the Respondent must go further to prove by credible and cogent evidence that it was the act of the Appellant that caused the death of the deceased, which is the second essential element of the offence of culpable homicide punishable with death.

In arriving at its decision on the second essential element of the offence of culpable homicide, the lower Court had relied principally on the evidence of the PW1, PW2, DW2 and Exhibit A, but we were urged by the learned counsel for the Appellant to expunge the evidence of PW1, the IPO, for being hearsay evidence. However, I though it must be pointed out at once that in law generally the evidence of an Investigation Police Officer or any other investigator, on the facts he had gathered in the course of investigation is not hearsay. See Akwara V.

State (2019) LPELR – 49537 (CA) AT pp. 23 – 24, where it was stated inter alia thus: “The poser in the circumstance should be whether the evidence of an investigating police officer as regards what he saw or discovered during an investigation is hearsay and therefore inadmissible. The Appellant cannot be seriously contending that the testimony of PW2 is hearsay.

Evidence of an investigating Police Officer is never to be tagged as hearsay.” Looking at and considering the evidence of PW2, DW2 and the content of Exhibit A, it seems clear to me that the Respondent proved by credible evidence that the deceased died on the spot upon being hit with a machete by the Appellant.

It is very safe in the circumstances, and I hold that the lower Court was right, to hold that the Appellant act of hitting the deceased, Ibrahim Zaki, with the machete on his head was the cause of the death of the deceased. in law, in the proved circumstances of this case, there was, in my finding, absolutely no necessity for any medical evidence to prove the cause of death. ​ In coming to the above conclusion that the Respondent successfully proved as fact that the deceased, Ibrahim Zaki, had died, I am aware that in law, the best way of proving the death of the deceased in criminal trials such at the instant one is either a medical certificate of death showing that the deceased is dead and the cause of death or the viva voce evidence of the Medical Doctor who performed an autopsy on the body of the deceased to testify to the fact that the deceased had died and what in his finding was the cause of death of the deceased.

However, whenever the circumstances revealed in evidence show that the deceased had met his death simultaneously with an attack on him with a lethal weapon or so soon thereafter, then the law is that neither a medical evidence of his death by means of a death certificate nor post mortem report would be essential as being a sine qua non for the proof of both death and cause of death. In such circumstances, the Court could infer the cause of death from the proved circumstances. In Ben V.

State (2006) 16 NWLR (Pt. 1006) 582, the Supreme Court had held inter alia thus: “The position of the law in this respect had been stated in numerous cases. It is that in cases where a man was attacked with lethal weapon and he died on the spot, cause of death can properly be inferred that the wound inflicted caused the death. Put in another form, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide case. Such a situation arises where death was instantaneous or nearly so.” See also Abu V.

The State per Sir Biobele Abraham Georgewill JCA, Oforlete V. The State (2000) 12 NWLR (Pt. 681)415, Tonara Bakuri V. The State (1965) NMLR 163 AT p. 164, Eric Uyo V. Attorney – General of Bendel State (1986) 1 NWLR (Pt. 17) 418, Onwumere V. The State (1991) 4 NWLR (Pt. 186) 428, Nwachukwu V. The State (2002) 12 NWLR (Pt. 782) 543, Aiguoreghian V. State (2004) 3 NWLR (Pt. 860) 367.

Now, having held that the Respondent proved and the lower Court was right when it so held that the Respondent proved the first two essential elements of the offence of culpable homicide against the Appellant, the next issue is whether the Respondent proceeded forward to prove the third element of the offence alleged against the Appellant, namely: That the act of the Accused was intentional with knowledge that death or grievous bodily harm was the probable result. See Section 221 of the Penal Code Cap 94 Laws of Niger State 1989. See also Sa’adu Deriba (Driver) V.

The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA; Abu V. The State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA. In proof of this very crucial element of the offence of culpable homicide, the Respondent relied heavily on the contents of Exhibit A, the extra-judicial statement of the Appellant to the Police.

In its judgment, the lower Court relied heavily on the contents of Exhibit A, along with the evidence of PW1, PW2, PW3 and DW2 in arriving at its finding that the Respondent also proved the third most essential element of the offence of culpable homicide against the Appellant. Now, it is on the third element, of all the three essential elements, that the parties to this appeal had joined the most contentious issue in this appeal. In other words, whether or not the Respondent proved the mental element of the offence of culpable homicide.

So, did the content of Exhibit A, prove the third element of the offence of culpable homicide as was held by the lower Court? What then in law is a confessional statement in the light of the content of Exhibit A, the extra-judicial statement of the Appellant? A confessional statement is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. Where such confession is voluntary and relevant, it is admissible against the person who made it. See Sections 28 and 29 of the Evidence Act 2011. See also Akhilomen V.

State (2017) LPELR – 42668 (CA) AT pp. 29 per Mudashiru Nasiru Oniyangi, JCA. See also Nwachukwu V. State (2002) 7 SC (Pt. 1) 124 AT p. 136, State V. Olashehu Salawu (2011) 12 SC (Pt. IV) 191 AT pp. 212 – 217, FRN V. Iweka (2001) 11-12 SC (Pt. 1) 109 AT pp. 150 – 154.

By Section 60 of the Penal Code Penal Code Cap. 89, Laws of Northern Nigeria, 1963 as applicable in Niger State, it is provided thus: “Every person has a right, subject to the restrictions hereinafter contained, to defend his own body and the body of any other person against any offence affecting the human body.” In his extra-judicial statement to the Police, Exhibit A at page 7 of the Record of Appeal, the Appellant had stated inter alia thus: “On reaching his house, he, Ibrahim Zaki now deceased took his cutlass and stabbed me on my shoulder three times but God did not allow it to enter my body or inflicted injuries on my body.

Hence, I took my cutlass and machete him on the back of his head. He fell down and died on the spot.” The DW2 supported the plea of self-defence of the Appellant at pages 56 – 57 of the Record of Appeal: “At the time, the accused was on his way back and he met the altercation. As a result of the hit Fatima and child were injured and so later died after the dead of our father As I said, at the time of the incident, the accused return from Daban Baure.

The Accused asked what happened that Maude hit his sister Mohammed Zaki (deceased) answered the Accused from his house, he then came out with a cutlass and strike the Accused on the neck but the cutlass could not penetrate. Because of that the Accused also took a cutlass and struck Mohammed Zaki (deceased).” My Lords, in law the plea of self-defence posits that a person can act in ways that would otherwise be unlawful to prevent the commission of a crime. It is defined as a use of force to protect oneself, one’s family or one’s property from a real or threatened attack.

Thus, a person is justified in using a reasonable amount of force in self defence, if such a person believes that the danger of bodily harm is imminent and that force is necessary to avoid the danger. The defense of self-defense is an exculpatory defense where it avails an Accused person and thus by its operation negatives the intention or mens rea to cause grievous bodily harm as is required to constitute the third essential element of the offence of manslaughter.

However, to avail oneself of this defense, it must be apparent on the face of the credible evidence led that Accused person, the Appellant as in the instant appeal: i. Must have been unlawfully assaulted and must not have provoked the assault. ii. The nature of the assault must be such as caused reasonable apprehension of death and grievous harm; iii. There must be a belief on reasonable grounds that the accused cannot otherwise preserve his life. See Sampson Nkemji Uwaekweghinya V. State (2005) 9 NWLR (Pt. 930) 227 AT p. 250. See also Braide V.

The State (1997) 5 NWLR (Pt. 5041) 141 AT p. 149, Saheed V. State (2018) LPELR 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Njoku V. State (1993) 7 SCNJ 36, Amala V. State (2004) 18 NSCQR 834, Omoregie V. State (2008) 12 NWLR (Pt. III1) 1 Nwede V. State (1995) 3 NWLR (Pt.384) 385, Nwede V. State (1985) 3 NWLR (Pt 13) 374, Umana V. The State (1972) 4 SC 164, Bassey V. The State (1963) 1 All NLR 280, Chukwu V. State (2012) LPELR – 9829 (SC), Uwaekweghinya V. State (2005) 9 NWLR (Pt. 930) 227.

The defense of self – defense is by itself a complete defense and thus avails an Accused person in a criminal trial for murder etc once it is shown by credible evidence that the Accused acted in self – defence to save his own life and body from bodily harm, or injury from the deceased. However, to successfully rely on a plea of self-defense it must be shown by the person relying on the plea of self-efense 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.

The issue of disengagement would depend on the peculiar circumstances of each case. Thus sometimes it may be possible for a person being attacked to run away from his assailant and at times it may be impossible for the person being attacked to physically withdraw or save himself except by resort to available means of self-defense. In all, one thing seem certain and that is there must some form or measure of proportionality between the threat and the response for the defense of self-defense to avail an Accused person charged with for example murder as in the instant appeal.

In Adeyinka Albert Laoye V. The State (1985) 2 NWLR (Pt. 10) 832 AT pp. 843 – 844, the Supreme Court had considered the issue of proportionality of force used in self-defense and opined inter alia thus: “The degree of force used is only relevant while one is considering the circumstances of the encounter so as to determine whether there were reasonable grounds for the prisoner’s belief that his life is in danger. Once it is agreed that there were such grounds, the amount of force used by the prisoner to preserve his own life becomes immaterial.

In a fight to the death, it is only expected that once the prisoner believes on reasonable grounds that his life is in danger he would go all out to preserve his life, and that may entail making sure that the deceased is dead beyond any question. See also Sampson Nkemji Uwaekweghinya V. State (2005) 9 NWLR (Pt. 930) 227 AT p. 250, Saheed V. State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Umana V. The State (1972) 4 SC 164, Bassey V. The State (1963) 1 All NLR 280, Chukwu V. State (2012) LPELR – 9829 (SC).

My Lords, the onus was squarely on the Respondent to prove not only the fact of death of the deceased and the cause of death of the deceased but also that the death of the deceased was caused by the intentional act of the Appellant. In other words, it must be shown not only that the deceased had died, but also that he died as a result of the act of the Appellant and which act or omission was done intentionally with the knowledge that death was the probable or likely consequences of the act.

In all criminal trials, it is incumbent upon the trial Court to consider all the defenses put up by the accused person either expressly or impliedly as apparent on the evidence and therefore, no matter whether the defense is full of figments of imagination, or is fanciful or bereft of reason and or based on lies or even doubtful, the Court must not be weary to give them due consideration. An Accused person is in law entitled to all the defenses open and available to him on the evidence before the Court whether specifically raised by him or not and thus must be fully considered by the Court.

See Olayinka Ayeni V. The People of Lagos State (2016) LPELR-41440(CA) per Sir Biobele Abraham Georgewill JCA. See also Saheed V. The State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Abu V. The State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Ani V. The State (2003) 11 NWLR (Pt. 830)142, Green V. Queen (1955) 15 WACA 73, R. V. Bramah (1945) 11 WACA 49, Nwuzoke V. The State (1988) 1 NWLR (Pt. 72) 529, R. V. Bio (1945) 11 WACA 46 AT p. 48, Asanya V. State (1991) 3 NWLR (Pt. 180) 442, Ekpenyong V. The State (1993) 5 NWLR (Pt. 295) 513, Grace Boms V.

The State (1971) All NLR 335. There is evidence from the Appellant and one of his witnesses, DW2, which was neither cross-examined upon nor discredited and therefore, had remained unchallenged and uncontroverted that the Appellant was attacked with a cutlass thrice by the deceased but it could not penetrate his body and in turn the Appellant struck the deceased on the head which led to the death of the deceased on the spot. Curiously, neither the Appellant nor DW2 were cross-examined on this crucial issue of attack on the Appellant with machete by the deceased.

Worse, still it never even merited a mention in the entirety of the judgment of the lower Court. In law, where evidence given by a party to a proceeding is not challenged by the adverse party as in this case, it is deemed admitted and the Court ought to act positively on it. See Okereke & Anor V. Aba North LGA (2014) LPELR – 23770 (CA) AT p. 38. See also Odulaja V. Haddad (1973) 11 SC 35, Nwabuoku V. Ottih (1961) 2 SCLR 232.

My Lords, it is the primary function of the trial Court to evaluate evidence and ascribe probative value to it having had the advantage of seeing and observing the witnesses as they testified. Where the trial Court fails to discharge that primary duty or does so unsatisfactorily by drawing the wrong inferences from the evidence led, the Appellate Court has the duty of interfering with the view to doing the justice any of the parties richly and manifestly deserves.

Thus, the lower Court was under a duty to properly evaluate and appraise the evidence led by both the Respondent, as the Prosecution, and the Appellant, as the Defendant, as to all the ingredients of the offence charged, to determine whether or not they were established and the defenses raised and or apparent from the evidence, whether or not they were made out in favour of the Appellant. See Timothy Abu V. The State (2022) LPELR – 56902(CA) per Sir Biobele Abraham Georgewill JCA. See also Aliyu V. State (2013) LPELR – 20748 (SC).

See also Kwajaffa V. BON Ltd (2004) 13 NWLR (Pt. 889) 374, State V. Onyeukwu (2004) 14 NWLR (Pt. 893) 340 SC. Now, under the Penal Code, where a person is killed as a result of the use of reasonably necessary force to such extent and in such circumstances as is permitted by law in one’s personal defence from unlawful violence or for the defence of property, the death is justifiable and does not violate the right to life. Such a defence, where it avails an accused person, justifies or excuses by law the act or omission of the accused thereby rendering him not liable for the offence charged.

This operate as a complete defence to the charge where it is upheld. See Sections 59, 60, 65 and 66 of the Penal Code. See also Apugo V. State (2006) 16 NWLR (Pt. 1002) 227, Nwuzoke V. State (1988) 1 NWLR (Pt. 72) 529, Baridam V. State (1994) 1 NWLR (Pt. 320) 250, Laoye V. The State (1985) 2 NWLR (Pt.10) 8, Odu V. State (2001) 10 NWLR (Pt. 722) 668, Mallelan V. State (2017) LPELR – 43034 (CA).

In considering a plea of self defense, the Court must take into consideration the fact of whether the deceased was carrying any weapon at the time he was killed by an Accused person who relies on the plea of self – defense as such factor is very material to the determination of proportionality or otherwise of the action of the Accused person. Indeed, to be prepared at all times to defend oneself from harm or attack, so long as the means used in the self – defense is not disproportionate, is nothing unusual. See Osagie V. State (2018) LPELR – 46666 (CA) per Sir Biobele Abraham Georgewill JCA.

See also John Mgboko V. The State (1972) LPELR – 1872 (SC). See also Stephen V. State (1986) NWLR (Pt. 46) 978, Uwagboe V. State (2008) 12 NWLR (Pt. 1102) 621, Omoregie V. State (2008) LPELR – 2685 (SC).

On the totality of the evidence led by the parties therefore, and having calmly considered the unchallenged and uncontroverted evidence of the Appellant as DW1, and supported by the evidence of DW2, I hold that the lower Court failed in its primary duty of determining the matters placed before it by the parties on an even scale of justice when it failed completely to consider or even avert its mind to the evidence of the Appellant having acted in self – defence before it and proceeded to convict him of the offence of culpable homicide without considering the effect of the plea of self – defence, as was ably supported by DW2, on the third most crucial element of the offence of culpable homicide, and thereby arrived at the was perverse finding that the third element was proved merely on account of Exhibit A, which it considered as a complete confessional statement of the Appellant whilst ignoring and disregarding the clear statement of self – defence contained therein.

I find that the defence of self – defence clearly availed the Appellant. There was nothing disproportionate in the weapon used by the Appellant in his self – defence to ward off the three times attack with machete by the deceased as both of them used machete. The fact that the deceased was older than the Appellant, is in my finding, of no moment to the success of the defence of self – defence. The Appellant did not have to wait to die or be grievously harmed or injured from the three machete strikes from the deceased before he would be legally justified to defend himself.

Indeed, dead men no longer have need for self – defence!

Thus, both the failure of the lower Court and its decision finding the third essential elements of the offence of culpable homicide punishable with death as proved against the Appellant by the Respondent were perverse and occasioned a grave miscarriage of justice against the Appellant. These perverse findings and conclusions are therefore, liable to be set aside. See Re: Glaxo Smithkline Consumer Nigeria Plc. (Miss Funmilayo Rotola Ayodele Williams V.

Glaxo Smithkline Consumer Nigeria Plc. (2019) LPELR – 47498 (CA), where this Court per Georgewill JCA, had reiterated inter alia thus: “A decision of a Court is perverse when it ignore the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such decision and set it aside.” See also Ogunde V. Abdulsalam (2017) LPELR – 41875 (CA) per Sir Biobele Abraham Georgewill JCA AT pp 35 – 35; Obajimi V. Adediji (2008) 3 NWLR (Pt. 1075) 1 AT p. 19.

My Lords, in law conviction for any offence can only be secured based on proof by sufficient, credible and cogent evidence in satisfaction of all the essential elements of the offence charged, failing which an Accused person is entitled to be discharged and acquitted. In a charge alleging the gravest of offences, such as culpable homicide punishable with death murder, and therefore, carrying the death penalty upon conviction, the clearest of evidence invoking neither doubt nor mere passion or compassion in the Court is required. See Section 135 (1) – (3) of the Evidence Act 2011.

See also Deriba V. State (2016) LPELR- 40345 (CA) per Sir Biobele Abraham Georgewill JCA, Abu V. State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Saheed V. State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Ajose V. FRN (2011) 6 NWLR (Pt. 1244) 465 AT p. 470, Emmanuel Eke V. The State (2011) 200 LRCN 143 AT p. 149. ​ As I bring this judgment to a close, it is to be noted that an Accused person cannot in one breadth rely on self – defence that he killed the deceased in self – defence while in another breadth claim that he did not kill the deceased.

It is either he killed the deceased but the death of the deceased was justifiable under self – defence or he did not kill the deceased at all. Either way one and both of them cannot be true. This is so because in law for the defence of self – defence to be raised, the Accused person must admit to the commission of the crime. See Mgboko V. State (1972) 1 RSLR 19. My Lords, while guilt proved beyond reasonable doubt must be punished according to law, the innocent must be set free and not punished.

The sentence of death upon conviction for culpable homicide punishable with death under Section 221(a) of Penal Code is not to be handed down carelessly, thoughtlessly, lackadaisically without clear evidence of the guilt of the Accused person. It is only to be passed when it is clear that the Accused person has been proved to have committed the offence alleged against him by the State beyond reasonable doubt.

The reasoning behind such a judgment sending a man to the gallows must be clear on the face of the judgment and if I may add should be impeccable and the product of logical thinking and sound legal deductions. See Felix Nwosu V. The State (1986) 5 NWLR (Pt. 348) 359, where the erudite Eso JSC., (God bless his soul) had waxed inter alia thus: “A judgment sending a man to the gallows must be seen to be the product of logical thinking based upon admissible evidence which facts lead to conviction as clearly found and the legal deduction thereupon carefully made.

It must not be allowed to stand if it is founded upon scraggy reasoning.” I also call to remembrance the evergreen words of the erudite Obaseki JSC., in Saidu V.

The State (1982) 1 NLR 49 AT p. 67, poignantly and poetically capturing as it were the finer principle of law on the need for Courts to refrain from convicting and sentencing Accused person to Prison, much more to death on evidence not proving their guilt beyond reasonable doubt thus; “It does not give the Court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law, in our law Courts, they are entitled to walk about our streets and tread the Nigerian soil and breath the Nigerian air as free as innocent men and women.” What more do I need to say on this issue?

None I can think of than to simply bow to the ingrained sense of wisdom and justice in the above statement of the law by no less a Court than the Apex Court in the land, and so I bow. ​ In the light of all I have sated and found as above, issues one and two are hereby resolved in favour of the Appellant against the Respondent as the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code was not proved beyond reasonable doubt by the Respondent against the Appellant as required by law, contrary to the perverse decision of the lower Court.

The defence of self – defence raised and relied upon by the Appellant even in his extra-judicial statement to the Police and also reiterated in his evidence before the lower Court, avails him and thereby negatived the third most crucial mental element of the offence of culpable homicide punishable with death. On the whole therefore, I hold that this appeal is pregnant with merit and should perforce succeed and it is accordingly hereby allowed. In the result, the judgment of the High Court of Niger State, Kontagora, Division, Coram: A. Abdullahi Mika’ilu J, in Charge No.

NSHC/KG/5C/2016: The State .V. Muhammadu Lawal delivered on 23/11/2018, in which the Appellant was convicted of culpable homicide punishable with death contrary to Section 221 of the Penal Code and sentenced to death is hereby set aside.

In its stead, the Appellant is hereby forthwith discharged and acquitted on the sole count as laid in Charge No. NSHC/KG/5C/2016: The State .V. Muhammadu Lawal.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA. I equally agree with the reasoning and the conclusion that the appeal succeeds and it is accordingly allowed. The judgment of the lower Court delivered on 23/11/2018, is hereby set aside. I abide by the consequential orders therein.

BATURE ISAH GAFAR, J.C.A.: I have before now read in draft the judgment just delivered by my learned brother,, Sir Biobele Abraham Georgewill, JCA. I agree with and adopt the reasonings and conclusion expressed in the leading judgment. I have nothing more useful to add. In consequence and for the fuller reasons articulated in the leading Judgment, I join my learned brother in setting aside both the conviction and sentence on the Appellant and acquitting him of the charge in the trial.

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.

Judgment

The burden of proving beyond reasonable doubt the guilt of an accused person rest on the prosecution by virtue of Section 135(1) of the Evidence Act, 2011. The prosecution can discharge its burden in three ways namely; 1. Confessional Statement 2. Evidence of an eye witness 3. Circumstantial evidence which is accurate, cogent, convincing and compelling, pointing to only one conclusion that the accused was the one who committed the act. See Emeka v. State (2001) 14 NWLR (Pt.734) 666 at 683; Akinmoju v. State (1995) NWLR (Pt. 406) 24 at 212. PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment) : This appeal is against the judgment of High Court of Justice Katsina State. Coram Hon. Justice Abdullahi Yusuf Chief Judge (as he then was) delivered on 18th January, 2018 in charge No: KTH/16C/2015. The appellant was arraigned before the lower Court on a one count charge, alleging the offence of Culpable Homicide punishable with death contrary to Section 221 of the Penal Code laws of Katsina State. Prior to his arraignment, the appellant was a serving Police Officer, a constable attached to Central Police Station Katsina.

He was a friend of the deceased Barau Usman. The charge reads: THAT YOU MUHAMMED MAIKUDI of Kofar Sauri Quarters Katsina, Katsina State on or about the 19th day of October, 2014 at Kofar Guga in Katsina Metropolis committed Culpable homicide punishable with death by doing an act to wit: causing the death of USMAN BARA’U by drowning him in a pond with the knowledge that death will be the probable consequence of your act and thereby committed an offence punishable under Section 221 of the Penal Code. Dated this 2nd day of September, 2015. ​The appellant pleaded not guilty to the charge.

In order to prove its case the respondent/prosecution called four witnesses and tendered two exhibits. These are the statements of the appellant in Hausa and English version, marked as Exhibits A and A1 respectively. The appellant testified in his own defence and no other witness was called. Learned counsels filed and exchanged written addresses. In a considered judgment the learned trial Chief Judge found the appellant guilty. He was convicted and sentenced to death.

Aggrieved by the decision, the appellant appealed to this Court vide a Notice of appeal filed on 16th April, 2018, it contain three (3) grounds of appeal. ​At the hearing of the appeal on 27th January, 2022 Usman Salihu of counsel adopted the appellant’s brief of argument filed on 25th of August 2021. He urged the Court to allow the appeal and set aside the judgment of the lower Court. And Nabila Galadima Principal State Counsel Ministry of Justice Katsina State, adopted the respondent’s brief of argument filed on 26th of January, 2022 and deemed on the 27th January, 2022.

He urged the Court to dismiss the appeal and affirm the decision of the lower Court. From the three grounds of appeal, the appellant distilled three issues for determination thus: 1. Whether having regard to the discrepancies and contradiction in prosecution witnesses, the Court below was right to have convicted and sentenced the appellant to death in accordance with the provision of Section 221 Penal Code law of Katsina State. 2. Whether the Court below or lower Court was right to have passed judgment and condemned the appellant to death on hearsay evidence adduced before it. 3.

Whether the Court below was right to have passed or condemned the appellant to death without weighing or evaluating evidence adduced before it. On the other hand, the respondent distilled one issue for determination thus: “Whether the prosecution had proved the offence of Culpable homicide punishable with death under Section 221 of the Penal Code beyond reasonable doubt to support the conviction and sentence of the appellant by the trial Court”. ​Upon a careful consideration of the three issues submitted by the appellant and the sole issue formulated by the respondent.

I am of the view that the sole issue submitted by the respondent is enough to dispose of the appeal. Accordingly, I adopt the respondent’s issue for determination. The appellant’s counsel submitted that there were so many discrepancies and contradictions in the prosecution witnesses which may cause serious doubt in the mind of the Court. He referred to the testimony of PW3 Haruna Adamu of the State CID Katsina who informed the Court that he did not see any sign of struggle at the scene of the crime which, contradict the testimonies of PW1 and PW2 at pages 20 and 23 of the record.

He submitted that were there is a lot of discrepancies in the prosecution witnesses which is very fatal to the case at hand as it caused serious doubts. He relied on the case of Emmanuel Egwumi v. State (2013) 2 SCNJ (Pt. 111) 878. The learned counsel submitted that the testimonies of PW1 to PW4 were just hearsay, none of them witness what transpired at the scene of the crime. He submitted that hearsay evidence cannot be employed to convict the accused person. He cited the case of Joseph Daniel Uwa v.

The State (2015) 4 NWLR (Pt. 1450) 438 and Section 125 of the Evidence Act 2011 and Section 38 of the Evidence Act 2011. Learned counsel submitted that the prosecution failed to prove its case against the appellant beyond reasonable doubt. He relied on the case of Mohammed v. State (2007) 13 NWLR (Pt. 1050) 186. The learned counsel submitted that there was no proper evaluation of oral evidence as well as the documentary evidence tendered and marked as exhibits A and A1.

The learned trial Judge only made reference to the prosecution’s case and that of the defence without properly evaluating the evidence adduced before it more particularly exhibits A and A1. Learned counsel submitted that an appellate Court would ordinarily not interfere with the findings of a trial Court where that Court has carried out its duty of evaluating the evidence before it and ascribing probative value thereto. However where the evidence is documentary an appellate Court is in good position as the trial Court to evaluate same.

Where there is a complaint that the finding of the Court is not supported by the evidence before it. He relied on the case of Rev. Prof Paul Emeka v. Rev. Dr. Chidi Okoroafore (2017) 11 NWLR (Pt. 577) 410. ​In his response the respondent’s counsel submitted that the prosecution has proved beyond reasonable doubt the ingredients of the offence with which the appellant was convicted of by the trial Court, relying on circumstantial evidence before the Court. He referred to the testimonies of PW1–PW4.

PW1 and PW2 gave a direct witness account stating that they saw the body of the deceased and buried same. And evidence of circumstances is cogent, strong and irresistibly point to only one conclusion that the appellant was the one who drown the deceased in the pond, which resulted to his death. And that circumstantial evidence can sustain conviction provided its compelling accurate, reliable, cogent and convincing. He relied on the case of Onah v. State (1985) 12 SC 59 and Omogodo v.

State (1985) 5 SC 5. ​Learned counsel submitted that the appellant’s counsel in his brief, he stated that the evidence of the prosecution is characterized by discrepancies and contradictions without actually pointing to such alleged discrepancies and contradictions. The appellant’s counsel only referred to the testimony of PW3 who told the Court that he did not see any sign of struggle at the scene of the crime. But the appellant ignored the fact that PW3 told the Court that he did not visit the scene on the day the case was transferred.

The alleged discrepancy and contradiction is only in the air, it does not exist. On the issue of hearsay evidence, the respondent’s counsel concede that the evidence of PW4 is hearsay, but the evidence of PW1 and PW2 cannot be so. Their evidence is direct, cogent, conclusive and irresistibly pointing to one conclusion that it was the appellant that killed the deceased. Learned counsel submitted further that the trial Court properly reviewed, analysed and evaluated the evidence of both parties in its judgment.

It is in the evidence of the prosecution that the appellant was the last person seen with the deceased before his death. His dead body was recovered from a pond with cut on his part of the body and strangulation marks. He relied on the case of Amos v. State (2019) 1 NWLR (Pt. 1653) 233 and Igba v. The State (2018) 6 NWLR (Pt. 1614) 44. The learned counsel submitted that the respondent had proved before the trial Court the offence of Culpable homicide punishable with death under Section 221 of the Penal Code Law against the appellant, by circumstantial evidence beyond reasonable doubt.

It is settled law that in order to sustain a conviction in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following ingredients. (a) That there was a death of a human being. (b) That the death was as a result of the act of the accused and (c) That the act was done with the intention of causing such injury that death would be probable consequence of his act. See Jua v. State (2010) NWLR (Pt. 1184) 217 at 250; Yaki v. State (2008) 7 SC 28 at 29.

By virtue of the provision of Section 36(5) of the Constitution of the FRN 1999 (as amended) every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

The burden of proving beyond reasonable doubt the guilt of an accused person rest on the prosecution by virtue of Section 135(1) of the Evidence Act, 2011. The prosecution can discharge its burden in three ways namely; 1. Confessional Statement 2. Evidence of an eye witness 3. Circumstantial evidence which is accurate, cogent, convincing and compelling, pointing to only one conclusion that the accused was the one who committed the act. See Emeka v. State (2001) 14 NWLR (Pt.734) 666 at 683; Akinmoju v. State (1995) NWLR (Pt. 406) 24 at 212.

In this instant case, the prosecution relied on circumstantial evidence hence there is no confessional statement or evidence of an eye witness. The circumstantial evidence rest on the doctrine of last seen. The doctrine of last seen requires that a person charged with murder who was the last person seen with the deceased before his death, should offer some explanation as to how the deceased met his death. It is the responsibility imposed on the accused upon the invocation of the doctrine of last seen that shifts the burden to him to prove his innocence. See Idi v.

State (2019) 15 NWLR (Pt. 1696) 448 (SC); Ismail v. State (2011) 47 NSCQR 89 at 131. In the determination of this appeal it is important to consider the reasoning of the learned trial Chief Judge, the ratio decidendi which brought about the conviction of the appellant, in order to limit the parameters of the content of the appeal. The learned trial Chief Judge at page 42-43 of the record held thus; “The prosecution has proved the first ingredient as the mother of the deceased testified as to having seen the corpse of her son.

I now come to the second ingredient of death was caused by the accused and such proof must be beyond reasonable doubt. The prosecution in this case has the duty to prove that it is the act of the accused namely he was the one who caused the death of the deceased. The defence were alleging drowning in a pond but there is no evidence led to prove that the deceased could have died outside the water and then thrown into the pond where he was brought out. There was no evidence from those who discovered him and brought him out of the pond.

The crux of the matter is that circumstantial evidence is the only means of getting to the root cause of the death of the deceased. It was proved that the deceased went out with the accused, the accused himself confirmed going to Kofar Guga by the pond and that the deceased said he wanted to swim. The accused did not witness the deceased going into the pond nor did he set his eyes on him until he was discovered dead. The most serious aspect of the defence of the accused is why did he not call for help or go to the police station as a police officer of about 10 years standing?

Instead, he went to the deceased residence with his motorcycle and cloth. I have carefully analysed the defence of the accused but I am unable to give him clean bill of being innocent from what happened. As his friend why did he not dissuade him from swimming in such water which under cross-examination he said “he left him by the pond, he waited to take a swim, they met some children by the time they reached the pond they left the two of them. He looked for him he did not see him.” This Court finds the testimony of the accused incredible and unbelievable.

The accused must be instrumental to the death of the deceased. I hereby find you Mohammed Maikudi guilty of killing Usman Barau by drowning him in the pond thereby committing an offence punishable under Section 221 of the Penal Code.” From the excerpts of the judgment, it is crystal clear that the learned trial Chief Judge convicted the appellant solely on circumstantial evidence relying on the doctrine of last seen.

In line with the reasoning of the learned Chief Judge, it does not appeal to logic and common sense to say that the appellant who is a police officer of over ten years and a colleague of the deceased, after he accompanied the deceased to the pond to swim, he would allow him to drown in the pond without making any effort to seek for help in order to rescue the deceased. And moreso instead of reporting to the police station immediately, he simply took the deceased motorcycle and cloth to the deceased mother in their house.

It is without any doubt that the appellant owe a duty to offer some explanation which is cogent and reliable in order to exculpate himself from criminal liability otherwise it is legally justified to infer that the appellant is responsible for the death of the deceased.

As a matter of fact, in Exhibit A and A1 the appellant stated that “… then I took the cloths and the motorcycle and took them to his mother, then the mother said I must bring her son back from there we, went to CPs Katsina asking me where did I took her son…” ​This piece of evidence clearly explains the logic behind the last seen doctrine even from a layman’s point of view. In the present circumstance, the only evidence to be relied upon is the circumstantial evidence and the application of the doctrine of last seen in the absence of an eye witness account, or a confessional statement.

The learned trial Chief Judge properly applied the doctrine of last seen in this instant case. In the case of Amos v. State (supra) Perter Odili JSC stated thus; “This doctrine of “last seen” was properly applied in this instance by the two Courts below in the absence of explanation as to what happened or caused the death of the deceased last seen in the company of the accused/appellant. It is that full responsibility imposed on the appellant upon the invocation of this doctrine that shifted the burden to him to prove his innocence which he failed to do. See Njoku v.

The State (2013) 2 NWLR (Pt. 1339) 548. What is available in this case as a method to establish the culpability of the appellant is circumstantial evidence which can in certain situations be stronger than even an eye witness account. It is such that when the different pieces of evidence are taken altogether, there is this tie leading to the irresistible and compelling conclusion that the crime was committed and by no other than the accused.

It can take on such a logical reading with the precision of mathematics that leaves no room for any other conjecturing possibility than that the crime for which the accused/appellant was charged was committed by him and could not have been done by another.

It is the efficiency of the circumstantial evidence that existed in this case that left the two Courts below without any resistance but to accept it as sufficient to sustain the conviction that is in line with what has become trite and reiterated by the Courts including the Apex Court and I shall for effect cite and quote the case of Amusa Opoola Adio & Anor v. The State (1986) 4 SC 194 at 219-220; (1986) 2 NWLR (Pt. 24) 581…” This case is in all fours with the case of Amos v. State (supra). The accused/appellant offered no explanation as to how the deceased met his death.

What is more worrisome is the fact that the accused/appellant was a police officer at the time of the incident and the deceased was his colleague and a friend. It is often said that witnesses can lie but circumstances do not. The conduct of the appellant after the death of the deceased leaves no one in doubt that he is responsible for the death of the deceased. In a normal situation any reasonable person will seek for help to rescue a drowning person. And if death results from the drowning it should be reported immediately to the police.

But the accused/appellant being a police officer who is in a better position to take this two steps, he failed to do so. The only logical deduction that could be made is that the appellant failed to report himself. The appellant’s counsel claimed that there were discrepancies and contradictions in the evidence of prosecution witnesses but the respondent’s counsel rightly submitted that the appellant’s counsel failed to point out such discrepancies and contradictions.

Equally the contention of the appellant’s counsel that the lower Court passed judgment and condemned the appellant to death on hearsay evidence does not hold water. The evidence of PW1 and PW2 is crystal clear to the effect that the deceased died and he was buried. The circumstantial evidence is compelling, accurate, reliable, cogent and convincing that no one else but the appellant was responsible for the death of the deceased.

The learned trial Chief Judge had properly evaluated the evidence before the Court and therefore an appellate Court will have no reason to interfere with the findings. The circumstances that will warrant an appellate Court to interfere with the findings of the lower Court are non-existent. See Ochiba v. State (2011) 12 SC (Pt. IV) P. 79 and Olowu v. Nig. Navy (2011) 12 SC (Pt. 11) P. 1. In view of the foregoing, it is my considered view that the judgment of the learned trial Chief Judge cannot be faulted. I therefore resolve the sole issue against the appellant.

The appeal lacks merit and it is accordingly dismissed. The conviction and sentence of the appellant is hereby affirmed.

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 reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

KENNETH IKECHUKWU AMADI, J.C.A.: I had the privilege of reading before now, in the draft, the judgment just delivered by my learned brother, Abubakar Mahmud Talba, JCA. ​I agree with the reasons adduced to arrive at the conclusion that the appeal is devoid of merit; same is accordingly dismissed by me. ​The judgment and the sentence of the trial Court is hereby affirmed.