KANO STATE v. ABDULLAHI & ORS (2020)

KANO STATE v. ABDULLAHI & ORS

(2020)LCN/14574(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, September 11, 2020

CA/K/193C/2017

RATIO

PLEADINGS: NON-CONFORMITY WITH OR DIFFERENCES FROM A PRESCRIBED FORM IN AN ENACTMENT

The law has been settled a long time ago by Section 23 of the Interpretation Act of 1964 that the validity or genuineness of a legal process shall not be questioned on the ground of non-conformity with or differences from a prescribed form in an enactment, unless the deviation is material and it was done with the intention to mislead. This position of the law has been affirmed by a long line of Court decisions starting from Bucknor-Macleans Vs Inlaks Ltd (1980) All NLR 184, Pharmacist Board of Nigeria Vs Adegbesote (1986) 5 NWLR (Pt 44) 707, Mora Vs Adeyeye (1990) 4 NWLR (Pt 142) 76 at 87, Okwueze Vs Ejiofor (2000) 15 NWLR (Pt 690) 389, Ajadi Vs Ajibola (2004) 16 NWLR (Pt 898) 91, Garuba Vs Yahaya (2007) 3 NWLR (Pt 1021) 390, Nwadike Vs Awka South Local Government (2008) 16 NWLR (Pt 1112) 203, APGA Vs Dantong (2011) LPELR 9233(CA), Board of Management, Federal Medical Center, Makurdi Vs Abakume (2016) 10 NWLR (Pt 1521) 536. It was reiterated in the proviso to Order 17 Rule 4(2) of the Court of Appeal Rules, 2016.
It is irrelevant, contrary to the impression of Counsel to the Respondents, that the legal process in question is filed in a criminal matter; the law is the same. Thus, the Supreme Court has held that once a charge brought against an accused person discloses the offence charged and does not mislead the accused person in any way as to the offence he has been brought to Court to defend, any defect in the charge either as to omission or non-conformity with some formal requirements will not affect the validity of the charge – Ogbomor Vs State (1985) 1 NWLR (Pt 2) 223 at 234-235, Okpa Vs State (2017) 15 NWLR (Pt 1587) 1, Ikpa Vs State (2018) 4 NWLR (Pt 1609) 175, Abdullahi Vs State (2018) 16 NWLR (Pt 1644) 121. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RATIO

PLEADINGS: NOTICE OF APPEAL.

Now, the essence of a notice of appeal and of the grounds of appeal contained therein is to give sufficient notice and information to a respondent of the precise nature of the appellant’s complaint against the judgment appealed against. It is to avail the Court and the respondent the opportunity of knowing the appellant’s grouse against the judgment appealed against – Garuba Vs Kwara Investment Co. Ltd (2005) 5 NWLR (Pt 917) 160, Minister of Petroleum & Mineral Resources Vs Expo-Shipping Line (Nig) Ltd (2010) 12 NWLR (Pt 1208) 261. The law is that once a notice of appeal satisfies this purpose and leaves no ambiguity or cloudiness as the complaint of the appellant and no room for any surprise to be thrust on the respondent on appeal and it clearly specifies who the respondent is and the address of the respondent for service, the notice of appeal is valid and competent notwithstanding that aspects of it are not in conformity with the specifications of the Rules of Court –Ogboru Vs Okowa (2016) 11 NWLR (Pt 1522) 84, Ngere Vs Okuruket XIV (2017) 5 NWLR (Pt 1559) 440, Sylva Vs Independent National Electoral Commission (2018) 18 NWLR (Pt 1651) 310. It was not the complaint of the Respondents that the notice of appeal did not satisfy the stated requirements, including putting them on notice of the exact grouse of the Appellant with the judgment appealed against.

This ground of objection is a display of the unholy embrace of Counsel to the Respondents with the technicalities in, rather than the substance of, the notice of appeal. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RATIO

PLEADINGS: TECHNICALITIES

The Courts have maintained over the years that the sole purpose of a Court is to do substantial justice between the parties that come before it for adjudication of disputes and not to adhere to technical issues that becloud the justice of a matter because such adherence to technicalities to the detriment of substantial justice inevitable leads to injustice –State Vs Gwonto (1983) 1 SCNLR 142, Adama Vs State (2018) 3 NWLR (Pt 1605) 94, Saliu Vs Federal Republic of Nigeria (2018) 3 NWLR (Pt 1605) 161. In UTC (Nig) Ltd Vs Pamotei (1989) 2 NWLR (Pt 103) 244, Belgore, JSC (as he then was) stated at page 296F that:
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the Rules. This certainly is not the raison d’etre of the Rules of Court.”
In Omoju Vs Federal Republic of Nigeria (2008) 7 NWLR (Pt 1085) 38 at page 57, Tobi, JSC, made the point:
“Let us leave technicalities for the game of chess which players win by technicalities and craftiness. Courts of law have long moved away from the domain or terrain of doing technical justice to doing substantial justice. This is because technical justice in reality is not justice but a caricature of it; it is justice in inverted commas and not justice synonymous with the principles of equity and fair play. Caricatures are not the best presentations or representations. Substantial justice which is actual and concrete justice is justice personified. It is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law …”
In Osareren Vs Federal Republic of Nigeria (2018) 10 NWLR (Pt 1627) 272, Eko, JSC, reiterated at page 233C-E thus:
“… a technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. In other words, it arises when a party holds or relies tenaciously unto the rules of Court with little or no regard to the justice of the matter. As far as he is concerned, like Shylock in the Merchant of Venice, the rules must be followed to the last sentence, the last word and the last letter. The party emphasizing on technicality has little or no regard to the justice that would be sacrificed or injustice that would be caused to the opponent. The attitude of the Courts, these days, is to enthrone substantial justice without undue adherence to technicalities.”
What a Court called upon to uphold technical justice is enjoined to do is to follow the advice given by Lord Atkin in United Australia Ltd Vs Barclays Bank Ltd (1941) AC 1 at 29 that:
“When these ghosts of the (technicalities) past stand in the path of justice, clanking their medieval chains, the proper course for the judge is to pass through them undeterred.”

This is exactly what this Court will do in this case. The Court holds that the first ground of the preliminary objection is clueless and it is hereby refused. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RATIO

PLEADINGS: EVALUATION OF EVIDENCE

Now, it is elementary that it is the primary responsibility of a trial Court to hear the parties, watch and observe the demeanour of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision. This is regulated by time honoured procedure designed to mete out justice to both parties before the Court. The procedure is crucial in its observance. The trial Court is enjoined to place the totality of the testimonies of both parties on an imaginary scale. One side of the scale will contain the evidence of the plaintiff while the other side will harbor the evidence of the defendant. The Court must then weigh them together to see which side is heavier than the other. This is in terms of quality, not quantity. To help the Court in this regard, it should consider whether the evidence led by a party in its totality is relevant, admissible, credible, conclusive and more probable than that adduced by the other party. Once these considerations fall into line, the Court will then apply the relevant laws to the facts or evidence adduced, in order to reach a decision.
A trial Court must avoid vitiating the case presented by the parties through its own wrongly stated or misapplied principle of law. It must carefully examine the evidence and clearly understand the issues he has to resolve in the case and then proceed to resolve them. Its duty is to reach a decision only on the basis of what is in issue and what has been demonstrated upon the evidence by the parties and supported by law. The observance of the procedure for evaluation of evidence is crucial to arriving at a just decision. Its breach will most likely lead to a perverse decision – Mogaji Vs Odofin (1978) 4 SC 91, Adeleke Vs Iyanda (2001) 13 NWLR (Pt 729) 1, Okoko Vs Dakolo (2006) 14 NWLR (Pt 1000) 401, Tippi Vs Notani (2011) 8 NWLR (Pt 1249) 285, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217.
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru supra. The whole essence of the law and procedure governing the conduct of trials is to enable a trial Court to, at the conclusion of trial, evaluate the evidence led by the parties and come to a fair, and not perverse, conclusion. This is the duty of a trial Court, whether or not the parties filed final written addresses, and the final addresses of Counsel to the parties are only meant to assist the trial Court in fulfilling this duty, and not to derogate from it.
A fresh issue is defined as an issue that was not raised by the parties and which a lower Court had no opportunity of considering and pronouncing upon. A trial Court definitely had the opportunity, and in fact a duty, to properly consider the evidence led by the parties and to come to right conclusion on their probative value in discharging the requisite onuses of proof. Where a party complains that a trial Court was derelict in its performance of this duty and that it ignored and overlooked credible evidence led before it and thus came to a perverse decision, it definitely cannot be said to amount to fresh issue on appeal. It is a proper issue that a party can raise without leave and it is one that can even be raised under the omnibus ground of appeal – Ajibona Vs Kolawole (1996) 10 NWLR (Pt 476) 22, Osolu Vs Osolu (2003) 11 NWLR (Pt 832) 608. It is an issue which this Court is duty bound to consider. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RATIO

PLEADINGS: BURDEN OF PROOF.

It is settled 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.
It must however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt or proof of a mathematical certainty. Thus, 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 – Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Philip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.

It is trite that for a prosecution to secure a conviction for culpable homicide, 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 would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted –Orisadipe Vs State (2019) 13 NWLR (Pt 1688) 24, Akinsuwa Vs State (2019) 13 NWLR (Pt 1688) 161, Abbas Vs People of Lagos State (2019) 16 NWLR (Pt 1698) 213.

In deliberating on the offence of culpable homicide, the lower Court found in the judgment that the Appellant led credible evidence to prove the first ingredient; that the death of a human being occurred. The lower Court stated in the judgment thus:
“It is in evidence of prosecution that the death of one Alhaji Auwalu Jubril has occurred and this was also supported by Exhibit O2 a-d, i.e. the pictures of the deceased and also Exhibit 03 the medical report from Murtala Muhammad Hospital.”
This finding has not been contested by the Respondents and it is thus valid, binding and conclusive on the first ingredient of the offence of culpable homicide and cannot be tamper with by this Court – Saraki Vs Federal Republic of Nigeria (2018) 16 NWLR (Pt 1646) 405 and Ecobank (Nig) Ltd Vs Anchorage Leisures Ltd (2018) 18 NWLR (Pt 1650) 116.

On the second ingredient of the offence, whether it was the act of the Appellant that caused the death of the deceased person, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant – Udosen Vs State (2007) 4 NWLR (Pt 1023) 125, Oche Vs State (2007) 5 NWLR (Pt 1027) 214, Ekpoisong Vs State (2009) 1 NWLR (Pt 1122) 354, Iliyasu Vs State (2014) 15 NWLR (Pt 1430) 245. This point was made by the Supreme Court in the case of Oforlete Vs State (2000) 12 NWLR (Pt 631) 415 thus:
“In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence.”

In deliberating on this ingredient, the lower Court stated in the judgment thus:
“That the death was caused by the act of the accused persons and from the evidence of PW1 and PW3 they testified that they heard the sound of gunshot at the side of their late father and they all admitted under cross examination that they were not there when their late father was killed, they only saw him in pool of blood and none of the evidence linked the shooting to any of the three accused persons. It is a settled rule that all the ingredients must be proved and that once the prosecution fail to prove any one of them the accused should be given the benefit of doubt … none of the evidence showed that the accused shot the deceased.”

Now, implicit in the above deliberation is that the lower Court accepted that the Appellant led credible evidence to prove that the death of the deceased was caused by a gunshot wound to his side. But it found that there was no eye witness evidence linking the Respondents to the shooting of the deceased. It is this finding that the Appellant is quarreling with in this appeal and it is the focus of its complaint – that the finding is perverse because the lower Court ignored and closed its eyes to credible circumstantial evidence on record linking the Respondents to the shooting of the deceased.

In deliberating on the complaint of the Appellant, it is necessary to put the allegations against the Respondents in proper perspective. One of counts that the Respondents were charged with along with the count of culpable homicide was armed robbery. The allegation against the Respondents was that on the 19th of June, 2007, while armed with guns, they went to the household of the deceased and robbed persons therein of various sums of money and that, in the course of the robbery, they caused the death of the deceased by shooting him with a gun on his left flank with knowledge that death was the probable consequence of their action. In other words, that the offences of armed robbery and culpable homicide were committed in the course of one event and at one and the same scene of crime. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RATIO

PLEADINGS: LAW OF EVIDENCE.

It is settled law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive – Orisadipe Vs State (2019) 13 NWLR (Pt 1688) 24, Tope Vs State (2019) 15 NWLR (Pt 1695) 289, Abbas Vs People of Lagos State (2019) 16 NWLR (Pt 1698) 213. What this means is that in assessing the evidence put forward by the prosecution in proving its case against an accused person, a trial Court must consider whether there was a direct and positive confessional statement from the accused person admitting the commission of the offence and/or eye witness account of the commission of the offence by the accused person and/or circumstantial evidence from which the guilt of the accused person can be inferred. It is where there is no credible and cogent evidence establishing any of these three modes of proof that it will be said that the prosecution led no evidence linking the accused person to the commission of the offence.

The Appellant did not lead evidence of direct and positive confessional statements from the Respondents admitting the killing of the deceased. The lower Court in its deliberations on the count of culpable homicide, reproduced above, dismissed the case of the Appellant on the ground that there was no eye witness account of the shooting of the deceased by the Respondents. It is obvious that the lower Court did not evaluate the evidence led by the Appellant to decipher if there was credible and cogent circumstantial evidence from which the guilt of the Respondents could be inferred. It is obvious that the lower Court did not properly evaluate the entire evidence led before it in making its findings on the count of culpable homicide. The Appellant thus made out a case of improper evaluation and/or non-evaluation of evidence on the part of the lower Court.

Counsel to the Appellant has urged this Court to interfere in the evaluation process by carrying out a proper evaluation of the evidence led by the parties. Now, it is settled that the proper steps for an appellate Court to take where the lower Court has failed to properly evaluate the evidence led by parties at the trial is either to order a retrial or carry out the evaluation of the evidence available on the records if the question of credibility of witnesses would not arise – Orianwo Vs Okene (2002) 14 NWLR (Pt 786) 156, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522. Where the credibility of a witness is not in point, a Court sitting on appeal can evaluate such evidence. Where the conclusion is arrived at without any real controversy, such as in the case of documentary evidence, or where there is oral evidence which involves merely an admission by the adversary, or there is an unchallenged piece of evidence, an appellate Court should consider itself to be in as good a position as the trial Court, in so far as the evaluation of such evidence is concerned – Ebba Vs Ogodo (1984) 1 SCNLR 372, Ogundepo Vs Olumesan (2011) 18 NWLR (Pt 1278) 54.

In the instant case, the lower Court had found in the course of its deliberating on the count of armed robbery that the evidence led by the prosecution witnesses of the events that occurred were cogent, credible and unchallenged, while the evidence given by the Respondents in their defence was worthless. Thus, the issue of credibility of the witnesses was resolved by the lower Court and the Respondents did not appeal against that resolution; meaning in essence that the Respondents accept the finding as true and correct. In the circumstances therefore, this Court is eminently placed to carry out a proper evaluation of the evidence led by the parties on the records.

The task before this Court in the re-evaluation of evidence is to discover if indeed the Appellant led credible circumstantial evidence on record linking the Respondents to the shooting of the deceased which was ignored and overlooked by the lower Court. 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. There was evidence in the testimony of the prosecution witnesses that when the Respondents and their gang gained entrance into the house of the deceased they were armed with guns, they specifically asked for the deceased and requested to be shown his room. There was evidence that despite the best efforts of the family members to mislead the Respondents as to the location of the deceased in the house, the Respondents located the room of the deceased, left the other people in the house and ran there when they heard the deceased trying to escape through the back door of his room and the people in the house thereafter heard a gunshot from the room of the deceased. The Respondents returned thereafter to the other members of the household and they ransack the house and took away valuables.

There was evidence that after Respondents and their gang left, the deceased was discovered near the back door of his room lying in a pool of blood and with an injury to his abdomen. There was evidence that the deceased was taken to the hospital whereat he was pronounced dead on arrival and he was discovered to have a blunt penetrating injury of the left side of his abdomen. In other words, there was evidence that the Respondents knew the deceased and that their going to his house that night was not random. There was evidence that the deceased was hale and hearty before the arrival of the Respondents and even after their arrival and it was after the deceased was chased down by the Respondents, while armed with guns, and a gunshot heard, that the deceased was found dead in a pool of his blood with a wound, synonymous with a gunshot injury, on his abdomen.

Additionally, implicit in the evidence led was the fact that the Respondents were the last set of people to see the deceased alive. The doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with him has turned up dead. Thus, where a defendant was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other safe conclusion, then there is no room for acquittal. It is the duty of the defendant in such damnifying circumstances to give an explanation relating to how the deceased met his or her death and in the absence of such an explanation, surely and certainly, a trial Court will be perfectly justified in drawing the necessary inference that the defendant must have killed the deceased – Iliyasu Vs State (2015) 11 NWLR (Pt 1469) 26, Olude Vs State (2018) LPELR 44070 (SC), Esseyin Vs State (2018) LPELR 44476(SC), Amos Vs State (2018) LPELR 44694(SC). The acts establishing the doctrine of “last seen” constitute substantial circumstantial evidence. The Respondents offered no explanation for the death of the deceased.

On the strength of these unchallenged pieces of evidence led by the Appellant and the un-rebutted presumption raised by the doctrine of last seen, it is extremely difficult not to be persuaded that the circumstances made out are such that are compelling, cogent and leading irresistibly to the conclusion that it was the act of the Respondents and their gang that caused the death of the deceased. It is immaterial in these circumstances that not all the Respondents shot the deceased. The principle of common intention in criminal cases postulates that where more than one person are accused of joint commission of a crime, it is enough to prove that all participated in the crime and what each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence –Asimi Vs State (2016) 12 NWLR (Pt 1527) 414, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Oladejo Vs State (2018) 11 NWLR (Pt 1630) 238, Balogun Vs State (2018) 13 NWLR (1636) 321.
In Alarape Vs The State (2010) FWLR (Pt. 41) 1872 at 1898 – 1894 the Supreme Court, per Iguh JSC said of the principle thus:-
“The point that needs to be emphasized in these sorts of cases is that once it is firmly established that two or more persons formed the necessary common intention to prosecute an unlawful purpose, and an offence of such a nature of such purpose is committed, each of them is deemed to have committed the offence. In such circumstances, the Court, once the execution of the common intention or design is established, would be right in asserting that it does not matter on such facts which of the accused person does what. This is for the simple reason that under such circumstances a fatal blow, though given by one of the accused persons involved, is deemed in the eyes of the law to have been given by the rest of his co-accused person. The person actually delivering the blow is said to be no more than the hand by which the others all strike.”
This principle clearly enveloped all the Respondents in the commission of the act that caused the death of the deceased. The Appellant thus led sufficient cogent evidence linking the Respondents with the death of the deceased. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RATIO

PLEADINGS: INTENTION AS AN ELEMENT OF MURDER.

.It is settled law that in order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused – Iden Vs State (1994) 8 NWLR (Pt 365) 719, Isah Vs State (2017) LPELR 43472(SC), Peter Vs State (2018) LPELR 44357 (SC), Richard Vs State (2018) LPELR 45157(SC). Thus, in Owhoruke Vs Commissioner of Police (2015) 15 NWLR (Pt 1483) 557, the Supreme Court held a man who stabs another on the neck region with a bottle is deemed to have intended to kill or cause grievous bodily harm.

In the instant case, the shooting of the deceased by the Respondents with a gun, a lethal weapon, on his abdomen, a fragile part of the body, could only have been intended to cause the deceased a grievous bodily harm. It is the law that a person intends the natural consequences of his action and if there was an intention to cause grievous bodily harm and death results, then the defendant must be held culpable for the offence of murder – Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548, Afosi Vs State (2013) 13 NWLR (Pt 1371) 329.
There was thus cogent, credible and sufficient evidence led by the Appellant before the lower Court to prove beyond reasonable doubt that the Respondents caused the death of the deceased intentionally; with knowledge that death or grievous bodily harm was the probable consequence of his act. The Appellant proved the third ingredient of the offence of culpable homicide against the Respondents.The Court finds and holds that the Appellant presented credible evidence to establish the offence of culpable homicide punishable with death against the Respondents beyond reasonable doubt. The Court finds merit in the appeal and it succeeds. The judgment of the High Court of Kano State delivered in Charge No K/14C/2012 by Honorable Justice Lawan Wada on the 30th of March, 2017 discharging and acquitting the Respondents of the offence of culpable homicide punishable with death is hereby set aside. The Court finds the Respondents guilty of the charge of culpable homicide punishable with death contrary to the provisions of Section 221 of the Penal Code Law of Kano State and they are convicted accordingly.The punishment for the offence of culpable homicide under Section 221 of the Penal Code Law is fixed and it is a death penalty and the Court has no discretion to reduce it to a term of imprisonment – Amoshima Vs The State (2011) 6 SCNJ 245, State Vs John (2013) 12 NWLR (Pt 1368) 337, Musa Vs State (2014) LPELR 22912(CA), Bassey Vs The State (2014) LPELR 24067(CA), Olasehinde Vs State (2016) LPELR 41337(CA). It is in this wise that this Court hereby sentences the Respondents to death by hanging. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

KANO STATE APPELANT(S)

And

MUNTARI ABDULLAHI, ALIAS GAWA 2. MOHAMMED SA’IDU, ALIAS TANGA 3. SAMINU MUSA, ALIAS SABGA RESPONDENT(S)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State delivered in Charge No. K/14C/2012 by Honorable Justice Lawan Wada on the 30th of March, 2017.

The Respondents were arraigned before the lower Court on a fourteen count charge – one count each of conspiracy to commit culpable homicide punishable with death and of culpable homicide punishable with death pursuant to Sections 97 and 221(b) of the Penal Code Law of Kano State, one count each of conspiracy to commit rape and of committing rape contrary to Sections 97 and 283 of the Penal Code Law of Kano State, four counts each of conspiracy to commit armed robbery and of armed robbery contrary to the provisions of Sections 97 and 298 of the Penal Code Law of Kano State, and one count each of conspiracy to commit culpable homicide and of attempted culpable homicide contrary to the provisions of Sections 97 and 229 of the Penal Code of Kano State. The Respondents pleaded not guilty to all the counts on the charge sheet.

The matter proceeded to trial and in the course of which the Appellant called five witnesses in

proof of its case and tendered exhibits, while each of the Respondents testified as sole witnesses in their respective defences. At the conclusion of trial and sequel to the adoption of written addresses, the lower Court entered judgment wherein it discharged and acquitted the Respondents for the offences of conspiracy to commit culpable homicide punishable with death and of culpable homicide punishable with death and conspiracy to commit rape and of committing rape, but found them guilty of the offences of conspiracy to commit armed robbery and of armed robbery and it convicted them accordingly and sentenced each of them to five years imprisonment without option of fine.

The Appellant was dissatisfied with the part of the judgment of the lower Court discharging and acquitting the Respondents for the offence of culpable homicide punishable with death and it caused its Counsel to file a notice of appeal dated the 28th of April, 2017 and containing one ground of appeal against it. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 30th of April, 2019 on the same date and the brief of arguments was deemed properly

filed and served on the 6th of November, 2019. In response, Counsel to the Respondents filed a notice of preliminary objection dated the 24th of June, 2020 on the 26th of June 2020 as well as a joint brief of arguments also dated the 24th of June, 2020 on the 26th of June, 2020 and the brief of arguments was deemed properly filed and served by this Court on the 7th of July 2020. Counsel to the Appellant filed a reply brief of arguments dated the 29th of June, 2020 on the same date and the reply brief of arguments was deemed properly filed and served by this Court on the 7th of July, 2020. At the hearing of the appeal, Counsel argued the preliminary objection of the Respondents and the substantive appeal by adopting the respective arguments contained in their briefs of arguments.

The Respondents predicated their preliminary objection on two grounds: (i) the failure of notice of appeal to comply with the mandatory provisions of the rules of Court; and (ii) failure of the Appellant to seek and obtain leave of Court to file the sole ground of appeal which raised a fresh issue that did not arise in the lower Court. The grounds of objection will be considered

seriatim.

In arguing the first ground of objection, Counsel to the Respondents stated that the notice of appeal filed by the Appellant was not in conformity with the Criminal Form 5 in the Schedule to the Court of Appeal Rules and as directed by Order 17 Rule 3 of the Rules and he referred to the case of FRN Vs Igbinedion (2015) 2 NWLR (Pt 1444) 475 in asserting that the Criminal Form 5 has some distinctive features. Counsel stated that the failure of the Appellant to conform with the Criminal Form 5 was a deliberate decision to contravene the Rules of Court and that Rules of Court are not merely for fun but must be obeyed and he referred to the case of Owners of the MV Arabella Vs NAIC (2008) 11 NWLR (Pt 1097) 182.

Counsel conceded that by the provisions of Section 23 of the Interpretation Act and as interpreted in the cases of Bucknor-Maclean Vs Inlaks (1980) 8-11 SC 1 and Garuba Vs Yahaya (2007) 3 NWLR (Pt 1021) 390, non-material deviation from a form provided in a statute is not fatal, but he stated that the deviations in the instance case were material because they were not only as to form and that the present appeal puts the lives of the

Respondents at stake and he referred to the cases of Nwadike Vs ALSG (2008) 16 NWLR (Pt 1112) 203, Akpan Vs Akpan (1996) 7 NWLR (Pt 462) 620 and A.G. Anambra State Vs Okeke (2002) 12 NWLR (Pt 782) 575. Counsel stated that this ground of objection was beyond mere technicality and he referred to the case of FBN Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444 and he further proceeded to distinguish the case of Salami Vs Bunginimi (1998) 9 NWLR (Pt 565) 235 where this Court held that such similar non-conformity with a prescribed form was not fatal. Counsel urged the Court to uphold the ground of objection.

In response, Counsel to the Appellant stated that the notice of appeal they filed contained all the necessary information that a notice of appeal should contain and it gave the Respondents requisite information about the complaint in the appeal and that as such, the fact that the Appellant did not use Criminal Form 5 in preparing the notice of appeal is of no consequence. Counsel referred to the provisions of Section 23 of the Interpretation Act and of Order 17 Rule 4(2) of the Court of Appeal Rules on non-compliance with prescribed forms and stated that

non-compliance with Rules of Court should not be allowed to defeat the cause of justice and he referred to the case of Okoli Vs NSITF Management Board (2016) LPELR 42231(CA). Counsel urged the Court to dismiss the ground of objection.

This Court must say that it is shocked that any Counsel with rudimentary knowledge of current legal positions will file such a nonsensical ground of preliminary objection in the present day. The law has been settled a long time ago by Section 23 of the Interpretation Act of 1964 that the validity or genuineness of a legal process shall not be questioned on the ground of non-conformity with or differences from a prescribed form in an enactment, unless the deviation is material and it was done with the intention to mislead. This position of the law has been affirmed by a long line of Court decisions starting from Bucknor-Macleans Vs Inlaks Ltd (1980) All NLR 184, Pharmacist Board of Nigeria Vs Adegbesote (1986) 5 NWLR (Pt 44) 707, Mora Vs Adeyeye (1990) 4 NWLR (Pt 142) 76 at 87, Okwueze Vs Ejiofor (2000) 15 NWLR (Pt 690) 389, Ajadi Vs Ajibola (2004) 16 NWLR (Pt 898) 91, Garuba Vs Yahaya (2007) 3 NWLR (Pt 1021) 390,

Nwadike Vs Awka South Local Government (2008) 16 NWLR (Pt 1112) 203, APGA Vs Dantong (2011) LPELR 9233(CA), Board of Management, Federal Medical Center, Makurdi Vs Abakume (2016) 10 NWLR (Pt 1521) 536. It was reiterated in the proviso to Order 17 Rule 4(2) of the Court of Appeal Rules, 2016.
It is irrelevant, contrary to the impression of Counsel to the Respondents, that the legal process in question is filed in a criminal matter; the law is the same. Thus, the Supreme Court has held that once a charge brought against an accused person discloses the offence charged and does not mislead the accused person in any way as to the offence he has been brought to Court to defend, any defect in the charge either as to omission or non-conformity with some formal requirements will not affect the validity of the charge – Ogbomor Vs State (1985) 1 NWLR (Pt 2) 223 at 234-235, Okpa Vs State (2017) 15 NWLR (Pt 1587) 1, Ikpa Vs State (2018) 4 NWLR (Pt 1609) 175, Abdullahi Vs State (2018) 16 NWLR (Pt 1644) 121.
Now, the essence of a notice of appeal and of the grounds of appeal contained therein is to give sufficient notice and information to a respondent of the precise

nature of the appellant’s complaint against the judgment appealed against. It is to avail the Court and the respondent the opportunity of knowing the appellant’s grouse against the judgment appealed against – Garuba Vs Kwara Investment Co. Ltd (2005) 5 NWLR (Pt 917) 160, Minister of Petroleum & Mineral Resources Vs Expo-Shipping Line (Nig) Ltd (2010) 12 NWLR (Pt 1208) 261. The law is that once a notice of appeal satisfies this purpose and leaves no ambiguity or cloudiness as the complaint of the appellant and no room for any surprise to be thrust on the respondent on appeal and it clearly specifies who the respondent is and the address of the respondent for service, the notice of appeal is valid and competent notwithstanding that aspects of it are not in conformity with the specifications of the Rules of Court –Ogboru Vs Okowa (2016) 11 NWLR (Pt 1522) 84, Ngere Vs Okuruket XIV (2017) 5 NWLR (Pt 1559) 440, Sylva Vs Independent National Electoral Commission (2018) 18 NWLR (Pt 1651) 310. It was not the complaint of the Respondents that the notice of appeal did not satisfy the stated requirements, including putting them on notice of the

exact grouse of the Appellant with the judgment appealed against.

This ground of objection is a display of the unholy embrace of Counsel to the Respondents with the technicalities in, rather than the substance of, the notice of appeal. The Courts have maintained over the years that the sole purpose of a Court is to do substantial justice between the parties that come before it for adjudication of disputes and not to adhere to technical issues that becloud the justice of a matter because such adherence to technicalities to the detriment of substantial justice inevitable leads to injustice –State Vs Gwonto (1983) 1 SCNLR 142, Adama Vs State (2018) 3 NWLR (Pt 1605) 94, Saliu Vs Federal Republic of Nigeria (2018) 3 NWLR (Pt 1605) 161. In UTC (Nig) Ltd Vs Pamotei (1989) 2 NWLR (Pt 103) 244, Belgore, JSC (as he then was) stated at page 296F that:
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice

of the cause, to my mind, will be making the Courts slavish to the Rules. This certainly is not the raison d’etre of the Rules of Court.”
In Omoju Vs Federal Republic of Nigeria (2008) 7 NWLR (Pt 1085) 38 at page 57, Tobi, JSC, made the point:
“Let us leave technicalities for the game of chess which players win by technicalities and craftiness. Courts of law have long moved away from the domain or terrain of doing technical justice to doing substantial justice. This is because technical justice in reality is not justice but a caricature of it; it is justice in inverted commas and not justice synonymous with the principles of equity and fair play. Caricatures are not the best presentations or representations. Substantial justice which is actual and concrete justice is justice personified. It is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law …”
In Osareren Vs Federal Republic of Nigeria (2018) 10 NWLR (Pt 1627) 272, Eko, JSC, reiterated at page 233C-E thus:
“… a technicality in a matter could arise if a party is

relying on abstract or inordinate legalism to becloud or drown the merits of a case. In other words, it arises when a party holds or relies tenaciously unto the rules of Court with little or no regard to the justice of the matter. As far as he is concerned, like Shylock in the Merchant of Venice, the rules must be followed to the last sentence, the last word and the last letter. The party emphasizing on technicality has little or no regard to the justice that would be sacrificed or injustice that would be caused to the opponent. The attitude of the Courts, these days, is to enthrone substantial justice without undue adherence to technicalities.”
What a Court called upon to uphold technical justice is enjoined to do is to follow the advice given by Lord Atkin in United Australia Ltd Vs Barclays Bank Ltd (1941) AC 1 at 29 that:
“When these ghosts of the (technicalities) past stand in the path of justice, clanking their medieval chains, the proper course for the judge is to pass through them undeterred.”

This is exactly what this Court will do in this case. The Court holds that the first ground of the preliminary objection is

clueless and it is hereby refused.

In arguing the second ground of objection, Counsel to the Respondents referred to the cases of Opobiyi Vs Muniru (2011) 18 NWLR (Pt 1278) 387 and FCDA Vs Nzelu (2014) 5 NWLR (Pt 1401) 565 in reiterating the well settled principle that fresh issues which were not put before the trial Court cannot be raised on appeal without leave. Counsel stated that at the conclusion of trial in the lower Court, the Respondents filed a written address wherein they alleged that there was no direct, credible evidence linking the Respondents with the shooting of the deceased, while the Appellant failed to file a final written address to emphasize on the lower Court to rely on circumstantial evidence in the absence of eye-witness account of the killing of the deceased. Counsel stated that the issue of non-reliance on circumstantial evidence by the lower Court, in the absence of eye witness evidence, reared its head for the first time in this appeal and the lower Court had no opportunity of considering it and pronouncing on it and the Appellant did not seek the leave of Court to raise the issue.

Counsel stated that this being the sole

ground of appeal of the Appellant, the appeal was incompetent and ought to be struck out in its entirety and he referred to the case of A.G. Akwa Ibom Vs Essien (2004) 7 NWLR (Pt 872) 288.

In response, Counsel to the Appellant reproduced the sole ground of appeal and its particulars and stated that the essence of the ground of appeal is that the lower Court did not properly evaluate the evidence led before it and thus reached a wrong conclusion on the count of culpable homicide punishable with death. Counsel referred to the cases of FCDA Vs Nzelu supra and Obajimi Vs Oloye (2017) LPELR 42709(CA) on the definition of a fresh issue and stated that an allegation of wrongful evaluation of evidence and drawing of wrong conclusion by a lower Court cannot amount to a fresh issue and that it is one that the Appellant can raise as of right. Counsel referred to the case of Adelodun Vs FRN (2017) LPELR 42356(CA) in reiterating the duty of a trial in evaluation of evidence and the drawing of probative value from evidence led before it by the parties and what a complaint of improper evaluation of evidence entails and stated that the non-filing of final written address

by the Appellant was irrelevant to the performance of the duty of proper evaluation of evidence by the lower Court and he referred to the case of Airtel Networks Ltd Vs George (2014) LPELR 22951(CA). Counsel urged the Court to disregard the second ground of objection.

Again, this second ground of objection is not one that any Counsel familiar with the rudimentary principles of evaluation of evidence by a trial Court and of the law and procedure governing appellate Court practice will raise in the circumstances of this case. This Court has read through the sole ground of appeal and the supporting particulars and, as rightly pointed out by Counsel to the Respondent, the essence of the complaint of the Appellant in this appeal is that the lower Court did not properly evaluate the evidence led before it and that it ignored cogent and credible evidence led by the prosecution witnesses and thus came to a wrong and perverse conclusion on the count of culpable homicide punishable with death.
Now, it is elementary that it is the primary responsibility of a trial Court to hear the parties, watch and observe the demeanour of witnesses called to testify before it,

admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision. This is regulated by time honoured procedure designed to mete out justice to both parties before the Court. The procedure is crucial in its observance. The trial Court is enjoined to place the totality of the testimonies of both parties on an imaginary scale. One side of the scale will contain the evidence of the plaintiff while the other side will harbor the evidence of the defendant. The Court must then weigh them together to see which side is heavier than the other. This is in terms of quality, not quantity. To help the Court in this regard, it should consider whether the evidence led by a party in its totality is relevant, admissible, credible, conclusive and more probable than that adduced by the other party. Once these considerations fall into line, the Court will then apply the relevant laws to the facts or evidence adduced, in order to reach a decision.
A trial Court must avoid vitiating the case presented by the parties through its own wrongly stated or misapplied principle of law. It must carefully examine the evidence and clearly

understand the issues he has to resolve in the case and then proceed to resolve them. Its duty is to reach a decision only on the basis of what is in issue and what has been demonstrated upon the evidence by the parties and supported by law. The observance of the procedure for evaluation of evidence is crucial to arriving at a just decision. Its breach will most likely lead to a perverse decision – Mogaji Vs Odofin (1978) 4 SC 91, Adeleke Vs Iyanda (2001) 13 NWLR (Pt 729) 1, Okoko Vs Dakolo (2006) 14 NWLR (Pt 1000) 401, Tippi Vs Notani (2011) 8 NWLR (Pt 1249) 285, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217.
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru supra. The whole essence of the law and procedure governing the conduct

of trials is to enable a trial Court to, at the conclusion of trial, evaluate the evidence led by the parties and come to a fair, and not perverse, conclusion. This is the duty of a trial Court, whether or not the parties filed final written addresses, and the final addresses of Counsel to the parties are only meant to assist the trial Court in fulfilling this duty, and not to derogate from it.
A fresh issue is defined as an issue that was not raised by the parties and which a lower Court had no opportunity of considering and pronouncing upon. A trial Court definitely had the opportunity, and in fact a duty, to properly consider the evidence led by the parties and to come to right conclusion on their probative value in discharging the requisite onuses of proof. Where a party complains that a trial Court was derelict in its performance of this duty and that it ignored and overlooked credible evidence led before it and thus came to a perverse decision, it definitely cannot be said to amount to fresh issue on appeal. It is a proper issue that a party can raise without leave and it is one that can even be raised under the omnibus ground of appeal –

Ajibona Vs Kolawole (1996) 10 NWLR (Pt 476) 22, Osolu Vs Osolu (2003) 11 NWLR (Pt 832) 608. It is an issue which this Court is duty bound to consider. The second ground of objection is preposterous and same is hereby also refused.

The notice of preliminary objection filed by the Respondents is downright frivolous and vexatious and a clear waste of the scarce judicial time of this Court. It is a clear case of abuse and misuse of the preliminary objection procedure and it is hereby dismissed. This takes us to the substantive appeal.

Counsel to the Appellant formulated one issue for determination in this appeal and it is:
Whether having regard to the strong and uncontroverted circumstantial evidence of death of Alhaji Auwalu Mohammed from gun injury on the date of the armed robbery, the lower Court ought not to have convicted the Respondents for the offence of culpable homicide punishable under Section 221(b) of the Penal Code.

Counsel to the Respondent conceded that there was indeed one issue for determination in the appeal, but he reformulated it to read:
Whether there was available to the trial Court cogent and compelling

circumstantial evidence to warrant convicting the Respondents for culpable homicide.

There can indeed be only one issue for determination in this appeal because the notice of appeal contained only one ground of appeal. This Court has read the notes of evidence of the witnesses, the judgment of the lower Court, the sole ground of appeal and the arguments of Counsel in their respective briefs, and is of view that the essence of this appeal will be better captured under the following issue for determination:
Whether, on the state of the evidence led at trial, the lower Court was correct when it found that the Appellant did not lead cogent and credible evidence to prove the ingredients of the offence of culpable homicide against the Respondents beyond reasonable doubt.

The arguments of Counsel to the parties will be considered under this issue for determination.

In arguing the issue for determination, Counsel to the Appellant stated that the lower Court found the Respondents guilty of armed robbery and convicted them but acquitted them of the killing of one Alhaji Auwalu Mohammed which occurred in the course of the armed robbery on the ground

that none of the prosecution witnesses testified to witnessing the physical shooting of the deceased by the Respondents and that there was thus no evidence linking the shooting to the Respondents. Counsel referred to the case of Akpan Vs State (2016) 2 SCNJ 541, amongst others, in reiterating the three ways of proving the guilt of an accused person and stated that the three ways are disjunctive and not conjunctive and that the lower Court restricted itself to only one of the ways, eye witness account.

Counsel stated that had the lower Court considered the third mode of proof, circumstantial evidence, as it was obligated to do in the absence of eye witness account and as directed by the Supreme Court in Omoregie Vs State (2017) LPELR 42466(SC), it would have found sufficient evidence to convict the Respondents. Counsel referred to the definition of circumstantial evidence in the case of Iliyasu Vs The State (2015) 2 SCNJ 223 and noted that the Supreme Court in the case of Igbikis Vs State (2017) LPELR 41667(SC) described circumstantial evidence as the best evidence. Counsel referred to the case of Njokwu Vs State (2013) 9 NWLR (Pt 1360) 417, amongst

others, in restating the three ingredients of culpable homicide that the Respondent was obligated to prove beyond reasonable doubt and stated that the lower Court had no difficulty in finding that the first ingredient, that the deceased died, was proved, and that the problem was with the second ingredient, that the death of the deceased was caused by the Respondents.

Counsel traversed through the testimonies of the prosecution witnesses on how the deceased died, and which he said were unchallenged, and he referred to the medical report of the cause of death of the deceased and stated that they fixed the Respondents bearing guns at the scene of the crime and that there was evidence that the Respondents ran after the deceased and that gun shots were heard and that the deceased was thereafter found in a pool of blood and was rushed to the hospital where he was confirmed dead. Counsel stated that the chain of events leading to the death of the deceased did not break and they led to no other conclusion other than that the Respondents shot the deceased and caused his death and that the lower Court was in error in closing its eyes to and failing to make

necessary inferences from the evidence led on record and he referred to the cases of Akinbisade Vs The State (2006) 9 SCNJ 1 and Anyasodor Vs State (2018) 8 NWLR (Pt 1620) 107.

Counsel reiterated the principles on burden of proof in criminal matters and stated that to insist that there must be eye witness evidence in every circumstance will not only negate proof by circumstantial evidence, but will also be pushing the requirement of proof beyond reasonable doubt beyond its elastic limit and he referred to the case of Bakare Vs State (1987) 1 NWLR (Pt 52) 579. Counsel stated that the last ingredient of the intention to kill or cause grievous bodily harm to the deceased can be gleaned from the nature of the weapon used and Respondents’ shooting of the deceased in the abdomen and he referred to the case of Isah Vs State (2017) LPELR 43472(SC). Counsel stated that there was cogent and credible circumstantial evidence before the lower Court from which it could have drawn the inference that it was the Respondents that killed the deceased and that this Court is empowered by Order 4 Rule 3 of the Court of Appeal Rules to draw inferences from facts and give

any judgment that the lower Court ought to have given.

Counsel urged the Court to find merits in the appeal, set aside the judgment of the lower Court and to convict and sentence the Respondents for culpable homicide punishable with death accordingly.

In response, Counsel to the Respondents conceded that circumstantial evidence was a recognized mode of proof to establish the truth in criminal trials but stated that the Courts have warned that it is one that must be accepted with caution and be narrowly examined in order not to convict an innocent person and he referred to the cases of Anyasodor Vs State (2018) 8 NWLR (Pt 1620) 107 and Omoregie Vs State (2018) 2 NWLR (Pt 1604) 505. Counsel stated that in the instant case, the Respondents were not arrested at the scene of the crime or within a proximate time and location and that, by the decision in the case of Lawali Vs State (2019) 4 NWLR (Pt 1663) 457, there was need, in the circumstances, for a proper identification of the Respondents and he traversed through the evidence of the prosecution witnesses and stated that none of them properly identified the Respondents as the perpetrators of the

crime.

Counsel stated that it was incumbent in the circumstances for the Appellant to have conducted an identification parade to determine that the Respondents were the perpetuators of the crime and he referred to the cases Ifedayo Vs State (2019) 3 NWLR (Pt 1659) 265 and Okosi Vs State (1989) 1 NWLR (Pt 100) 642 where he said that the Supreme Court described the features of a proper identification parade. Counsel conceded that an identification parade was conducted to pick out the Respondents but stated that the procedure adopted in doing so was highly irregular and called for the exercise of caution in relying on the outcome and he referred to the case of Pius Vs State (2016) 9 NWLR (Pt 1517) 341. Counsel stated that the Respondents also raised the defence of alibi and that when this is put together with the irregular identification parade, the necessary consequence is that this Court must reject the wobbly cocktail of circumstantial evidence that the Appellant is calling on it to rely on in convicting and sentencing the Respondents.

Counsel urged the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower

Court.

The Respondents were charged with culpable homicide punishable with death, amongst other counts. They were alleged to have caused the death of one Alhaji Auwalu Jibrin Abudakaya by shooting him with a gun on his left flank with knowledge that death was the probable consequence of their action. It is settled 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.
It must however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt or proof of a mathematical

certainty. Thus, 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 – Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Philip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.

not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted –Orisadipe Vs State (2019) 13 NWLR (Pt 1688) 24, Akinsuwa Vs State (2019) 13 NWLR (Pt 1688) 161, Abbas Vs People of Lagos State (2019) 16 NWLR (Pt 1698) 213.

the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence.”

deceased. It is this finding that the Appellant is quarreling with in this appeal and it is the focus of its complaint – that the finding is perverse because the lower Court ignored and closed its eyes to credible circumstantial evidence on record linking the Respondents to the shooting of the deceased.

Court?

The Appellant called five witnesses in proof of its case against the Respondents. The first prosecution witness was the daughter of the deceased, Ummu Muhammad Auwal. She testified that in the night of the 19th of June, 2007, she was at home with her parents and her siblings when they heard a gunshot and the light went off because their generator stopped working. She gave evidence that her mother and her co-wives said the engine of the generator must have burst and that she went out and saw people wearing black dresses holding guns and torch lights and they were asking for their father, whom they referred to as Chairman. She said that her small brother answered “Bayanan bai dawo ba” meaning he is not yet back and that they asked for his room and her mother showed them her own room, but the people heard their father opening his room and trying to get out and they ran towards his room.

The witness said that herself, his mother, one of the co-wives and her siblings all packed themselves inside one room and while there, they heard a gunshot coming from her father’s room and her mother said that they had killed her father. She

gave evidence that the people came back to the room they were in and started asking for money and that they took her to her mother’s room and she showed them money and a box of a new handset which they took. She testified that by this time her brother, Fahad, who was sleeping on the bed, woke up and attempted to run away and the first Respondent, whom she was able to identify because of the torch lights they had on, held her brother and slapped him. She said that she also took them to the rooms of the other wives which they searched and took away monies from and that the second Respondent, whom she was also able to identify because of the torch lights, pointed a gun at her, threatening to shoot her if she failed to show them where money was.

She gave evidence that they then took her to her father’s room still asking for money and that she called out for her father, but there was no reply and that from there they took her and moved towards her uncle’s, Alhaji Rabi’u’s, room, but on the way they tore her dress and wrapper and started assaulting her and that when her mother tried to intervene, the first Respondent slapped her

mother. She said that she got a wrapper from her mother’s room to cover her body and was advised by one of them to hide because if they came back, they might kill her and that she hid in the room of one of the co-wives and that thereafter the third Respondent came back with his gun and torch light and sexually assaulted her. She said that later she heard crying and went and saw the body of her father in a pool of blood and that her father’s room had two doors, one facing inside the house and the other leading outside and that his body was by the door leading outside and there was an injury in his abdomen.

She testified that her uncle took the body of her father to the hospital where her father was confirmed dead and that the next day the Police came and investigated the house and that at the SCID she was shown some photographs and from which she was able to identify the three Respondents and the Police later paraded some people before her and out of which she identified and picked out the three Respondents. Under cross examination, the witness reiterated that it was the first Respondent that slapped her brother and that it was the second

Respondent that pointed a gun at her forehead and that they were both wearing black dresses and she stated that she did not witness the shooting of her father, but heard the sound of the gun shot and that she picked out the three Respondents in an identification parade.

The second prosecution witness was a son of the deceased, Fahad Muhammad, and he testified that in the night of the 19th of June, 2007, he was in the room sleeping when three robbers entered the room, all holding guns and torch lights, with his sister, the first prosecution witness, and that they told his sister to give them money or they would kill her and that her sister brought out money and gave them. He stated that when he attempted to go out of the room, one of the robbers stopped him and told him to lie down and that he was able recognize the robber as the first Respondent because he had once come to their house with a letter which was left with him to give to his father. He gave evidence that the first Respondent slapped him and told him to continue to lie down when he realized that he was looking at him and that they later left the room with his sister after they finished searching

for money.

The witness testified that the robbers later came back to the room with his mother and they searched the room again looking for more money and that they found none and they left him and his mother in the room and that later his senior brother came and told them that the robbers had killed their father. He stated that they went to his father’s side of the house and saw him in pool of his blood and his father was taken to the hospital where he was confirmed dead and that the Police came and he told them that he recognized one of the robbers because the robber once came to their house with a letter for his father. He said that he later when to the Police Station and was given some photographs and he identified the first Respondent and that some persons were later paraded before him and he picked out the first Respondent. Under cross examination, the witness stated that he did not witness the shooting of his father.

The third prosecution witness was Kabiru Muhammad Auwal, another son of the deceased and he stated that his house and the house of his father shared a common main gate and that while his house was to the south of the compound

facing north, his father’s house was on the north facing south. He said in the night of 19th of June, 2007, he was sleeping when he heard a gunshot and the generator going off and that he later heard another gunshot and some noise and after a while some people entered his house, all wearing black dresses and carrying guns and torch lights. He testified that they ordered him to lie down and pointed a gun at him and requested for money and he showed them where the money was and he brought it out and gave it to them and that they complained that it was not enough and they threatened to kill him. He stated that they searched the room and thereafter left and that he heard crying from the main house and he went there and saw the deceased in a pool of blood and he went to report the matter at the Police Station and that the first and second prosecution witnesses were his sister and brother. Under cross examination, the witness said he did not see when the deceased was killed.

The fourth prosecution witness was Hussain Ibrahim and he testified that he was a security guard in the house of the deceased and that in the night of the 19th of June, 2007, he was

on duty and he saw some people come into the house and one of them put off the generator and that he got up to accost them and they shot him on his right side and he fell down. Under cross examination, the witness stated that he did not know what took place inside the house and he was later taken to the hospital.

The fifth prosecution witness was the Investigating Police Officer, Inspector Ibrahim Ado, and he testified that he was on duty at the SCID when the case involving the Respondents was transferred from the Minjibir Division and that he and his team visited the scene of the crime and that a locally made pistol gun and some pieces of torn clothes were recovered and that one of the victims was taken to Murtala Muhammad Hospital. He stated about fifteen people were subsequently arrested and that he recorded the statements of the victims and he showed the victims the photographs of different persons and that they identified the three Respondents and that he conducted an identification parade wherein he mixed the three Respondents with other persons and that the victims, the first and second prosecution witnesses, picked out the three Respondents as

those that attacked their house.

The witness tendered the medical report and photographs of the deceased and gave evidence that he recorded the statements of the three Respondents and that the first Respondent made an additional statement which was recorded by one of his colleagues. The records show that when he sought to tender the statements, Counsel to the Respondents objected on the ground of involuntariness and Counsel to the Appellant withdrew the statements. Counsel to the Respondents declined to cross examine the witness.

The first Respondent testified as the first defence witness and he stated that he did not know why he was in Court and that he bought a phone from one Shafi’u and was told that it was stolen and so he was arrested and taken to Jaba Sharia Court. The second Respondent was the second defence witness and he testified that he was arrested on the 23rd of August, 2007 by the Police while escorting his wife to the hospital and that he did not know the other two Respondents and that he only got to meet them at the Gidan Murtala Cell. Under cross examination, he said that he was arrested at Wase and that his wife had left

before he was arrested. The third Respondent was the third defence witness and he gave evidence that he did not know anything about the offences and that he was arrested at River Side at Kwata on 25th of August, 2007 along with nine other people and they were taken to SCID. He stated that he did not know the other Respondents and he denied sexually assaulting the first prosecution witness.

In deliberating on the evidence led by the parties while considering the count of armed robbery, the lower Court reiterated the ingredients of the offence of armed robbery and stated thus:
“From the above facts it is clear that there was a robbery as per the evidence of PW1, PW2 and PW3 and the robbery was armed because the accused were holding guns as per the prosecution’s evidence and the three accused were the ones who did the robbery because PW1 was able to identify all the three accused persons and PW2 also identified the 1st accused person as the one who slapped him during the identification parade at SCID.
All these facts were neither challenged or countered even under cross examination. The three accused could not give any evidence in

defence but only made a blanket denial of committing the offence, and were not able to call any other witness in their defence.
Therefore, in the absence of defence I am satisfied that the prosecution has proved all the ingredients of the offence of robbery punishable under Section 298(c) of the Penal Code.”

These findings of the lower Court have not been appealed against by the Respondents either by way of a cross appeal or by the filing of a separate appeal. It is settled law that a party against whom findings of fact were made has a duty to appeal against those findings otherwise he shall be deemed to have accepted the adverse findings or specific judgments on the issue and such findings bind the parties and the appellate Court and cannot be revisited – Daniel Vs Federal Republic of Nigeria (2015) 13 NWLR (Pt 1475) 119, Offodile Vs Offodile (2019) LPELR 47851(SC), Jato Vs State (2019) LPELR 49310(SC). Therefore, the entire arguments of Counsel to the Respondents in his brief of arguments on the improper identification of the Respondents by the first and second prosecution witnesses as the persons who perpetuated the offences as well as

on the irregularity of the identification parade conducted by the Police and on the presence of defence of alibi are thus baseless.

The question in this appeal is – in the view of the unchallenged findings of the lower Court on the count of armed robbery and in the light of the evidence of the prosecution witnesses which the lower Court accepted as cogent and credible in making those findings, can it be said, as found by the lower Court, that the Appellant did not lead credible evidence to prove that the Respondents caused the death of the deceased and that they did so with knowledge that death was the probable consequence of their actions?

forward by the prosecution in proving its case against an accused person, a trial Court must consider whether there was a direct and positive confessional statement from the accused person admitting the commission of the offence and/or eye witness account of the commission of the offence by the accused person and/or circumstantial evidence from which the guilt of the accused person can be inferred. It is where there is no credible and cogent evidence establishing any of these three modes of proof that it will be said that the prosecution led no evidence linking the accused person to the commission of the offence.

the Respondents could be inferred. It is obvious that the lower Court did not properly evaluate the entire evidence led before it in making its findings on the count of culpable homicide. The Appellant thus made out a case of improper evaluation and/or non-evaluation of evidence on the part of the lower Court.

is oral evidence which involves merely an admission by the adversary, or there is an unchallenged piece of evidence, an appellate Court should consider itself to be in as good a position as the trial Court, in so far as the evaluation of such evidence is concerned – Ebba Vs Ogodo (1984) 1 SCNLR 372, Ogundepo Vs Olumesan (2011) 18 NWLR (Pt 1278) 54.

The task before this Court in the re-evaluation of evidence is to discover if indeed the Appellant led credible circumstantial evidence on

record linking the Respondents to the shooting of the deceased which was ignored and overlooked by the lower Court. 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.

There was evidence in the testimony of the prosecution witnesses that when the Respondents and their gang gained entrance into the house of the deceased they were armed with guns, they specifically asked for the deceased and requested to be shown his room. There was evidence that despite the best efforts of the family members to mislead the Respondents as to the location of the deceased in the house, the Respondents located the room of the deceased, left the other people in the house and ran there when they heard the deceased trying to escape through the back door of his room and the people in the house thereafter heard a gunshot from the room of the deceased. The Respondents returned thereafter to the other members of the household and they ransack the house and took away valuables.

penetrating injury of the left side of his abdomen. In other words, there was evidence that the Respondents knew the deceased and that their going to his house that night was not random. There was evidence that the deceased was hale and hearty before the arrival of the Respondents and even after their arrival and it was after the deceased was chased down by the Respondents, while armed with guns, and a gunshot heard, that the deceased was found dead in a pool of his blood with a wound, synonymous with a gunshot injury, on his abdomen.

an explanation relating to how the deceased met his or her death and in the absence of such an explanation, surely and certainly, a trial Court will be perfectly justified in drawing the necessary inference that the defendant must have killed the deceased – Iliyasu Vs State (2015) 11 NWLR (Pt 1469) 26, Olude Vs State (2018) LPELR 44070 (SC), Esseyin Vs State (2018) LPELR 44476(SC), Amos Vs State (2018) LPELR 44694(SC). The acts establishing the doctrine of “last seen” constitute substantial circumstantial evidence. The Respondents offered no explanation for the death of the deceased.

than one person are accused of joint commission of a crime, it is enough to prove that all participated in the crime and what each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence –Asimi Vs State (2016) 12 NWLR (Pt 1527) 414, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Oladejo Vs State (2018) 11 NWLR (Pt 1630) 238, Balogun Vs State (2018) 13 NWLR (1636) 321.
In Alarape Vs The State (2010) FWLR (Pt. 41) 1872 at 1898 – 1894 the Supreme Court, per Iguh JSC said of the principle thus:-
“The point that needs to be emphasized in these sorts of cases is that once it is firmly established that two or more persons formed the necessary common intention to prosecute an unlawful purpose, and an offence of such a nature of such purpose is committed, each of them is deemed to have committed the offence. In such circumstances, the Court, once the execution of the common intention or design is established, would be right in asserting that it does not matter on such facts

which of the accused person does what. This is for the simple reason that under such circumstances a fatal blow, though given by one of the accused persons involved, is deemed in the eyes of the law to have been given by the rest of his co-accused person. The person actually delivering the blow is said to be no more than the hand by which the others all strike.”
This principle clearly enveloped all the Respondents in the commission of the act that caused the death of the deceased. The Appellant thus led sufficient cogent evidence linking the Respondents with the death of the deceased.

The third ingredient of the offence of culpable homicide is whether the Respondents caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. It is settled law that in order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was

brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused – Iden Vs State (1994) 8 NWLR (Pt 365) 719, Isah Vs State (2017) LPELR 43472(SC), Peter Vs State (2018) LPELR 44357 (SC), Richard Vs State (2018) LPELR 45157(SC). Thus, in Owhoruke Vs Commissioner of Police (2015) 15 NWLR (Pt 1483) 557, the Supreme Court held a man who stabs another on the neck region with a bottle is deemed to have intended to kill or cause grievous bodily harm.
In the instant case, the shooting of the deceased by the Respondents with a gun, a lethal weapon, on his abdomen, a fragile part of the body, could only have been intended to cause the deceased a grievous bodily harm. It is the law that a person intends the natural consequences of his action and if there was an intention to cause grievous bodily harm and death results, then the defendant must be held culpable for the offence of murder – Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548, Afosi Vs State (2013) 13 NWLR (Pt 1371) 329.
There was thus cogent, credible and sufficient evidence led by the

Appellant before the lower Court to prove beyond reasonable doubt that the Respondents caused the death of the deceased intentionally; with knowledge that death or grievous bodily harm was the probable consequence of his act. The Appellant proved the third ingredient of the offence of culpable homicide against the Respondents.

The Court finds and holds that the Appellant presented credible evidence to establish the offence of culpable homicide punishable with death against the Respondents beyond reasonable doubt. The Court finds merit in the appeal and it succeeds. The judgment of the High Court of Kano State delivered in Charge No K/14C/2012 by Honorable Justice Lawan Wada on the 30th of March, 2017 discharging and acquitting the Respondents of the offence of culpable homicide punishable with death is hereby set aside. The Court finds the Respondents guilty of the charge of culpable homicide punishable with death contrary to the provisions of Section 221 of the Penal Code Law of Kano State and they are convicted accordingly.

The punishment for the offence of culpable homicide under Section 221 of the Penal Code Law is fixed and it is a death penalty

and the Court has no discretion to reduce it to a term of imprisonment – Amoshima Vs The State (2011) 6 SCNJ 245, State Vs John (2013) 12 NWLR (Pt 1368) 337, Musa Vs State (2014) LPELR 22912(CA), Bassey Vs The State (2014) LPELR 24067(CA), Olasehinde Vs State (2016) LPELR 41337(CA). It is in this wise that this Court hereby sentences the Respondents to death by hanging. This shall be the orders of the Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading Judgment of my learned brother Abiru JCA just delivered. The trial Court had discharged and acquitted the Respondents for the offences of conspiracy to commit culpable homicide punishable with death and of culpable homicide punishable with death. As the prosecution had proved beyond reasonable doubt, the offence of culpable homicide punishable with death against the Respondents, the trial Court was wrong when it failed to find them guilty in that respect. I therefore agree with the reasoning and conclusion of my learned brother in reversing that decision and setting it aside. I find the Respondents guilty of culpable homicide punishable with death. I convict them and pass

sentence of death by hanging against them.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead judgment delivered by learned brother, HABEEB ADEWALE OLUMIYIWA ABIRU, JCA and I agree with his reasoning and conclusion. There is abundant evidence on record adduced by the Appellant which the lower Court ignored or failed to properly evaluate, linking the death of the deceased to the Respondent. With the copies of evidence on record, the lower Court was thus in error to have discharged and acquitted the Respondents of the offence of culpable homicide punishable with death. There is therefore merit in this appeal and I adopt the detailed reasons in the lead judgment in allowing the appeal and I abide the consequential orders therein.

Appearances:

Ibrahim Mukhtar, A. G. Kano State with him, S. A. Ma’aji, DPP, Aminu Ado Bello, SC and Asma’u Sabi’u Ado, SC, MoJ, Kano For Appellant(s)

Chidi Ndumnego For Respondent(s)