GALADIMA v. STATE (2020)

GALADIMA v. STATE

(2020)LCN/14595(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Monday, September 07, 2020

CA/S/10C/2019

RATIO

PLEADINGS: CIRCUMSTANTIAL EVIDENCE

It has been settled by this Court and the Supreme Court in a long line of cases that where direct evidence of eye witnesses is not available, the Court may infer from the facts proved the existence of other facts that may logically tend to prove the guilt of an accused person. In drawing an inference of guilt of an accused person from circumstantial evidence great care must be taken. Accordingly, before circumstantial evidence can form the basis for conviction the circumstances must clearly and irresistable suggest that the accused was the person who committed the offence and that no one else could have been the offender. See for example, FATOYINBO V. ATT. GEN. WESTERN NIGERIA (1966) WNLR 4, UDEDI BIA V. STATE (1976) 11 SC 133, ADIE V. STATE (1980) 1 – 2 SC 116 and OMOGODO V. STATE (1981) 5 SC 5. It is axiomatic and also well settled that in a criminal trial, the burden is always on the prosecution to prove the guilt of the accused person beyond all reasonable doubt. Therefore, generally, there is no duty on the accused to prove his innocence. Circumstances may, however, arise where some explanation may be required from the accused person such as where apparently and manifestly damning facts are established against him. In the instant appeal the facts established in evidence by the prosecution clearly proved a prima facie case requiring the Appellant to at least explain all what he did with the deceased on the fateful day he was last seen with him. See IGHO V. STATE (1978) 3 SC 87. The offence of culpable homicide is provable by circumstantial evidence notwithstanding that neither the body nor any trace of the body of the deceased had been found, not even when the accused made no confession In my view, and I have no reason to disagree with the learned trial judge, in the instant appeal, the circumstantial evidence adduced by the prosecution proved beyond doubt that it was the Appellant who killed the deceased. Per ALI ABUBAKAR BABANDI GUMEL, J.C.A.

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

ATIKU ABUBAKAR GALADIMA APPELANT(S)

And

THE STATE RESPONDENT(S)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Sokoto State in Charge Number SS/02C/2018 delivered on 24th July, 2018, per Duwale, J.

The Appellant as the accused, was arraigned before the Sokoto State High Court (the lower Court), on a single count charge to wit:-
“That you Abubakar Galadima of Gidadawa Area, Sokoto on or about 3rd June, 2012 at about 0900hrs in the bush at the outskirt of Dundaye Village of Wamakko Local Government Area of Sokoto State within the Sokoto judicial division did commit the offence of Culpable Homicide Punishable with death in that you caused the death of one Barrister Surajo Abubakar (now deceased) after you inflicted several deep matchet cuts on the head of the said Barrister Surajo and finally slaughter him to death, with the knowledge that death will be the probable consequence of your act and thereby committed an offence punishable under Section 221 (b) of the Penal Code.”

Upon his arraignment, the Appellant pleaded not guilty and the case proceeded to trial. At the trial, five witnesses (PW1 to PW5) testified for

the prosecution. Two Exhibits were also tendered and admitted in evidence on behalf of the prosecution to prove the lone charge against him. At the end of the case of the prosecution, the Appellant took to the witness box to prove his innocence. Thereafter, the lower Court ordered respective learned counsel to the parties to file and exchange written addresses. Learned counsel obliged accordingly. The written addresses were subsequently adopted and relied upon by respective learned counsel and the matter was adjourned for judgment.

In its judgment, the lower Court found that the prosecution had proved the guilt of the Appellant beyond reasonable doubt and proceeded to convict him as charged. And upon being found guilty was accordingly sentenced to death by hanging.

The Appellant was dissatisfied with the judgment. He appealed to this Court in a notice of appeal dated and filed on 9th August, 2018. It contains the following ten grounds of appeal viz:-
“Ground one
The decision of the Court below is unreasonable, unwarranted and cannot be supported having regards to the evidence adduced at the trial.
Ground two
The Court below

erred in law and which occasioned a miscarriage of justice when it infracted on the Constitutional Right of the Appellant to fair hearing and trial in Public as enshrined under Section 36 (1) and 36(3) of the Constitution of the Federal Republic of Nigeria 1999 when it made use of written addresses of counsel without same be read in the open Court.
a. Whereas the Court below ordered for written addresses to be filed in a criminal case.
b. Whereas the written address filed on behalf of the Appellant were merely adopted before the Court below without same being read in the open Court.
c. Whereas under Section 36(3) of the Constitution of the Federal Republic of Nigeria 1999, the Appellant is entitled to be tried in public.
d. Whereas under Section 36 (3) of the Constitution of the Federal Republic of Nigeria 1999, all proceedings of the Court below ought to be in public.
e. Whereas the Appellant was denied public trial owing to the adoption of the written addresses filed in a criminal matter without more.
f. Whereas the Appellant is entitled to the right of fair hearing.
g. Whereas the Court below glossed over all these

important considerations.
GROUND THREE
The Court below erred in law and which occasioned a miscarriage of justice when it relied on the conflicting evidence of PW’s 1, 2, 3 & 4 respectively as providing the necessary corroboration for Exhibits A & A1.
PARTICULARS OF ERRORS IN LAW
a. Whereas PW’s 1, 2, 3 & 4 were not eye witnesses to the alleged crime.
b. Whereas the evidence of PW’s 1,2,3 & 4 respectively were manifestly contradictory in nature and substance.
c. Whereas the evidence of PW’s 1,2,3 & 4 did not corroborate Exhibits A & A1.
d. Whereas the contradictory evidence of PW’s 1,2,3 & 4 were largely unexplained by the prosecution.
e. Whereas the contradictory evidence of PW’s 1, 2, 3. & 4 cannot be used as corroborative evidence for Exhibits A & A1.
f. Whereas no valid conviction can be founded on contradictory evidence of prosecution witnesses.
g. Whereas in the face of contradictory evidence which is substantial in nature, proof beyond reasonable doubt cannot be said to arise.
h. Whereas in the face of contradictory evidence of PW’s 1, 2, 3 & 4,

benefit of doubt ought to inure in favour of the Appellant.
i. Whereas the Court below glossed over all these important considerations.
GROUND FOUR
The Court below erred in law and which occasioned a miscarriage of justice when in convicting and sentence the Appellant to Death for the offence contrary to Section 221 (b) of the Penal Code, it relied on the evidence of PW’s 1, 2, 3 & 4.
PARTICULARS OF ERRORS IN LAW
a. Whereas PW’s 1, 2, 3 & 4 were not eye witnesses to the alleged crime.
b. whereas PW’s 1, 2, 3 & 4 did not link the Appellant as the person who actually killed the deceased.
c. Whereas PW’s 1, 2, 3 & 4 did not know what was the actual cause of the death of the deceased.
d. Whereas the cause of the death of the deceased from the evidence of PW’s 1, 2, 3 & 4 was basically hearsay.
e. Whereas the evidence of PW’s 1, 2, 3 & 4 did not suffice to make a finding of guilt of the Appellant.
f. Whereas the evidence of PW’s 1, 2, 3 & 4 rested on a weak pillar which cannot support the probative weight which the Court below attached to their evidence.
g. Whereas the

Court below glossed over all these important considerations.
GROUND FIVE
The Court below erred in law and which occasioned a miscarriage of justice when notwithstanding the denial of the Appellant of making Exhibits A & A1, the Court below refused and or neglected to properly assess in its judgment whether Exhibits A & A1 were in infact made by the Appellant having regards to the Appellant’s denial.
PARTICULARS OF ERRORS IN LAW
a. Whereas the Appellant denied not being the maker of Exhibits A & A1 respectively.
b. Whereas no assessment was made by the Court below as to whether the Appellant actually was the maker of Exhibits A & AI.
c, Whereas the probative value of Exhibits A & A1 in the face of the denial of the Appellant was not considered adequately by the Court below.
d. Whereas the Court below abdicated its duties of assessment of whether the Appellant was actually the maker of Exhibits A & Ai and the reasons for so holding.
e. Whereas the Court below glossed over all these important considerations.
GROUND SIX
The Court below erred in law and which occasioned a miscarriage of

justice when it referred to the nature of injuries sustained by the deceased and used same as one of the basis for coming to the conclusion that the Appellant inflicted same on the deceased and thus caused and intended killing the deceased in proof of the 2nd & 3rd ingredients of the offence of Culpable Homicide punishable with death.
PARTICULARS OF ERRORS IN LAW
a. Whereas there were no pictures of the deceased tendered in evidence depicting the nature of the injuries sustained by the deceased.
b. Whereas there was no medical report tendered in evidence depicting the nature of injuries sustained by the deceased and the cause of death.
c. Whereas no weapon allegedly used in the commission of the alleged acts was tendered in evidence at the Court below.
d. Whereas none of the prosecution witnesses described with the certainty required of the criminal law, the type and or nature of the injuries inflicted on the deceased to warrant the Court’s below findings.
e. Whereas there was no concrete evidence before the Court below upon which the Court below would have drawn a conclusion one way or the other of the exact nature of

the injuries inflicted on the deceased.
f. Whereas there was no proof with the certainty of criminal law that it was the Appellant that caused the death of the deceased person.
g. Whereas the Court below glossed over all these important considerations.
GROUND SEVEN
The Court below erred in law and which occasioned a miscarriage of justice when it held that there was the death of a Human being in proof of the 1st ingredient of the offence of Culpable Homicide punishable with death contrary to Section 221(b) of the Penal code
PARTICULARS OF ERRORS IN LAW
a. Whereas there was no medical evidence showing that the alleged deceased died.
b. Whereas there was no evidence from all the prosecution witnesses that they actually recognize the corpse they saw as that of the deceased person.
c. Whereas all the evidence from all the prosecution witnesses as it relates to the identification of the corpse they saw as the corpse of the deceased were not credible and were damaging hearsay which ought not to be utilized by the Court below.
d. Whereas the Court below glossed over all these important considerations.
GROUND EIGHT<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Court below erred in law, breached the Constitutional Right of fair Hearing of the Appellant as enshrined Under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, and which occasioned a miscarriage of justice when it failed to consider the parole evidence of the Appellant given in his defence in the evaluation of evidence vis a vis Exhibits A & A1 and other pieces of evidence at the Court below.
PARTICULARS OF ERRORS IN LAW
a. Whereas the Appellant gave evidence as DWI in his defence before the Court below.
b. Whereas the Appellant denied making Exhibits A & A1 respectively.
c. Whereas there was no evaluation of the parole evidence of the Appellant as DWI vis a vis Exhibits A & A1.
d. Whereas there was no examination of the versions of events presented by the Appellant in his defence before the Court below.
e. Whereas the Appellant is entitled to the right to fair hearing and unbiased consideration of his evidence in defence.
f. Whereas the Court below glossed over all these important considerations.
GROUND NINE
The Court below erred in law and which occasioned a miscarriage

of justice when it relied on circumstantial evidence that was not based on credible evidence to convict and sentence the Appellant to death for the offence contrary to Section 221(b) of the Penal Code.
PARTICULARS OF ERRORS IN LAW
a. Whereas there was no credible circumstantial evidence before the Court below to establish the guilt of the Appellant.
b. Whereas there were no proven facts as required by law from which the Court below could have inferred the guilt of the Appellant.
c. Whereas there were no cogent, compelling, positive and unequivocal circumstantial evidence to the fact that the appellant was the person who killed the deceased.
d. Whereas the possibility of other persons killing the deceased existed from the evidence on records before the Court below.
e. Whereas the Court below glossed over all these important considerations.
GROUND TEN
The Court below erred in law and which occasioned a miscarriage of justice when it held that the death of the deceased was caused by the slaughtering of the deceased by the Appellant.
PARTICULARS OF ERRORS IN LAW
a. Whereas there were no eye witness account that it

was the Appellant that caused the death of the deceased by slaughtering.
b. Whereas there was no proof that the deceased died as a result of the acts of slaughtering.
c. Whereas there was no, medical report that the deceased died as a result of slaughtering and not from the alleged acts of injuries sustained in other parts of his body.
d. Whereas the Court below acted on hearsay evidence as to the cause of death.
e. Whereas the Court below glossed over all these important considerations”.

To argue the appeal, learned counsel Mr. Abdullahi on behalf of the Appellant filed a brief of argument on 14th January, 2020 and same was deemed properly filed and served on 18th March, 2020. On behalf of the Respondent, learned counsel Mr. Almustapha Abubakar filed the Respondent’s brief on 17th April, 2020.

From the 10 grounds of appeal, learned counsel to the Appellant formulated and argued the following 5 issues for determination in this appeal. They are:-
“1. Did the Court below infringe on the Appellant’s Constitutional right to fair hearing and trial in public when it made use of written

addresses of counsel without same be read in the open Court? (This is decoded from ground 2 of the grounds of appeal)
2. Was the Court below right in law in holding that the evidence of PW’s 1, 2, 3 & 4 provided the necessary corroborative evidence to Exhibits A & A1 respectively and relying on the said evidence to justify the conviction of the Appellant for the offence contrary to Section 221 (b) of the Penal code? (This is decoded from grounds 3 & 4 of the grounds of appeal)
3. Was there a proper evaluation of both oral and documentary evidence by the Court below before placing reliance, convicting and sentencing the Appellant on the basis of exhibits A & A1 respectively? (This is decoded from grounds 5 & 8 of the grounds of appeal).
4. Was there the proof of essential ingredient of the offence of Culpable Homicide punishable with death contrary to Section 221 (b) of the Penal Code? (This is decoded from grounds 6, 7 & 10 of the grounds of appeal),
5. Was the overall decision of the Court below correct in law? (This is decoded from grounds 1 & 9 of the grounds of appeal)”

In paragraph 2.1 at page 2

of the Respondent’s brief of argument, learned counsel adopted and argued the above said 5 issues formulated on behalf of the Appellant.

Before I proceeded with the resolution of the issues for determination in this appeal, I wish to highlight and underscore some of the facts of the matter. According to some of the evidence before the trial Court, the Appellant was a family member and close friend of the deceased. The deceased had once told his wife (PW1) that the Appellant would be coming to pick him up to go and conclude a land purchase transaction. And on 3rd June, 2012, in pursuance of that purpose, the Appellant came to the home of the deceased on his motorcycle at about 7.00am. The deceased rode on the motorcycle and they both went out. PW1 too went out to attend a naming ceremony. But before that she had prepared and kept a meal for the deceased.

It was put in evidence that when PW1 returned from the naming ceremony she met the food she prepared and kept for the deceased as she left it. It was untouched. PW1 called PW2, another friend of the deceased, to find out if he knew the whereabout of the deceased but got no more information than

that the deceased was seen in town on a motorcycle with the Appellant. Further to this and after 2 days without seeing the deceased, she reported the matter to his family members.

On a sad note, and after some days since he left home, a decomposed body was found in a nearby village and which was later confirmed to be that of the deceased. Meanwhile, the Appellant had fled and was not seen until many years later. At the trial, the prosecution tried to prove that the Appellant ran away to a place outside the state and stayed for 4 years in communicado. The prosecution also sought to convince the trial Court that the Appellant sneaked back into Sokoto believing the death of the deceased was no longer a topical issue.

In arguing the first issue for determination, learned counsel to the Appellant, Mr. Abdullahi focussed on the provisions of Section 36 (1) and Section 36 (3) of the 1999 Constitution, as amended to explain that the Appellant is not only entitled to a fair trial within a reasonable time but equally to a trial in public. Against the background of this explanation, Mr. Abdullahi, of counsel added that these are constitutionally guaranteed

inalienable rights that cannot be waived. Learned counsel then referred to and quoted very extensively from the decisions of this Court in UGOJI & ORS. V. IWUAGWU (2013) LPELR – 20810 (CA) 26 – 27 per Owuade, JCA, and MIKAILU V. STATE (2001) 8 NWLR (PT. 715) 469 per Abdullahi, PCA.

In his attempt to be more specific, learned counsel Mr. Abdullahi, referred to pages 61 to 62 of the record of appeal and pointed out that, the parties merely adopted their respective written addresses without more. According to Mr. Abdullahi, of counsel, no oral arguments or submissions were taken in relation to the adopted written addresses and no formal reading of the addresses was allowed by the lower Court. This scenario, according to counsel Mr. Abdullahi, is a violation of the right of the Appellant to a public trial as provided under Section 36 (3) of the Constitution, as amended. While also relying on the decision of the Supreme Court in OYEKAN V. AKIRINWA (1996) 7 NWLR (PT. 459) 128, learned counsel submitted that the failure of the lower Court to comply with the constitutional requirement for a public trial vitiated the entire proceedings. He urged on the

Court to so hold and resolve this issue in favour of the Appellant.

In his response, learned counsel to the Respondent, Mr. Abubakar, began by focussing on the entire proceedings during the trial of the appellant and explained that everything was done in public and fully open to the public.

With respect to the main contention on behalf of the Appellant, learned counsel Mr. Abubakar pointed out that the learned trial Judge allowed respective learned counsel to adopt their written addresses. He added that not only did counsel adopt addresses, Counsel to the accused took the opportunity to make some adumbrations with regards to the evidence of PW1 and PW2.

In his own explanation Mr. Abubakar, of counsel remarked that the filing and adopting of written addresses by counsel during trials is aimed at avoiding delays and to save time in the administration of justice. To demand that each counsel should appear in Court to read out in full and adopt their filed and exchanged written addresses, would defeat the whole purpose. He referred to and relied on the case of GWAR V. ADOLE (2003) NWLR (PT. 808) 516. Also according to Mr. Abubakar, of counsel, the

adoption of written addresses in open Court makes it public and to the extent that the total non – adoption of the filed and exchanged written addresses would vitiate the proceedings in a trial. Mr. Abubakar, of counsel also suggested that the adoption of a written address is an open affirmation of the summing up of facts and law of party or to the Court and adversary, as was held in the case of OBODO V. OLOMU (1987) NWLR (PT. 59) 111?? (This could not be a proper citation). Also, in distinguishing the facts and circumstances in this appeal and the decision in UGOJI & ORS V. IWUAGWU (supra), learned counsel observed and pointed out that while in that case there was no adoption at all, in the instant appeal, even as conceded by counsel to the Appellant, there was a formal adoption of written addresses in this matter. He urged on this Court to so hold and resolve this issue against the Appellant.

In resolving this issue, the best starting point is to focus fully on the relevant proceedings of the lower Court as captured and reported at pages 61 to 62 of the printed record of appeal. It is hereby reproduced thus:
“Resumed 6/6/2018<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Yakubu Sani: Principle state counsel with D. T. Akinriyo for the state.
Ademola Olukayode: for the accused person.
Sani: The accused person is in Court and speak Hausa.
Labaran Registrar: Affirmed to translate from Hausa to English and vice versa.
Sani: It is a case of culpable homicide with death contrary to Section 221 of the Penal Code. The case is for the adoption of written address. We are ready.
Ademola: That is the position. We filed our written address on 21/5/2018. We adopt the written address as our argument. I urge the Court to discharge and acquit the accused person.
Sani: We filed our address on 5/6/2018. We adopt the address as our final address. I urge the Court to convict the accused person as charge.
Ademola: I wish to draw the attention of the Court to the address of the prosecution at page 2 where he quoted PW1 and 2. I urge the Court to disregard the evidence of PW 1 and 2 as started herein as they are not true. We are bound by the Court record. The doctrine will not apply in this case.
Court: The case is adjourned to 3/7/2018 for judgment. The accused person be further remanded in prison

custody.
(SGD)
Hon. Justice Bello Duwale
Judge
6/6/2018”

The record of appeal and proceedings of a Court are deemed to be correct and are fully binding on the Court and the parties, until the contrary is shown after the invocation of the appropriate procedure in that behalf.

A very calm and careful reading of the above proceedings of the lower Court shows, without any doubt that respective learned counsel were afforded the full opportunity of a fair hearing and to present the case of the parties they represented. There does not appear to be anything in the proceedings of the lower Court on 6th June, 2018, as captured at pages 61 to 62 (supra) that can change its character and content as to deprive it of being a trial in public as contemplated and envisaged by Section 36 (3) of the Constitution, as amended.
And after reading the judgment of this Court in UGOJI & ORS V. IWUAGWU (supra), I fully agree with learned counsel to the Respondent that because there was no formal adoption of the written addresses of the parties at all, that decision is wholly and totally inapplicable to the facts and circumstances in the instant

appeal. The decision in MIKAILU V. STATE (supra) appeared to have overlooked the modern trend that when Counsel, in open Court, adopt and rely on either filed and exchanged written addresses or briefs of argument, such exercise of adopting and relying on such processes also envisaged and is taken to mean that the same processes were read in Court. In the case of MIKAILU V. THE STATE (supra), this Court allowed the appeal because the written addresses were not read or adopted in the open Court at all, therefore to the extent that the written addresses in the instant appeal were adopted in open Court that decision must remain totally inapplicable. The decision in MIKAILU V. THE STATE cannot and should not be elasticised to mean that after a formal adoption of written addresses there would be an additional mandatory requirement that they should also be read. It must also be pointed out that in the instant appeal, learned counsel to the Appellant as the accused person duly availed himself of the full opportunity the circumstances afforded him to make full oral submissions on the recorded evidence of some of the prosecution witnesses at the trial and same was fully

recorded by the lower Court. The record also shows that learned counsel did not ask for more.
Therefore, against all the foregoing, and a total overview of the entire trial of the Appellant, I am unable to agree with learned counsel Mr. Abdullahi for the Appellant that there is anything strong and sufficient enough to deprive it of being a public trial as provided and guaranteed under Section 36 (3). This issue is resolved against the Appellant.

With respect to the 2nd issue for determination in this appeal, learned counsel Mr. Abdullahi began by a remark suggesting that in convicting and sentencing the Appellant, the lower Court heavily relied on the oral evidence of PW1 to PW4 because it believed that they support and corroborate the extra- judicial statements of the Appellant in Exhibits A and A1. Against this background, Mr. Abdullahi, of counsel maintained the contrary that there was nothing in the evidence of PW1, PW2, PW3 and PW4 that was credible enough to warrant being corroborative of Exhibits A and A1.

While relying on what he believed to be the most crucial evidence of PW1 at the trial as set out at lines 4 to 8 at page 47 of the

record, in the course of her cross-examination, learned counsel typify it as mere hearsay. He referred to the definition of hearsay evidence under Section 37 of the Evidence Act, 2011 and also Section 38 that rendered it inadmissible. Learned counsel also referred to the evidence of PW2 at page 49 lines 10 – 11 when he told the Court that he did not see the body of the deceased and did not know how he died. This part of the evidence of PW2 was during his cross-examination. Learned counsel argued and maintained that this too was hearsay evidence and therefore inadmissible. While further relying on the cross-examination of PW3 and PW4 and quoting from the relevant pages of the record of appeal, Mr. Abdullahi, of counsel pointed out what he believed were the weaknesses and poor quality aspects of the oral testimony of the 4 witnesses. He also characterised and typified them as lacking in credibility and inadmissible.

In a further effort, learned counsel to the Appellant took on the evidence of PW5 at the trial. He highlighted what was recorded in lines 6 to 18 at page 16 and suggested that PW5 contradicted the evidence of some of the earlier witnesses

as well as being hearsay also. According to learned counsel the evidence of PW5 is at variance with that of PW1 to PW4 and therefore unreliable for not being the evidence of a truthful witness. Against this suggestion, Mr. Abdullahi, of counsel argued and submitted that the evidence of all the prosecution witnesses did not corroborate the extrajudicial statement of the Appellant in Exhibits A and A1 that his acts caused the death of the deceased. In another argument, learned counsel referred to an aspect of the evidence of PW3 that the body of the deceased was “stoned” and sought to find out why medical evidence was not adduced or called to explain the injuries on the body of the deceased and to ascertain the real cause of his death. According to learned counsel medical evidence could have established if the death of the deceased was attributable to one or more of the injuries seen on the body; when was the actual date of death and so on. In the opinion of learned counsel, the entirety of the evidence at the trial left so many unanswered questions and the lower Court merely speculated and worked on unfounded assumptions. He then maintained that in

law, speculation has never been the functions of a Court of law. Upon this, he submitted that a Court is only entitled to rely on the evidence before it and not on speculation. He relied on the decisions in SEISMOGRAPH SERVICES NIG. LTD V. OGBENI (1976) 4 SC 101 and IGBELE V. STATE (2005) 4 QCCR 77 at 93.

In his concluding arguments, Mr. Abdullahi, of counsel pointed out that because Exhibit A1 was not signed by the Appellant it was worthless and totally lacking in probative value and also incapable of being corroborated by the oral evidence of PW1 to PW4, who also failed to adduce any cogent and credible evidence. He relied and quoted very extensively from the decision in ONWE V. STATE (2017) LPELR – 42589 (SC) to explain that contradiction in evidence which relates to a material ingredient of the offence charged is fatal to the case of the prosecution. While relying on the case of IGABELE V. STATE (2006) 5 LRCN 30 at 57, learned counsel pointed out that no weapons were recovered from the Appellant to warrant any meaningful finding that he killed the deceased. He further relied on OBADE V. STATE (1991) 6 NWLR (PT. 198) 435 at 451 to submit that

whenever there exists any doubt regarding the identification of an accused person as the one who committed an offence, he must be given the benefit of that doubt. He urged on the Court to so find with respect to the facts in the instant appeal and resolve this issue in favour of the Appellant.

After reproducing the full text of the 2nd issue for determination, learned counsel to the Respondent Mr. Abubakar proceeded to boldly assert that the Court below properly considered the entire evidence adduced before it and fully evaluated it as required by law. He added that the finding of guilt of the Appellant was well made.

On the issue of purported discrepancies in the evidence of the prosecution witnesses, learned counsel pointed out that minor discrepancies which do not touch on the material evidence or elements of the offence charged cannot vitiate the proceedings or findings of a trial Court. While relying on the case of SELE V. STATE (1993) 1 NWLR (PT. 269) 276, learned counsel pointed out further that the law appreciates and accepts the fact that human faculty may miss some minor details mostly due to lapse of time. Also, errors may occur and do

sometimes occur in the order of sequence of narrations of events or even locations, or on minute details. Such discrepancies or inconsistences not touching on the substance of the case are not considered as contradictions. Against these aspects of the case of SELE V. STATE (supra) learned counsel submitted that it is not every contradiction in the evidence of witnesses that can be treated as material to vitiate or render the conviction of an accused person unsafe. According to learned counsel, for a contradiction to vitiate a conviction, it must go to the root of the matter and cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testified. Relying on the decisions in GABRIEL V. STATE (1989) 12 SCNJ 33 and NWACHUKU V. ONWUWAINE (2011) ALL FWLR (PT. 589) 1044, Mr. Abubakar, of counsel emphasised that a piece of evidence is said to contradict the other when it asserts the exact opposite of what the other asserts and not when there are minor discrepancies between the two.

While revisiting the quality of evidence led by the prosecution at the trial of the Appellant, Mr. Abubakar, of counsel referred to the decisions

in EFFIONG V. STATE (1996) 4 SCNJ 95 at 105 and ALI V. STATE (1988) 1 NWLR (PT. 68) 1 to explain that it is settled law that even a single witness can establish a case beyond reasonable doubt provided that the Court believes his evidence and the offence is one which by law requires no corroboration. Also according to learned counsel the credibility of evidence depends not on the number of witnesses but on whether the Court sees good reasons to accept it.

In what may be the next level, learned counsel explained that the evidence of PW1 to PW4 fully corroborated the contents of Exhibits A and A1. To demonstrate the extent of corroboration, learned counsel undertook copious references of the recorded evidence of each of PW1, PW2, PW3 and PW4. Against the backdrop of this, learned counsel remarked that a Court can convict an accused person by proof of facts by one or a combination of methods such as; confessional statement of accused, evidence of an eye witness or witnesses or circumstantial evidence. And while referring to the evidence of witnesses which established certain facts beyond any doubt, learned counsel submitted that there was enough

circumstantial evidence on record to prove and establish the guilt of the Appellant.

According to learned counsel Mr. Abubakar, the oral evidence of the Appellant as DW1 is significantly at variance with his extrajudicial statements in Exhibits A and A1. Learned counsel urged the Court to regard his evidence in Court as unreliable and hold that the Appellant does not deserve the benefit of credibility as a witness of truth. He relied on the decisions in AJOSE V. FRN (2013) 8 NCC 555 at 559 and EZEMBA V. IBENEME (2004) ALL FWLR 179.

While emphasising certain key aspects of the evidence of PW1 and PW2, learned counsel observed and pointed out that it was fully established that the Appellant was the last person seen with the deceased alive. By this, learned counsel emphasised, the Appellant had a duty to explain what happened to the deceased but all evidence on record showed that the Appellant had failed to offer this explanation in any significant respect. Sequel to this failure of the Appellant, learned counsel maintained that there was wickedness and betrayal in the conduct of the Appellant in his relationship with the deceased.

In concluding his arguments and submissions, learned counsel explained that it is trite that a basic and essential element of the offence of culpable homicide which requires proof is that the cause of death must be linked to the act or omission of the accused but where the deceased died on the spot soon after an injury was inflicted by an accused person, the accused could be guilty of the offence without the need for medical evidence. Learned counsel maintained that there is no need to deploy medical evidence or any weapon as an Exhibit to prove the guilt of the Appellant in view of the overwhelming circumstantial evidence that was adduced at the trial. He urged the Court to so hold and resolve this issue against the Appellant.

In resolving this issue, I am of the view that the proper stage to begin is to focus on some of the key aspects of the evidence of the prosecution witnesses and juxtaposing same with the evidence of the Appellant in his admitted extrajudicial statement to the Police (Exhibits A and A1).

PW1 had this to say:
“I know barrister Sirajo Abubakar. He was my husband. I was married with him for 3 years 7 months before he

died. We have one male child. He is called Muhammad Sirajo Abubakar. Barrister Sirajo is dead. I know the accused person. He is Atiku Abubakar Galadima. He is my husband’s cousin. He was a close friend of Sirajo. They were always together.
On 3rd June, 2012 around 7.00 a.m. barrister Sirajo told me that he was going to see a land he wanted to buy. He went out with accused person on his motorcycle with a lot of money. The accused person came to our house and took the deceased on the motorcycle. After they left I went to kitchen to made food, I kept the food for the deceased and went to Salame for naming ceremony. When I came back the following day on Monday I met the food as I left it untouched. I came back around 9.00 a.m. in the evening. I called his friend Abdullahi Umar on phone to find out the whereabout of Sirajo. He told me that he saw him with the accused person on a motorcycle. I told the relations of the deceased that I did not see the deceased for days. Since the time the accused person left with the deceased on the motorcycle he did not come back to our house. 6 days after the deceased left with the accused person his dead body was

found in a village of Dundaye. After the dead body was found in the bush the accused person ran away and was not seen for many years. I gave my statement to the police. The accused person come back 4 years after the death of the deceased”.

As part of her evidence, while responding to cross-examination, PW1 added thus:
“I saw the corpse after it was clothed for burial. We were not shown the dead body because of its trouble conditions. I do not know how the deceased died. The dead body was found 6 days after the deceased left his house with the accused person”.

For PW2, his evidence went thus:
“I know barrister Sirajo Abubakar, he was close friend since childhood. We were friends for 35 years. Barrister Sirajo is dead. I know the accused person. The accused person was a close friend of the deceases and a relation. The accused person is not married. He was living in his family house at Gidawa. He lives in the same area with the accused person. The house of the deceased is not far from the family house of the accused. They lived in the same Gidawa area. On Sunday 3rd June, 2012 the wife of the deceased PW1 called me

around 9 a.m. and ask me about the whereabout of the deceased. I told her I saw the deceased on a motorcycle around 4 p.m. she told me to tell the deceased that she left the key with a neighbour Kware because she was going to Salami for a naming ceremony and she will not come back until the following day. On coming back on Monday PW1 phoned to tell me that the deceased was not back as she met the food she left for him untouched. I advised her to inform the family of the deceased. I contacted our friends including the accused person because I saw him with the deceased the previous day on Sunday. The accused person told me that he was with the deceased throughout Sunday. I told PW1 and the mother of the deceased what the accused person told me. On Tuesday around 7 am, I and the mother of the deceased went to the house of the accused person. We sent a boy to call him. When he came out of the house the mother of the deceased asked the accused the whereabout of the deceased. The accused person told the mother that he left the deceased at Kwannawa in the house of a woman. I asked the accused person why he did not take the deceased home when he knew that the

deceased was drank instead of leaving him at Kwannawa. We asked the accused to take us to Kwannawa and show us where he left the deceased. The accused person told us to wait for him. We waited for him outside his family house for long. When we could not wait any longer the mother of the deceased entered into the house only for her to found out that the accused had claimed the wall and run away. The accused person was not seen until after 4 years. On Friday 8th June, 2012 we heard that a corpse found at the university teaching hospital Sokoto which was discovered to be the corpse of the deceased.
The dead body was released to the relation for burial. I attended the burial of the deceased”.

His cross-examination was also short and brief. It was as follows:
“I contacted my friends when I did not see the deceased. We went round looking for the corpse. The deceased not drink alcohol. I do not know if the deceased took hard drugs. I did not see the dead body. I do not know how he died.
Re examination Sani. Nil”.

PW3 was also brief and to the point. His evidence was thus:
“I know barrister Sirajo Abubakar. He is

my brother. He is my younger brother. I know the accused. He is Atiku Abubakar Galadima. He is our relation. He is our cousin. He was a very close friend of the deceased.
On 4th June, 2012 on Tuesday PW1 phoned to tell me that the deceased went out with the accused the previous day on Sunday but he did not come back. It was around 7 a.m. in the morning she told me. I told my brother Maniru to escort me to the Police to report the matter which we did. Since that day I did not set my eyes on the accused person. I reported the matter to Kwannawa Arkilla, Dandikowa, Gwiwa, Anguwar Rogo and State C. I. D. Sokoto. We went to specialist hospital and Uduth Sokoto but to no avail. PW2 later told me that they were at the house of the accused when he claimed the wall and run away. Since then the accused person did not come back until after 4 days. The mother of the accused person told us that she did not know where the accused person was. We later discovered that the corpse of the deceased was found in Dundaye Village. The corpse was taken to UDUTH Sokoto. The dead body was released to us for burial. I saw the dead body. The body was stoned. There were cuts all over

the body. The body was stoned. There were cuts all over the body. He was also slaughter like a ram. I told the police about the recovery of the dead body. The accused person came back in 2016. We informed the police who arrested the accused person”.

His cross-examination was more robust and engaging. It went thus:
“The dead body was found 5 days after the deceased left home. We heard the news that the dead body of the deceased was found. The dead body was buried the following day. I saw the dead body I was not at the house of the accused person with my mother and PW2. I was aware that the accused person claimed the wall and ran away. There were crowds at the house of the accused. It was not the crowd which cause the accused person to ran away. I do not know if there was past marten examination. The police took the dead body to UDUTH and not the relation of the deceased. I do not know if the cuts I saw on the body of the deceased were made before he died or after his death. I do not know the cause of the death”.

PW4, the mother of the deceased, had this to say in her evidence in chief:-
“On 4th June, 2012 I was at

home, when his wife (PW1) told me that the deceased did not back home. I went to the house of the accused person with PW2. When I met the accused person I asked him about my son because they were together on the day he died. He told us to wait outside and let him go inside the house to wear his cloth. When we waited for long without seeing the accused person I went inside only to find out that the accused person had jumped the wall and run away. Two days after the incident the corpse was found at Dundaye with several cuts on the head. He was later slaughter. The dead body was released to us for burial”.

In the course of cross-examination, PW4 said:
“I went to the house of the accused with PW1, PW2 and the relation of the deceased. The corpse was found two days after he left home with the accused person. The accused is the suspected killer of the deceased because they were together on the day of the incident. I do not know who killed the deceased.
Re-examination Sani”.

In his extra-judicial statement to the police the Appellant had this to say:
“I know my cousin Barrister Sirajo Abubakar. He is also my

friend. I could remember on Sunday 3/6/2012 at about 8 a.m. I went to the house of Barrister Sirajo Abubakar. He asked me to accompany him to Helele. Because we could not see the man we wanted to see we went to the airport area where I bought drugs for us. I later took him to Dundaye Village where I had misunderstanding with him in the bush. I left him in the bush. After 3 days barrister mother (PW4) met me at home and asked me of the where about of Barrister Sirajo. I lied to them that I left him at old airport area. I told them to wait for me outside and went inside the house where I jumped the wall and run away to Kaduna. I returned to Sokoto after 4 years. The brothers of Barrister Sirajo Abubakar arrested me and handed me over to the police at Dadinkowa police station. Only God knows what happened between me and Sirajo Abubakar”.

Apart from denying that he killed the deceased the oral evidence of the Appellant, as DW1 at page 59 of the record of appeal, is largely in agreement with the evidence of the prosecution witnesses as regards his relationship with the deceased and being the last person seen with the deceased alive, as well as his

meeting with PW1, PW2 and PW4 on a particular date after the disappearance of the deceased, when he lied to them that he was going to dress up to take them to the last place he said the deceased was. Appellant’s evidence that he ran away for 4 years also agreed with the evidence of all the prosecution witnesses.

Corroboration in law is not a wholesale word-for-word repetition of series of activities in the narrative of an event by a number of different persons. In my humble view, it is sufficient as to amount to a corroboration when a number of persons give their own account of an event or events as to form a very coherent story that gives a clear picture of what may have happened or could have happened or indeed happened. In the circumstances of the instant appeal, there are sufficient facts linking the Appellant with the last activities of the deceased, at least between 3rd June and 5th June when by his own admission, he lied to PW1, PW2 and PW4 that the deceased was at a place that later events and facts showed he was not. There was no denying the fact that the Appellant ran away for 4 years after he was last seen with the deceased. It is curious

that the Appellant left the deceased in the bush and came home. Why did he leave him in the bush. If it was because they had a “misunderstanding”, the Appellant did not say what was the nature or extent of the misunderstanding. The Appellant also failed to explain in what state he left the deceased, in view of the fact that the deceased had a lot of money on him. It was clear that the land purchase transaction, the deceased meant to pursue on 3rd June, could not come through because he could not see the person they went to see at Helele area of Sokoto, probable for the land purchase transaction. It is more curious and significant that the Appellant had purchased “drugs” according to him, for his use or even for the deceased too. In what state was the deceased when the Appellant left him in the bush. What happened to the money that the deceased had. There was no evidence on the record that when the decomposed body of the deceased was found in Dundaye Village, there was any money around it.
It cannot be denied that some aspects of the evidence of PW1 and PW2 quoted and referred to by learned counsel Mr. Abdullahi may amount to being

hearsay evidence and generally inadmissible. It is however very clear that the lower Court did not rely on any such hearsay evidence to anchor its key and significant or crucial findings that led to the Appellant being found culpable and liable to being convicted and sentenced.
Exhibit A was the recorded extrajudicial statement of the Appellant in Hausa Language, while Exhibit A1 is the translated English version of it. Learned counsel Mr. Abdullahi failed to fully show why the lower Court should not ascribe proper probative value to Exhibit A1 after PW5 had fully associated himself with it. Why should it not be credible. It does not have to be signed by the Appellant if it was properly signed by the person who translated. The lower Court was right to admit Exhibit A1 in evidence and to also rely on it as credible.

In GRACE NWACHUKWU V. THE STATE (2014) LPELR 22531 (CA), this Court, per Abba- Aji, JCA (as he then was), held that before the doctrine of last seen is allowed to apply, it must be found and established that the accused was last seen in the company of the deceased when the deceased met his death. The accused has to proffer some

explanations as to how the deceased died. The doctrine of last seen, raises a mere rebuttable presumption of fact. In effect it means that the law presumes that the person last seen with a deceased person bears full responsibility for his death if it turns out that the person last seen with him is dead. See STATE V. KALU (1993) 7 SCNJ 113 at 124 – 125 and ADEPETU V. STATE (1998) 1 SCNJ 83 at 97.

Also, where direct evidence of eyewitnesses, is not available, a Court may infer from facts proved the existence of other facts that may legally tend to prove the guilt of the accused person or the Appellant. See MOSES JUA V. THE STATE (2010) LPELR – 1637 (SC). It is not an essential condition or legal imperative that there must be an eye -witness before the offence of culpable homicide under Section 221 (b) could be proved beyond reasonable doubt. It is well settled that proof of the commission of the offence may proceed on circumstantial evidence. See LORI & ANOR V. STATE (1980) 11 SC 81. In the case of IGABELE V. STATE (supra), the Supreme Court dismissed the appeal of the Appellant and upheld the concurrent findings of the Court of Appeal and

the trial Court on findings of facts on circumstantial evidence and the Appellant being the last person seen with the deceased. The apex Court held further that where evidence points irresistibly to the guilt of an accused person, it can ground or support a conviction.
It is for these reasons that I find that there was sufficient corroboration of facts from the evidence of the prosecution witnesses and the extrajudicial statement of the Appellant. I do not see any good reasons to believe learned counsel to the Appellant in his forcible arguments and submissions that the lower Court fell into error when it found sufficient corroboration in the oral evidence of the prosecution witnesses and the extrajudicial statement of the Appellant in Exhibits A and A1, that there are any material inconsistencies on key or material facts in the evidence of the prosecution witnesses. There is a clear and well-established evidence of the identity of the body of the deceased in the evidence of PW3.

However, the question remains; whether the death of the deceased is attributable to any act or omission of the Appellant. This key ingredient of the offence of

culpable homicide under Section 221 (b) of the Penal Code of Sokoto State must be determined upon good and credible evidence, including circumstantial facts. The proper stage to settle this question is after a full and proper resolution of issue 4 in this appeal. My full views on issue 2 will come after the determination of issue 4 herein.

On the 3rd issue for determination, learned counsel Mr. Abdullahi for the Appellant began by emphasising that the lower Court failed to properly evaluate the oral and documentary evidence adduced before it before convicting and sentencing the Appellant. He relied on the decisions in ONWUKA V. EDIALA (1989) 1 NWLR (PT. 96) 182 at 208 to 209, OBATULA GANIYU V. CHIEF E. S. B. WILKEY (2007) LPELR – 4187 (CA) 41 B – C and ANAEME V. OKPALA (2017) LPELR 42780 (CA) to define what is evaluation of evidence and what is involved in the process of evaluation of evidence. Learned counsel put forward the view that evaluation of evidence by a trial Court involves the belief of the evidence of one party and the disbelief of the other or a reasoned preference of one version to the other, as the appropriate approach for

good effect.

After putting the entire judgment of the lower Court, as contained at pages 63 – 84 of the record of appeal, in perspective, learned counsel pointed out that from pages 64 to 71, the lower Court was mainly concerned with the detailed review of the evidence of the witnesses, submissions and arguments of respective learned counsel in their filed and exchanged written addresses. Also, according to learned counsel, the lower Court did not adopt any of the issues for determination suggested by Counsel and it did not formulate its own issue for determination thereby failing to be guided sufficiently enough.

While relying on the cases of ATOYEBI V. GOV. OF OYO STATE (1994) 9 KLR (PT. 21) at 22 and UWEGBA V. ATT. GEN. OF BENDEL STATE (1986) 1 NWLR (PT. 16) 303, learned Counsel explained further that mere re – statement or review of the evidence adduced at a trial does not amount to evaluation. From paragraph 4.9 to 4.14 at pages 12 to 14 of the brief learned counsel once again picked out what he considered as contradictions in the evidence of the prosecution witnesses on the disappearance of the deceased and the recovery of the

decomposed body that was said to be that of the deceased. According to Mr. Abdullahi, of counsel, there is a discrepancy of between 2, 3, 4 or 5 days when the deceased disappeared and the recovery of the decomposed body, defending upon which witness to believe.

Against the foregoing learned counsel was bold to say that the lower Court went fishing for evidence. After improperly and unfairly accusing the lower Court of “bridging the yawning gap” in the prosecution’s case, learned counsel relied on the case of UTB LTD V. OZOEMENA (2000) LPELR – 10106 (CA) to argue and submit that the Court of trial, as an unbiased umpire should not descend into the arena of conflict. Learned counsel continued to highlight and catalogue series of facts which he believed materially conflict with one another as to render them incredible and lacking in quality or probative value. Learned counsel added that it was the failure of the lower Court to properly evaluate the evidence before that led to the failure to also resolve the contradictory evidence of the prosecution witnesses and to give the Appellant the benefit of doubt that he was fully entitled to.

While commenting on the documentary evidence in Exhibits A and A1 against the evidence of the Appellant as DW1, learned counsel relied on a number of decided cases to show why the oral evidence of DW1 should have been preferred more than the content of Exhibit A1, in view of the fact that the evidence of DW1 was straight forward to the extent that he was not cross examined. Nearly all the remaining arguments and submissions of Counsel from paragraphs 4.20 to 4.30 at pages 16 to 18 of the Appellant’s brief of argument are an immoderate indulgence and improper use of words and expressions against the judgment of the lower Court. I do not think there is any need to go into them in any greater details.

In his response, learned counsel Mr. Abubakar for the Respondent began by referring to the decisions of the Supreme Court in WOLUCHEM V. GUDI & ORS (1981) 5 SC 291, AWOYALE V. OGUNBIYI (1986) 4 SC 93 and SHA V. KWAN (2000) 8 NWLR (PT. 670) 685, to explain that a trial Court has the duty of evaluating, appraising and ascribing probative value to oral evidence adduced before it. And because this is an exclusive function of a trial Court,

appellate Courts are enjoined not to interfere with the findings of fact of a trial Court unless such findings are shown to be perverse and based on improper evaluation of facts or wrong and erroneous conclusions on admitted evidence. Against this background and in the circumstances of the instant appeal, learned counsel on behalf of the Respondent remarked that the lower Court prudently and objectively evaluated the evidence before it and arrived at the proper conclusions and inferences.

While referring to page 67 of the record of appeal, as part of the judgment of the lower Court, learned counsel faulted the submissions that the lower Court did not formulate an issue for determination. According to Mr. Abubakar, the lower Court clearly adopted the single issue for determination as formulated and argued by counsel to the parties and the issue was set out as; “Whether the prosecution has proved their case against the accused beyond reasonable doubt or not.” Learned counsel also referred to page 73 of the record of appeal and quoted therefrom, as part of the judgment on appeal, to point out what he believed to be an evaluation of evidence by

the learned trial judge, after he had earlier at page 72 set out that he believed to be the evidence of PW1 to PW4. According to learned counsel, after relying on the decisions in FATAI BUSARI V. THE STATE (2015) 11 NCC 43 at 50 andADELUMOLA V. STATE (1988) 1 NWLR (PT. 73) 683, ( another wrong citation), the evaluation of evidence by the lower Court was unassailable. He urged on the Court to so find and hold that the learned trial judge had adequately evaluated the evidence and ascribed probative value wherever due on it and further urged on the Court not to disturb those findings of fact.

In his further attempt to support the steps followed by the lower Court, learned counsel pointed out that it was not only that the learned trial judge believed the evidence of the prosecution witnesses, it moreso based its final decision to find the Appellant guilty as charged because there was undisputed and well established evidence, including that from the mouth of the Appellant that he took the deceased to Dundaye village and abandoned him there, where eventually the decomposed body of the deceased was discovered. Added to this, according to Mr. Abubakar, of

counsel, the lower Court relied on circumstantial evidence and the doctrine of last seen because there was overwhelming evidence that the Appellant was the last person seen together with the deceased alive and the Appellant had failed to offer any clear account of what transpired between him and the deceased.

On the lingering and festering arguments of learned counsel Mr. Abdullahi for the Appellant on contradictions on the exact dates on some key events, learned counsel Mr. Abubakar reasoned that the Court must appreciate that the events leading to the trial of the Appellant happened in 2012, and because he ran away for 4 years, trial could not start until 2018 when the witnesses gave evidence. According to learned counsel this lapse of time may inevitably give rise to the minor discrepancies in the evidence of the witnesses. Against the backdrop of this Mr. Abubakar, of counsel maintained that the most crucial questions to be answered at the trial were; whether the deceased was dead, whether the Appellant was the last person seen with the deceased alive and whether the Appellant had given satisfactory explanations as to what happened to the deceased,

and it is totally immaterial whether the body of the deceased was found 2, 3, 5 or 6 days after he disappeared.

While relying on the case of ISHAYA V. STATE (2018) 16 NCC 519 at 524, AGBO V. THE STATE (2006) 6 NWLR (PT. 977) 545 at 563 and other decided cases in paragraph 5.15 at page 20 of the brief of argument, learned counsel submitted that it is well established that in criminal trials the case for the prosecution must not be riddled with material contradictions and inconsistencies that would make it unsafe to convict an accused person but not every contradiction or inconsistency that would be fatal to the case for the prosecution. Learned counsel pointed out that judicial authorities have maintained that for any contradictions to be fatal, they must go to the substance of the case and not merely minor or trivial but substantial and fundamental. Learned counsel urged on the Court to find that the lower Court had properly evaluated the evidence before it and all its findings were based on the evidence and to proceed further to resolve this issue against the Appellant.

In resolving this issue, I wish to point out that, nearly all the material

evidence before the lower Court had been reproduced hereinabove in this judgment. However, before I proceed further, I wish to point out it was totally erroneous for counsel to the Appellant to argue and submit that the lower Court failed to formulate issues for determination in its judgment. This false stance of learned counsel can easily be debunked, as suggested by learned counsel to the Respondent by a quick perusal of page 67 of the record of appeal where in lines 20 – 23, the lower Court, as part of its judgment said:
“Both parties formulated one issue for determination which is adopted by the Court as follows:-
-Whether the prosecution has proved their case against the accused person beyond reasonable doubt or not.”

Every though, a Court is only to be guided by the issues formulated by counsel to the parties before it. It is not absolutely bound to accept any such issues as formulated or at all, except where such non – adoption of issues or total failure to formulate issues for determination prejudiced a party or occasioned a miscarriage of justice to it. Therefore, in the absence of any such contention, if at all,

the submissions of Mr. Abdullahi, of counsel that no issues for determination were formulated by the lower Court remain hollow and unsubstantiated. It is also wrong for the learned counsel Mr. Abdullahi to say that the Appellant was not cross-examined. Available record shows that the Appellant as DW1 was cross-examined as contained in lines 20 to 23 at page 59 and lines 1 to 8 at 60 of the record of appeal.

I am of the view that all the seeming contradictions as to the exact number of days or whether the death of the deceased was actually on 3rd June, 2012 or other days up to the date his body was discovered was of no moment or significance. Also whether the encounter between PW1 and PW2 was on 3rd June, 2012 or 4th June, 2012 is of no significance, because there was uncontradicted evidence that it was because of the series of events between Sunday 3rd June and Tuesday 5th June that led PW1, PW2 and PW4 to come to the house of the Appellant to find out the whereabouts of the deceased. This fact came from the mouth of the Appellant himself.

In my humble opinion, the Kickstarter events that guided and belied the main and substantive decisions of the

lower Court were predicated on the movement of the Appellant and deceased on the morning of Sunday 3rd June, 2012, from the home of the deceased for an initial objective of a land purchase transaction at Helele area of Sokoto. When that could not be consummated, the two good friends, the Appellant and deceased, neighbours and family members decided to do other things. They remained together up to about 4.00 p.m. when the PW2 saw them. According to the Appellant he took the deceased to Dundaye village where he had a “misunderstanding” with the deceased and he left him in the bush. Also, according to available evidence, the deceased was not seen alive after 4.00 p.m. on 3rd June, 2012, until some days later when his dead body was found around Dundaye Village.

Further to the foregoing, PW5 told the lower Court thus:
“It was the accused that killed the deceased. He was the last person seen with the deceased. When the deceased died the accused person was nowhere to be found who was always with the deceased before his death. The accused person told the relations of the deceased that he knew where the deceased was. From that time the

accused person disappeared for several years from 2012 until 2016 when he resurfaced. These convinced me that it was the accused person who killed the deceased”.
See lines 16 to 23 at page 58 of the record of appeal.

This evidence was part of the cross-examination of PW5. It was at this stage that the evidence at the trial of the Appellant began to be narrowed down more specifically to circumstantial evidence predicated on the doctrine of last seen, the Appellant telling lies as to the whereabouts and the exact location of the deceased and his ultimate disappearance for 4 years. There was therefore not much to be evaluated by the learned trial judge because all the facts appeared not to have been significantly in dispute. The most relevant and material facts coalesced and form a coherent story that the Appellant was the last person to be seen with the deceased alive. When the Appellant was requested to offer explanations as to the whereabouts of the deceased he lied to the mother, wife and another friend of the deceased, and also upon that, ran away and was not seen until after 4 years. Having carefully examined the entire trial of the

Appellant and the evidence adduced before the lower Court, I am of the view that faced with the nature of the evidence at the trial, there was indeed not much to evaluate and the lower Court did its best in the circumstance and the steps it took cannot be faulted. Issue three is therefore resolved against the Appellant.

On issues 4 and 5, and after having read and considered the arguments and submissions and the various statutory provisions and decided cases cited and referred to in the briefs of respective learned counsel, and also after deciding issues two and three, it is important to underscore some basic peculiar facts in the circumstances of the instant appeal. One of such cardinal facts is the absence of eye witnesses to the murder or killing of the deceased. It is also beyond per adventure that the lower Court linked the Appellant with the death of the deceased based on the circumstances the Appellant found himself, being the person who picked up the deceased from his home in the presence of the deceased’s wife and from that moment PW1 (the deceased’s wife) never saw the deceased alive. It is also significant that the Appellant, apart

from saying that he left the deceased in the bush after a misunderstanding, he has failed to give any good account of the events leading to the misunderstanding to the extent that as good friends and family members, he could abandon the deceased in the bush. When requested to account for the whereabouts of the deceased, the Appellant lied and never gave any explanations why he ran away for 4 years, except his feeble excuse that he feared being killed if he tried to help PW1, PW2 and PW4 to the location of the deceased and also feared reporting to the police that he left the deceased with a particular woman. Also, feeble fearing that if he did the police would also kill him. These explanations of the Appellant sound laughable. At what hour of the day did the Appellant leave the deceased at Dundaye Village?

It has been settled by this Court and the Supreme Court in a long line of cases that where direct evidence of eye witnesses is not available, the Court may infer from the facts proved the existence of other facts that may logically tend to prove the guilt of an accused person. In drawing an inference of guilt of an accused person from circumstantial

evidence great care must be taken. Accordingly, before circumstantial evidence can form the basis for conviction the circumstances must clearly and irresistable suggest that the accused was the person who committed the offence and that no one else could have been the offender. See for example, FATOYINBO V. ATT. GEN. WESTERN NIGERIA (1966) WNLR 4, UDEDI BIA V. STATE (1976) 11 SC 133, ADIE V. STATE (1980) 1 – 2 SC 116 and OMOGODO V. STATE (1981) 5 SC 5.

It is axiomatic and also well settled that in a criminal trial, the burden is always on the prosecution to prove the guilt of the accused person beyond all reasonable doubt. Therefore, generally, there is no duty on the accused to prove his innocence. Circumstances may, however, arise where some explanation may be required from the accused person such as where apparently and manifestly damning facts are established against him. In the instant appeal the facts established in evidence by the prosecution clearly proved a prima facie case requiring the Appellant to at least explain all what he did with the deceased on the fateful day he was last seen with him. See IGHO V. STATE (1978) 3 SC 87.

The offence

of culpable homicide is provable by circumstantial evidence notwithstanding that neither the body nor any trace of the body of the deceased had been found, not even when the accused made no confession.

In my view, and I have no reason to disagree with the learned trial judge, in the instant appeal, the circumstantial evidence adduced by the prosecution proved beyond doubt that it was the Appellant who killed the deceased.

Against all the foregoing issues 2, 4 and 5 are also resolved against the Appellant. Having resolved all the 5 issues for determination in this appeal against the Appellant, the appeal is devoid of any merit, it is accordingly dismissed. The judgment of the Sokoto State High Court delivered on 24th July, 2018 in charge number SS/02C/2018 is affirmed.

FREDERICK OZIAKPONO OHO, J.C.A.: I Agree.

ABUBAKAR MAHMUD TALBA, J.C.A.: I read the draft judgment just delivered by my learned brother ALI A. B. GUMEL, JCA. I am in agreement with the reasoning and conclusion reached in disallowing the appeal as same is devoid of any merit. I also dismiss the appeal. The judgment of Sokoto State High Court delivered on 24th July,

2018 in charge No. SS/02C/2018 is affirmed.

Appearances:

IBRAHIM ABDULLAHI For Appellant(s)

ALMUSTAPHA ABUBAKAR, DEPUTY DIRECTOR LEGAL DRAFTING, SOKOTO STATE MINISTRY OF JUSTICE For Respondent(s)