MAIDABO v. STATE (2020)

MAIDABO v. STATE

(2020)LCN/14722(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, November 19, 2020

CA/S/61C/2019

RATIO

ADDRESS: WHETHER ADDRESS OF COUNSEL CONSTITUTE EVIDENCE

ADDRESS: EFFECT OF FAILURE TO CONSIDER ADDRESSES

It is important to note that the failure to consider addresses or even take them will not be fatal to the case of lead to a miscarriage of justice and can even be dispensed with. See the case of MFA vs. INONGHA (2005) ALL FWLR (PT. 283) 93 AT 114. The issue of ordering the filing of written addresses is constitutionally encapsulated in Section 294(1) of the 1999 Constitution as amended. PER OHO, J.C.A.
ADDRESS: WHETHER A WRITTEN ADDRESS OF COUNSEL AFTER IT IS ADOPTED HAS TO BE READ IN OPEN COURT

On the question of whether a written address of Counsel after it is adopted still has to be read in open Court has been an issue which has been dealt with on several occasions by this Court. See the case of case of UMAR vs. STATE (2015) LPELR-24717 [CA] 13-16 PARA. E where this Court per AWOTOYE, JCA whilst also distinguishing the case of MIKAILU had this to say on the subject:
“I am of the respectful view that MIKAILU’s case turned on its facts. The facts of this appeal are distinguishable from MIKAILU’s case (supra). In MIKAILU’s case, the written addresses filed were not read or adopted in open Court. But in this appeal, the written addresses were adopted in open Court. The filing and adoption of written addresses have an aim. It is to save time and remove delay in the administration of Justice. To demand that the Counsel should appear in Court to present and read the address in open Court would defeat the entire purpose of calling for a written address. See GWAR vs. ADOLE (2003) 3 NWLR (PT. 808) 516. The adoption of the written addresses so filed makes the addresses public. That is why adoption of the written addresses is important and non-adoption could vitiate a proceeding. An adoption of a written address is an open, public affirmation of the summing up of facts and law of a party to the Court and adversary. See OBODO vs. OLOMU (1987) NWLR (PT. 59) 111.”
If written addresses will have to be read in open Court, then the whole objective in filing them is defeated. PER OHO, J.C.A.

ADDRESS: AIM OF FILING WRITTEN ADDRESSES IN COURT

It must be realized that the aim of filing written addresses in Court, is primarily to save time and obviate unnecessary delay in the administration of justice. The reverse certainly is the end result if an order to file addresses is made and it is insisted that after filing it learned Counsel will have to appear to present it viva voce. That obviously cannot be a measure meant to save time and enhance speedy trial. PER OHO, J.C.A.

EVIDENCE: WHEN WILL A PIECE OF EVIDENCE CONTRADICT ANOTHER

A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor variation or discrepancy between them. Thus, two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short, or contains a little more than what that piece of evidence says or contains some minor differences in details. See the cases of UYO vs. AG- BENDEL (1986) 1 NWLR (PT. 17) 418; ASARIYU vs. THE STATE (1987) 4 NWLR (PT. 67) 709. PER OHO, 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

MUHAMMADU MAIDABO APPELANT(S)

And

THE STATE RESPONDENT(S)

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Kebbi State delivered on the 2nd day of October, 2018 in Charge No: KB/HC/123C/2016 Coram: E. A. KARATU, J wherein the Court found the Accused person, (hereinafter referred to as the Appellant) guilty of the offence of Culpable Homicide punishable with death. It would be recalled that this matter had first been heard before this Court in Appeal No: CA/S/148C/2014 and subsequently referred to the Court below for a trial de novo. Following the orders of this Court, the Appellant was again on the 28th of November, 2016, re-arraigned before the High Court of Justice Kebbi State on a (one) count charge alleging the offence of Culpable Homicide punishable with death contrary to Section 221 (b) of the Penal Code Law via a charge dated the 21st of November, 2016. (See page 4 of the records). 6 (Six) prosecution witnesses who testified as PW’s 1 – 6 and tendered Exhibits A & A1, B & B1 and C & C1 shortly before the prosecution closed its case. Exhibit A was tendered in the cause of the cross examination of PW3 (Ladan Manu). See pages 33 – 57 of the records.

The Appellant testified in his defence as DW1 and called no witnesses. See page 59 – 61 of the records. The case was thereafter adjourned to the 25th of June, 2018 for parties to file and exchange written addresses and on the said date, parties filed and exchanged their respective written addresses and the case adjourned subsequently to the 27th of August, 2018 for judgment. See pages 62 – 63 of the records. On the 2nd of October, 2018 the Court below delivered a well-considered judgment convicting and sentencing the Appellant to death for the offence contrary to Section 221(b) of the Penal Code. See pages 63 & 112 – 126 of the records.

Dissatisfied by the decision of the Court below, the Appellant has appealed to this Court by filing a notice of appeal dated the 19th of October, 2018 and filed same on the 20th of November, 2018. A total of Eight (8) grounds of appeal have been filed herein. (See pages 127 – 133 of the records).

ISSUES FOR DETERMINATION:
The Appellant nominated a total of four (4) issues from for the determination of this Court as follows;

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? (Ground 2)
2. Was the Court below right in law in holding that the evidence of PW’s 1, 2, 3, 4, 5 & 6 provided the necessary corroborative evidence to Exhibits A & A1, B & B1 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? (Grounds 3 & 4)
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 and B & B1 respectively? (Grounds 5, 7 & 8)
4. Was the overall decision of the Court below correct in law? (Grounds 1 & 6)

On the part of the Respondent, the four (4) issues nominated by the Appellant were adopted with some modifications, as follows:
1. Whether the Court below has infringed on the Appellant’s Constitutional right to fair hearing and trial in Public when it made use

of counsel’s written addresses without same being read in the open Court. [Ground 2]
2. Whether the Court below was right in law in holding that the evidence of PW1, 2, 3, 4, 5, and 6 provided necessary corroborative evidence to Exhibits B, B1, C and C1 respectively and relying on the said evidence to convict the Appellant for offence of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code. [Grounds 3 and 4]
3. Whether the Court below has properly evaluated both oral and documentary evidence before placing reliance on such evidence to convict and sentence the Appellant on the basis of Exhibits B, B1 C and C1 respectively. [Grounds 5, 7 and 8]
4. Whether the decision of the Court below is correct in law. [Grounds 1 and 6]

SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
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 being read in the open Court?

The contention of learned Counsel in arguing this issue is that by the provision of Section 36(1) and (3) of the Constitution of the Federal Republic of Nigeria 1999 as amended,

the Appellant is not only entitled to the right to fair trial within a reasonable time but equally entitled to trial in public. Counsel argued that these are all constitutional rights that cannot be waived as they are inalienable rights. Counsel referred to the case of UGOJI & ORS vs. IWUAGWU (2013) LPELR-20810(CA) in support of his arguments.

According to learned Counsel, from the cold printed records, at pages 63 – 64 of the records, parties merely adopted their respective written addresses simpliciter without more. No oral speeches were taken at the Court below relating to the written addresses. The addresses that were filed and exchanged consequently upon the order of the Court below at page 62 lines 1 – 2 of the records, were not subsequently read in the open Court. This is in violation of the right to public trial as enshrined under Section 36(3) of the Constitution of the Federal Republic of Nigeria 1999. Counsel cited the case of MIKAILU vs. STATE (2001) 8 NWLR (PT. 715) AT 469 on the issue.

Arising from the above judicial authority, Counsel submitted that the

constitutional right of trial in public and fair hearing of the Appellant was infringed upon and that this definitely vitiated the whole proceedings. He cited the case of OYEKAN vs. AKINRINWA (1996) 7 NWLR (PT. 459) 128, where the apex Court per ONU, JSC stated thus:
“In essence, what I am saying is that the proposition of the law that the denial of a party’s counsel (where established and proven) of the opportunity of addressing that Court is not a mere irregularity but a defect in proceedings which strikes at the right of the party to fair hearing thereby rendering the proceedings a nullity vide OBODO vs. OLOMU (1987) 3 NWLR (PT. 59) 111.”

Counsel therefore urged this Court to resolve this issue in favour of the Appellant and against the Respondent.

ISSUE TWO:
Was the Court below right in law in holding that the evidence of PW’s 1, 2, 3, 4, 5 & 6 provided the necessary corroborative evidence to Exhibits A & A1, B & B1 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?

It is submitted for the

Appellant that in convicting and sentencing the Appellant to death, the Court below placed heavy reliance on the evidence of PW’s 1, 2, 3, 4, 5 & 6 and held that the said evidence provided the necessary corroborative evidence to Exhibits A & A1, B & B1 as well as Exhibits D & D1 (sic). Thence at page 126 lines 19 – 24 of the records, the Court below held thus;
“… the evidence of PWs 1 – 6 provided the necessary corroboration and I find the accused person Muhammadu Maidabo guilty as charged and convict him for the offence of Culpable Homicide punishable with death contrary to Section 221(b) of the Penal Code and sentence him to death by hanging. May God have mercy upon your soul, amen.”

Against the backdrop of the foregoing, Counsel argued that contrary to the position taken above by the Court below, the evidence of the PW’s 1, 2, 3, 4, 5 & 6 did not provide the necessary corroborative evidence to Exhibits A & A1, B & B1 as well as Exhibits D & D1 (sic) and went ahead to demonstrate this by analyzing the evidence put forth by the prosecution to wit: PW1 is Aliyu Garba.

According to Counsel, in his examination in chief at pages 33 – 36 of the records, PW1 under cross-examination admitted the fact that he was not at the scene of the alleged crime but that he was informed by Garba Rugga (PW5) that it was the accused person that killed JABBI BARTI. See page 34 lines 22 – 24 of the records. The contention of Counsel was that by this piece of evidence under the PW1 was emphatic that he does not know who exactly cut off the hand of JABBI BARTI.

This, according to learned Counsel, is against the background of the fact that the said Garba Rugga (PW5), who informed the PW1 of the Appellant’s complicity in the killing of the deceased, never testified that he knows the Appellant; that as a matter of fact, the PW5 never identified nor gave any evidence that he knows the Appellant as there was no dock identification of the Appellant. PW5 at page 54 lines 27 – 29 of the records stated thus;
“… I also see the accused person standing at the dock. I know one Jabbi Barti, he is now dead. On 30/12/2011 on a Friday, I was at Kara Market in Argungu…”

The further argument of Counsel is that

whatever Garba Rugga (PW5) informed PW1 was damaging hearsay evidence in the absence of dock identification at the earliest opportunity that he knows or has ever known the Appellant. Counsel defined what hearsay evidence is all about and cited a number of decided cases in support of his arguments. In the case of the PW2, one Inspector Umaru Musa learned Counsel contended that he, the PW2 did not know what transpired on the 30th of December, 2011 (the date stated in the charge as the alleged date of the commission of the alleged offence) as his narration to the Court is only centered on what he knew transpired on the 31st of December, 2011. The argument of Counsel was therefore, that the PW2 was never at the scene of the alleged incidence on the 30th of December, 2011; in addition, that under cross-examination, he admitted that when he eventually went to the scene of the alleged crime, nothing was recovered thereat. At page 54 lines 1 of the records, PW2 stated thus; “we were three IPOs. I did not recover anything at the scene of the crime”.

In the case of the PW3, one Ladan Manu, Counsel argued that he neither identified nor gave any evidence

that he knows the Appellant. Again, Counsel said that there was no dock identification of the Appellant. See page 44 lines 13 – 14 of the records. Once again Counsel contended that whatever the PW3 gave evidence on was damaging hearsay evidence in the absence of dock identification at the earliest opportunity that he knows the Appellant. Counsel’s argument on the veracity of the evidence of the PW4 and 5 was same as that of the PW3. In the case of the PW6, who Counsel referred to as an Official witness, one Daniel Ishaku, he is said to have said under examination in chief and under cross examination, that he did not know what transpired on the 30th of December, 2011 but only gave a narration of what he was informed about and subsequently acted upon.

Against the backdrop of the foregoing, Counsel submitted that PW’s 2, 4 & 6 are official witnesses of the prosecution in relation to what they were informed about as far as the alleged incidence was concerned and that their evidence is therefore hearsay evidence. Counsel cited the case of OMISORE vs. STATE (2005) 1 QCCR P. 148 AT 167 LINES 7 – 21, where this Court per ADEKEYE JCA

(as he then was) held as follows:
“Evidence of an investigating Police officer called to testify as to the admission by another witness who is not called to give evidence is hearsay evidence…Hearsay evidence is inadmissible and cannot form the basis of any judgment given by any Court and it is immaterial whether the evidence was objected to or not by the other party.”

It was further contended by Counsel that the PW3, the said Ladan Manu (a brother to the deceased) and who proclaimed to be an eye witness to the incidence of 30/12/2011, going by a close perusal of his evidence before the Court below and his extra judicial statement to the police tendered under cross examination as Exhibits A & BA1 will reveal a sharp contradiction depicting PW3 as a pathological liar. Counsel argued that for instance, in his evidence before the Court below, the PW3 alleged that he saw when the Appellant cut-off the right hand of the deceased. But in his extrajudicial statement to the Police and when the alleged issue was still fresh on the mind, he only stated that he purportedly saw the Appellant holding a machete and had already cut off the

right hand of the deceased but not that he saw that Appellant cutting same off.

Again, Counsel said that in his evidence in chief before the Court below, the PW3 alleged that the deceased showed him what the Appellant did to him, but that upon a close scrutiny of the extra judicial statement of the PW3 (Exhibit A1) will reveal that there was nowhere at the earliest possible time did he state that fact. The argument of Counsel here is that this shows that the extra judicial statement of PW3 is at variance with the evidence given by the same PW3 on oath before the Court below and therefore disparages PW3 as a truthful witness in line with the admonition of the Court in the case of STATE vs. EDO (1991) 7 NWLR (PT. 201) 98 AT 110 – 111.

The submission of Counsel here is that the evidence of all the witnesses for the prosecution did not corroborate the purported extra judicial statements of the Appellant as constituted in Exhibits B & B1 and C-C1 respectively that the acts of the Appellant actually caused the death of the deceased person. It is further submitted that in the extra judicial statement of the PW3 to the Police (Exhibits A &

A1), it was clearly stated that the deceased did not die on the spot but rather the deceased received treatment at the Hospital and that the PW3 was there with him at the hospital alive and had to leave when the relations of the deceased came. See page 44 of the records.

Therefore, Counsel argued that since the evidence of the prosecution witnesses did not corroborate the extra judicial statements of the Appellant, there is the need to have a detailed medical report as to the cause of death with certainty. He contended that so many questions, which are likely to be posed in relation to the peculiar circumstances of this case and for which the medical report never answered include:
a. Did the deceased die as a result of loss of blood occasioned from the alleged acts of severance of the hand of the deceased?
b. Did the deceased die of other causes or causes secondary to the alleged acts of severance?
c. Can severance of a hand cause the death of a human being and under what circumstances can it lead to instant death?
d. What was the actual cause of the death of JABBI BARTI when he was brought to the Hospital and received treatment?<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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What were the types of Medical treatment received by JABBI BARTI while on admission at the Hospital and the effects of such drugs?The argument of Counsel is that these and many other questions are questions begging for answers and for which only a medical report would have answered for the purposes of showing that death was the probable and not only likely consequence of the purported acts of the accused person and for which neither the evidence of PWs 1 – 6, nor the purported extra judicial statements of the Appellant could provide. He said that the Court below therefore merely speculated by relying on the evidence of the PWs 1 – 6. According to Counsel, in law speculation has never been the function of a court of law as a Court is only entitled to rely on the evidence before it and not on speculation. See SEISMOGRAPH SERVICE (NIG) LTD vs. OGBENI (1976) 4 S.C. AT 101; IGABELE vs. STATE (2006) 4 QCCR PG 77 AT 93 – 94 LINES 47 – 10 R4.
Learned Counsel also drew attention to the fact that in Exhibits A & A1, B & B1 and C & C1 the name contained therein is in sharp contrast to the name on the charge sheet before

the Court below and for which PWs 1 – 6 gave evidence on. Thence he said that in the charge before the Court below, the name as used is Muhammadu Maidabbo. See page 4 of the record. As it affects Exhibits A, B & B1 and C & C1 admitted into evidence before the Court below, Counsel contended that they each carry different names which are at variance with the lone charge before the Court. Counsel highlighted the two different names thus: “Maidamma Alh. Mamman” and “Moh’d Maidabo Alh. Mamman Lato.”

The question next posed by learned Counsel is that the Police having been seised of this matter from the earliest opportunity, from where did they derive the various names they have used in this matter? According to Counsel between the names: “Maidamma Alh. Mamman” and “Moh’d Maidabo Alh. Mamman Lato” and “Muhammadu Maidabo” (as used in the charge for which the accused person was arraigned), who was the person whose act caused the death of the deceased? He contended that the prosecution charged MUHAMMADU MAIDABO for causing the death of JABBI BARTI and not MAIDAMMA ALH. MAMMAN

and MOH’D MAIDABO ALH. MAMMAN LATO as in Exhibits A & A1, B & B1 as well as in Exhibit C & C1; he argued that for this reason, therefore Exhibits A & A1, B & B1 as well as in C & C1 cannot in law be used against the Appellant.

This very much he said was admitted by PW2 at page 54 lines 1 – 9 of the records when he stated that the date of the alleged incidence was 23/1/2012 contrary to the date stated in the charges and that the endorsement on Exhibit C (sic Exhibit A) was made on the 3/1/2017. PW2 at the said pages stated thus;
“… We were three IPOs. I did not recover anything at the scene of crime. It is true that in Exhibit A, the accused said he used a cutlass and cut the hand of the deceased person. The statement was recorded on 31-12-2011. I cannot remember the actual date of the incident. I see Exhibit C (sic) is 23-1-2012. I cannot remember the number of witnesses we recorded their statements on the scene. On 11-4-2017, I told the Court that the statements Exhibits C1 (sic) were recorded on 31-12-2011 and endorsed on 3/01/2017. I did not tell the Court that it was only myself and the accused

person when I recorded his statement. The accused person gave us his name as Muhammadu Maidabo.

To make matters rather worse, Counsel argued that the Prosecution admitted at page 54 lines 12 – 18 of the records that the Exhibits tendered were the statements of the Appellant’s father. Unfortunately for the Prosecution, Counsel contended that the statement made as Prosecution Counsel herein was not evidence and cannot provide the necessary corroboration for the extra judicial statements of the Appellant and that it is clear that the Prosecution ended up prevaricating between three (3) names ascribed to the Appellant as accused person and the three dates as the persons who allegedly committed the said offence on two dates i.e. 30/11/2011, 30/12/2011 and 23/01/2012 (as named in the 1st count charge before the Court below) which in law is not allowed.

It was also contended that the Police who investigated this case had difficulties of intra-personal conflict as they were torn between telling the truth and telling lies. He argued that this was the same scenario that the Supreme Court of Nigeria was caught with in the case of ONWE vs. STATE

(2017) LPELR-42589(SC). Learned Counsel submitted that in law, contradiction which relates to a material ingredient of an offence charged is fatal to the prosecution’s case. He cited the case of IGABELE vs. STATE (2006) 5 LRCNCC P. 30 AT 57U RATIO 10 in support. In addition, Counsel drew attention to the fact that the purported Machete that was allegedly used on the deceased was not tendered in evidence by the prosecution to provide the necessary corroboration. Counsel cited the case of OBADE vs. STATE (1991) 6 NWLR (PT. 198) 435 AT 451, where the Court held as follows:
“Whenever there exists any doubt regarding the identification of an accused person as the person who committed the offence, he must be given the benefit of doubt.”

Counsel urged this Court to resolve this issue in favour of the Appellant and against the Respondent.

ISSUE THREE:
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 and B & B1 respectively?

In arguing this issue, learned Appellant’s Counsel

contended that the Court below did not properly evaluate both oral and documentary evidence adduced before it before placing reliance, convicting and sentencing the Appellant. He said that a hard look at the judgment of the Court below would reveal that pages 112 – 122 of the records contain the recital of the evidence of witnesses and the restatement of the submission of counsel to the parties and nothing more. Counsel submitted that the Court below never formulated any issue for its determination neither did it adopt any of the issues formulated for the determination of the Court by the parties, thence, there was nothing to guide the Court below in the resolution of the dispute before it.

It was further contended that there was no evaluation as to why the Court should make use of the statements attributed to the father of the Appellant as the alleged confessional statements of the Appellant as stated by the PW2 in the records and as restated elsewhere in the Appellant’s brief. Counsel drew attention to the fact that the Appellant denied being the maker of Exhibits A & A1, B & B1, C & C1 and indeed all the alleged confessional

statements attributed to him, but that there was no assessment of oral evidence to determine whether the Appellant was the maker of the alleged confessional statements, which was used in convicting him at the Court below.

According to Counsel, the Court below was never guided by the criteria that the Court must satisfy itself before it convicts on an alleged confessional statement. He argued that contrary to the contention of the Court below at page 123 of the records, that all the prosecution witnesses identified the Appellant as “Muhammadu Maidabo”, the Appellant has sufficiently demonstrated while arguing issue No. 2 in this brief that the prosecution witnesses never identified the Appellant in the dock, let alone identifying him as “Muhammadu Maidabo”.

Learned Counsel argued that the lower Court had to take the position at page 123 of the records that it was the evidence of the PW4 that led it into agreeing that it was the Appellant that gave the police his name as Maidamma Alhaji Mamman and that it was not until after he was sent to prison that they heard prisoners calling him “Maidabo” and that it was for

that sole reason that the Court held that Exhibits B & B1 was that of the Appellant in its purported evaluation.

However, in learned Counsel’s submission on the issue, it is contended that, that does not amount to evaluation because it does not still explain how the discrepancies in name came about. He queried in his arguments, which of the names ascribed to the Appellant appropriately substitutes “Maidabo”? In the purported evaluation of evidence, Counsel submitted that the Court below lost sight of the evidence of the PW2 at page 54 lines 1 – 9 of the records when he stated that the date of the alleged incidence was 23/1/2012 contrary to the date stated in the charges and that the endorsement on Exhibit C was made on the 3/1/2017. To make matters worse, Counsel further drew attention to the Prosecution’s admission at page 54 lines 12 – 18 of the records that the Exhibits tendered were the statements of the Appellant’s father.

What is more, Counsel also submitted that PW2 admission’s that the statements admitted against the Appellant were that of his father is an admission against his

interest and is admissible in evidence and need no further proof. See the cases of AWOTE vs. OWODUNNI (NO. 2) (1987) 2 NWLR (PT. 57) 367; ISO vs. ENO (1999) 2 NWLR (PT. 590) 204; ATANZE vs. ATTAH (1999) 3 NWLR (PT. 596) 647. In any event, Counsel drew attention to the contents of Exhibits C & C1 at pages 15 – 16 of the records, where the name stated there of the Appellant, is “Mohammad Maidabo Alh Mamman Lato”, which is distinct from the names on the charges as well as Exhibits A & A1, B & B1. Counsel added that the purported evidence of the PW2, which the Court below placed so mush reliance upon, does not cover the names on Exhibits A & A1 (mistakenly referred as Exhibits C & C1) to wit: “Mohammad Maidabo Alh Mamman Lato”.

Learned Counsel further submitted that a mere restatement of the evidence led before the Court does not amount to an assessment and evaluation of such evidence. Counsel cited the case of ATOYEBI vs. GOVERNOR OF OYO STATE (1994) 9 KLR (PT. 21) 1 AT 22 and contended that the Court below merely placed reliance on the contents of Exhibits A & A1, B & B1 at the expense of the parole

evidence of the Appellant and the entire circumstances of the case before it without any proper evaluation of same.

In his arguments, Counsel brought to the fore the Appellant’s testimony as DW1 at page 59 at the Court below. Where he gave his name as “Mohammed Maidabo” quite distinct from the names as used in Exhibits A & A1 and B & B1 and that at no time was he cross examined by the Respondent’s Counsel about his name, which he gave and which is distinct from that on Exhibits A & A1, B & B1 and C & C1. Counsel argued that this failure invariably is a tacit acceptance of the truth of the name as stated by the Appellant in his evidence before the Court below. See the case of DIGIA vs. NANCHANG (2005) ALL FWLR 41, where the Court held as follows:
“The effect of failure to cross – examine a witness as to material evidence given by the witness means the acceptance of that evidence in its entirety by the adversary of the evidence of the said witness…”

The argument of learned Counsel is that the Court below ought to have adverted its minds to these obvious facts before coming to

the conclusion it reached in convicting and sentencing the Appellant to death.

Learned Counsel also contended that all the documentary exhibits tendered before the Court below as well as parole evidences is expected to be properly examined and evaluated and that it is the duty of the Court below to have done so in the interest of justice. See the case ofTANGALE TRADITIONAL COUNCIL vs. FAWU (2001) 17 NWLR (PT. 742) 293 at 330.

This having not been done by the Court below, Counsel contended that the failure presents a good case for the Appellate Court to intervene. See ADELEKE vs. IYANDA (2001) FWLR (PT. 60) 1581 AT 1592 R6 and ANYAEGBU vs. HUSSAINI (2001) FWLR (PT. 84) 247 AT 254 R1. Against the backdrop of the foregoing, Counsel urged this Court to hold that there was no proper evaluation and/or assessment of evidence at the Court below, which puts this Court in a better stead to make such assessment and evaluate the evidence adduced at the Court below.

Learned Appellant’s Counsel further contended that all the Exhibits relied upon by the Court below are documents that ought to be rejected all together. He told Court that the apex per

ACHOLONU, JSC (of blessed memory) when faced with a similar situation in the case of AIGUOKHIAN vs. STATE (2005) 1 QCCR 101 AT 106 LINES 7 – 14 on the statement or evidence of a witness that is of such obvious exaggerated proportions that it enters into the realm of either fantasy or is an affront to intelligence or is reckless.

Rather than adhering to this admonition, Counsel submitted that the Court below not only reproduced the exhibits in contention, but also made use of its contents and refused to resolve the manifest inconsistency that are blatantly apparent on the faces of both the parole evidence of the prosecution witnesses as well as the documentary evidences and that this definitely has occasioned a miscarriage of justice. What is particularly worrisome, according to Counsel is the fact that the Court below rejected the parole evidence of the Appellant on the grounds that it amounted to reneging on the contents of the alleged confessional statements attributed to the Appellant and went ahead to make use of them; especially without resolving the manifest inconsistencies that are blatantly apparent on the faces of the said exhibits

vis-à-vis the admission of the PW2 while testifying in chief and under cross examination.

Learned Counsel therefore urged this Court to be guided by the Supreme Court’s decision in AIGUOKHIAN vs. STATE (Supra) and to hold that the Court below was wrong in not properly evaluating the parole and documentary evidence rendered before convicting and sentencing the Appellant. Counsel urged this Court to resolve this issue in favour of the Appellant and against the Respondent.

ISSUE FOUR:
Was the overall decision of the Court below correct in law?

In arguing this issue, learned Counsel submitted that the Nigerian accusatorial or adversary system of criminal justice pivots on the statutory presumption of innocence of an accused until the prosecution proves his guilt beyond reasonable doubt. He referred to Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999, which he said secures this presumption. He also referred to Section 7(1) (b) of The African Charter on Human and Peoples Rights 1981 also guarantees this presumption. See also the cases of AHMED vs. STATE (1999) 7 NWLR (PT. 612) 641; ODEN vs. FRN (2005) 1

NCC 303 at 327. The contention of learned Counsel is that the only way the foregoing can be achieved is by proving the elements of the particular offence. He cited the case of BAKARE vs. STATE (1987)1 NWLR (PT. 52) 579 AT 588 Para C, where the apex was faced with the question as to the meaning of the expression, “beyond reasonable doubt”.

The submission of learned Counsel is that the basis for convicting the Appellant was on the alleged confessional statements, which on the basis of the evidence of PW2 was the statement of the Appellant’s father. Thence, at page 54 lines 1 – 9 of the records the PW2 stated that the date of the alleged incidence was 23/1/2012 contrary to the date stated in the charges and that the endorsement on Exhibit C was made on the 3/1/2017. The further argument of Counsel is that even the Prosecution admitted at page 54 lines 12 – 18 of the records that the Exhibits tendered were the statements of the Appellant’s father and not that of the Appellant.

Arising from the foregoing, Counsel submitted that it is a grave error of law to convict the Appellant on the statements of another person

made to the Police. He said that Section 27 of the Evidence Act, 2011 forbids the use of such statement, even if it is confessional. See the case of OZAKI vs. STATE (1990) 1 NWLR (PT.124) 92 AT 113 on this point. See also the case of WING- COMMANDER T. L. A. SHEKETE vs. NIGERIAN AIRFORCE (2000) FWLR (PT.29) 2438; GBADAMOSI vs. STATE (1992) 9 NWLR (PT.266) 465; SOLOLA vs. STATE (2005) 11 NWLR (PT.937) 460 and EMEKA vs. STATE (2001) FWLR (PT. 66) 682. The further arguments of learned Counsel on this issue is that the contents of a confessional statement only bind the maker and do not in any way incriminate any co-accused or accused person at all and cannot be used to establish the criminality of the Appellant for the offence charged.

It was contended that as infuriating as the said alleged confessions attributed to the Appellant by the Court below may sound, it remains an admission only against the maker, that is the father of the Appellant and not the Appellant himself, who, strenuously, denied the offence. Unfortunately for the Prosecution, Counsel argued also that the father of the Appellant to whom the alleged confessional statements were attributed,

did not give oral evidence at the Court below and thus, there was no parole evidence of the Appellant’s father implicating the Appellant and therefore, the Appellant had no opportunity of cross examining his father before the statements were used against him and subsequently convicted and sentenced to death. It was also contended that the Appellant having not adopted the alleged implicating statements, the contents cannot be used against him. See the cases of KASA vs. STATE (1994) LPELR – 1671 SC; GHOHOR vs. STATE (2013) LPELR – 20293 (CA); LANRE vs. STATE (2015) LPELR – 24538 (CA); SUBERU vs. THE STATE (2010) LPELR – 3120 (SC); (2010) 8 NWLR (PT. 1197) 586. See also the case of OZAKI vs. STATE (1990) LPELR – 2888 (SC); (1990) 1 NWLR (PT.124) 92, where the apex Court held thus:
“It is an error in law to convict an accused on the statement of another accused to the Police. It is a travesty of justice and gross violation of all known rules of evidence. Section 27 of the Evidence Act forbids the use of such statement even when it is confessional…”

Learned Counsel also contended that the alleged medical report, which the Court below

placed reliance upon in establishing the cause of death of the deceased is replete with uncertainties, which the Court below never resolved. For instance, in the medical report at page 27 of the records, the cause of death was not certain as it provided thus;
“…Immediate cause of death was PROBABLY Cardiac failure, primary cause of death, Hemorrhagic Shock.”

From the medical report, it was contended by Counsel that the cause of death was not attributed to the alleged cutting of the right arm of the deceased and that the by the use of the word: ‘PROBABLY’, it shows that the Medical Officer was not sure of the cause of death of the deceased. He argued that there was no evidence to explain the causes of Cardiac failure and Hemorrhagic Shock, which are technical medical terms. What is more, the medical report was admitted and used by the Court below in lieu of medical evidence given at a trial by a doctor and that this in law wrongful and fatal to the case of the prosecution in proof of the cause of death. Counsel said that the view has also been expressed that it is wrong to admit the medical report which is an expert

opinion through a third party not only because it infringes the rule that the maker of a document be called for cross-examination but also because the Evidence Act makes no provisions for that course. See the case of ONWUKIRU vs. STATE (1994) LPELR-14224(CA), EDOZIE, JCA at Pp. 21-22, paras. C – C on the issue.

To make matters rather worse, Counsel drew attention to the fact that the medical report, which the Court below placed reliance upon does not have the endorsement of the Medical Officer that purportedly signed same. He referred to page 27 of the records and submitted that this makes it difficult for the purported medical officer to be called upon to testify at the trial before the Court below and that from the said medical report, the physical cause of death is not known and this, a medical report ought to show. See the case of ZAMAN vs. STATE (2015) LPELR -24595(CA), where T. TUR, JCA at 46, Paras. D-E had this to say;
Where the evidence or report is from “any medical doctor,” a “registered medical practitioner,” “coroner” or “pathologist” the medical witness or the report, if tendered, should describe the nature of any external or

internal injuries received by the deceased and where possible, the physical cause of death.”

The contention of learned Counsel therefore, based on the foregoing, is that there is doubt as to whom precisely and what actually caused the death of the deceased and that such doubt ought to have been resolved in favor of the Appellant. See AKPABIO vs. STATE (1994) 7 NWLR (PT. 359) 635 AT 670.

It was argued in addition that in law, proof of cause of death must be unequivocal and established unequivocally otherwise an accused person is to be discharged. See SUNDAY UDOSEN vs. STATE (2007) 23 WRN AT 50; UGURU vs. STATE (2002) 4 SCNJ 282 AT 293.

Learned Appellant’s Counsel also argued that from the facts before the Court, what is presented is that the purported acts of the Appellant could have caused death but not that it certainly did. He said that the law is now trite that the burden on the Prosecution is to have proved not only that the act of the Appellant could have caused death of the deceased, but also that it certainly did. See OMOGODO vs. STATE (1981) 5 SCNJ. Against this position, Counsel also submitted that the factors to be considered

in determining whether there was intention to cause death or such grievous bodily injures are:
1. Nature of weapon or object used.
2. Part of the body on which weapon or object used.
3. Amount of force used in the offence.
4. Conditions of both deceased and accused person at the time of the offence. See the cases of ASOYUN vs. AG [1966] NWLR 287; OBOGO v. STATE [1972] SC 39.

The contention of Counsel here is there is no evidence before the Court below that states with any certainty that death resulted from the purported acts of the Appellant. Counsel finally restate all his submissions and/or arguments made while arguing issues 1, 2 & 3 and adopts same on this issue instant. And urged this Court to allow the Appeal and discharge and acquit the Appellant.

RESPONDENT:
Issue One:
In arguing this issue, learned Respondent’s Counsel submitted that contrary to the contention of the Appellant’s counsel on pages 3-5 of the Appellant’s brief, at the trial Court the Appellant was accorded the right to fair hearing and that his trial was conducted in public in compliance with the provisions of Section 36(1) & (3) of the 1999 Constitution of the Federal Republic of Nigeria [as amended].

He contended that the Appellant’s counsel reliance on the case of UGOJI & ORS vs. IWUAGWU (2013) LPELR- 20810 (CA) to buttress his point was misplaced. Counsel argued that the issue before the Court in the said case is, whether failure of the Court to provide the opportunity for parties to adopt their written addresses would amount to a breach of right to fair hearing and that this Court per OWOADE, JCA (Pp. 21-27, para. B) held thus:
“It seems to me that the most important point in relation to Appellant’s Issue No. 1 and perhaps also in this appeal is whether the failure of the learned trial Judge to give the parties an opportunity to formally adopt their written addresses and deeming same as proper record of the Court before delivery of judgment vitiates the proceedings. Now, in all the circumstances of the instant case written addresses that were not adopted and deemed to be part of the record of proceedings are as bad as written addresses that were not ordered. Also, the “address” portion of the proceedings in the instant case cannot be said to have held in

public. I would say the scenario presented here is that of an un-adopted, non-existing (but used) written address. A fair hearing entails a fair trial. The question arises, can a trial be said to be fair in a situation of un-adopted, “non-existing” (but used) written addresses? My answer to this is in the negative. In the instant case, I hold that the failure of the learned trial Judge to provide the opportunity for the parties to adopt their written addresses and to formally incorporate the written addresses as part of the proceedings at the trial offends the provision of Section 36(3) of the 1999 Constitution (as amended) which dictates that proceedings of a Court must be held in public. The sub-section does not excuse any aspect of the proceedings of Court to be held outside the glean of the public except as provided in Section 36(4)(a) of the Constitution. Furthermore, the right provided under Section 36(3) of the 1999 Constitution being a public right cannot be waived by any party to a suit. See Nigeria Arab Bank Ltd vs. Barri Engineering (Nig.) Ltd. (1995) 8 NWLR (Pt. 413) 257 at 380. Ariori vs. Elemo (1983) 1 SCNLR 1.”

The further contention of Counsel is that the facts of the instant Appeal are quite different from that of the above cited cases. He said that in the instant case, written addresses were filed and adopted in the open Court by all the parties and that this material fact is admitted by the Appellant where he said in his submissions at page 4 of the Appellant’s brief:
“From the cold printed records at pages 63-64 of the records, parties merely adopted their written addresses simpliciter without more. No oral speeches were taken at the Court below relating to the written addresses that were filed and exchanged.”

Against the backdrop of the foregoing, Counsel reproduced before the Court the relevant portions of what transpired at the Court below at pages 63-65 of the record of proceedings on 25th day of June, 2018 where the following ensued:
“Mr. Bisong: the matter was adjourned for parties to file and adopt their final written addresses and we are ready.
Mr. Gwazawa: we are also ready but I have just been given a copy of the prosecution’s final address and I may need to respond on points of law.
Court: you can do so before the

judgment is delivered.
Mr. Gwazawa: the accused person’s final written address is dated 7th June, 2018 and filed on the 11th June, 2018. We adopt the said final written address as our legal arguments on this case in urging the court to resolve the lone issue for determination in favour of the accused person.
Mr. Bisong: the prosecution final’s written address is dated 25th and filed on the same 25th June, 2018. The prosecution has raised three issues after the close of the case we urge the Court to resolve all the issues in favour of the prosecution and convict the accused person as charged.”

The argument thereafter of Counsel is that as can be seen from the reproduced portions of the proceedings, oral speeches were taken at the lower Court relating to the written addresses and that Appellant’s Counsel is only trying to mislead this Court with his submissions that the addresses that were filled and exchanged consequent upon the order of the court below at page 62 [63] lines 1-2 of the records were not subsequently read in the open Court in violation of the right to public trial as enshrined under Section 36(3) of the Constitution [supra].

Again, Counsel contended that the case cited by the Appellant’s counsel in MIKAILU vs. STATE (2001) 8 NWLR [PT. 715] at 469 in support of his argument is inapplicable to the instant case. The reason being that after the decision of the above case by the Court of Appeal, the same Court was called upon to determine whether already filed written addresses must be read or adopted in open Court in the case of UMAR vs. STATE (2015) LPELR-24717 [CA] 13-16 PARA. E per AWOTOYE, JCA who held thus:
“I am of the respectful view that MIKAILU’s case turned on its facts. The facts of this appeal are distinguishable from MIKAILU’s case (supra). In MIKAILU’s case, the written addresses filed were not read or adopted in open Court. But in this appeal the written addresses were adopted in open Court. The filing and adoption of written addresses have an aim. It is to save time and remove delay in the administration of Justice. To demand that the Counsel should appear in Court to present and read the address in open Court would defeat the entire purpose of calling for a written address. See GWAR vs. ADOLE (2003) 3 NWLR (PT. 808) 516.

The adoption of the written addresses so filed makes the addresses public. That is why adoption of the written addresses is important and non-adoption could vitiate a proceeding. An adoption of a written address is an open, public affirmation of the summing up of facts and law of a party to the Court and adversary.” See OBODO vs. OLOMU (1987) NWLR (PT. 59) 111.

In UGOJI & ORS vs. IWUAGWU (2012) LPELR – OWOADE, JCA, on pages 22-24 had this to say;
“Now, in all the circumstance of the instant case written addresses that were not adopted and deemed to be part of the record of proceedings are as bad as written addresses that were not ordered. Also, the ‘address’ portion of the proceedings cannot be said to have held in public.”

Learned Respondent’s Counsel also cited the case of GWAR vs. ADOLE (2002) LPELR – 7080 (CA) Pp. 9-10, para. E per MAGAJI, JCA on the issue, where this Court had this to say:
If written addresses will have to be read in open Court, then the whole objective in filing them is defeated. It must be realized that the aim of filing written addresses in Court, is primarily to save time and

obviate unnecessary delay in the administration of justice. The reverse certainly is the end result if an order to file addresses is made and it is insisted that after filing it learned counsel will have to appear to present it viva voce. That obviously cannot be a measure meant to save time and enhance speedy trial.”
Counsel urged this Court to resolve this issue in favour of the Respondent.

Issue two:
In arguing this issue, learned Respondent’s Counsel submitted that the Court below was right when it held that evidence of the PW1-6 provided necessary corroboration to Exhibits B, B1, C and C1 and hence found the Appellant guilty as charged and convicted him for the offence of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code. However, Counsel observed that the Court below mistakenly referred to Exhibits D and D1 instead of C and C1 or rather used them interchangeably [see page 126 lines 19-23 of the records).

Contrary to the submission of the Appellant’s Counsel at paragraphs 3.4 of the Appellant’s Brief at page 6 that the PW1, Aliyu Garba under cross examination admitted the fact that

he was not at the scene of the alleged crime but that he was so informed by Garba Rugga[PW5] that it was the accused person that killed Jabbi Barti, he said that the testimony of the PW1 actually shows that, though he did not witness the actual commission of the offence, he was nevertheless at the scene of crime, when he said thus in his evidence:
“On 30/12/2011, I was at Kara Market Argungu when we were about to go to Juma’at prayers…when I saw the accused person running holding a cutlass without its sheath…I asked what happened and he told me that the accused person killed one Jabbi Barti. I also saw a butcher holding firewood and people shouting – ‘thief’, ‘thief’; the butcher then dropped the firewood and picked one of the sticks and hit the accused person [with it] who in turn used [hit back with] his cutlass on the butcher who hit and beat the accused person the second time and the accused fell on the ground and people gathered around him.” [see page 33 of the records].

Counsel contended that based on the above testimony, it shows that the PW1 though, did not witness the actual cutting off of the

deceased’s hand, that he was nevertheless at the scene of crime and that he actually saw the accused person holding threateningly a naked cutlass trying to escape from the scene of crime but was overpowered and apprehended by the butcher whom he attacked with the cutlass as well. Counsel said that this piece of evidence has not been contradicted. In essence, he said that this piece of evidence goes a long way to prove that the accused person was the assailant contrary to his testimony in Court that the cutlass was in possession of a third party, Muchedi. [see page 60 lines 11-13 of the records].

Counsel further drew attention to the fact that sequel, to what he was told the PW1 rushed to the hospital where he met the deceased and he confirmed for himself that really, the deceased’s hand had been severed from his body and was still bleeding and vomiting and that he took the deceased to Sokoto subsequently but before reaching Sokoto he observed that the deceased was in a critical condition and sought medical intervention at Sanyinna Hospital but the deceased died at that stage. And had to go back to Argungu General Hospital with the dead body. [see page 34 of the records]

As for the PW5, Garba Rugga, Counsel contended that in his testimony, he did show that he knew the Appellant and he quite identified him, thus:
“… I also see the accused person standing at the dock…I was at Kara Market, Argungu. I was together with Jabbi discussing when I just heard a machete cut on Jabbi’s right hand, which fell on the ground. I turned my back and [saw] the accused person and he ran away. I pursued him…he was holding a machete which he used in cutting the hand of the deceased so that he would not use it on me I retreated, I did not see when Maidabo approached us but when I heard the cut and I turned my back I saw the accused person and he ran away.” [See pages 54-55 of the records]

The submission of learned Counsel about this piece of evidence is that it is not hearsay evidence. In respect of the evidence of the PW2 as to the date of the incident; 30/12/2011 or 31/11/2011, Counsel submitted that it is immaterial because his testimony is specifically in respect of what he did on the 31st that is, a day after the incident that he has referred to. In a similar vein, in

respect of the contention that the evidence of the PW1 is contradictory as to date of the commission of the offence, Counsel submitted that the PW1’s testimony is to the effect that the incident happened on the 30/12/2011. He added that this is in tandem with the testimonies of all the other prosecution witnesses as well as contents of Exhibits ‘B, ‘B1’, ‘C’ and ‘C1. It was further argued that the date of the incident is not an issue and Counsel that the IPO recorded Exhibits C and C1 after the conduct of a trial within trial. [See pages 36, 53 and 75-79 of the records].

However, assuming but not conceding that the date of the commission of the offence is an issue, learned Counsel cited the cases of JERRY IKUEPENIKAN vs. THE STATE (2011) 1 NWLR [PT. 1229) 449 AT 454 and AKPA vs. STATE (2008) 14 NWLR [PT. 1106] 72 on the question of when a piece of evidence contradicts another and submitted that in the instant case, the contradictions alluded to are as to the question of dates when the robbery was reported [occurred] was not enough to discredit their evidence. As it however relates to the issue of name, Counsel

cited the case ofOLADAPO vs. MOBA LGA (2010) 5 NWLR [PT. 1186] 117 where the Court held thus:
“Contradictions in evidence of witnesses may not necessarily be fatal to a case especially when they are minor and did not materially affect the fundamental and crucial issues. In this case, contradictions alleged which relate to spelling of names is not one of substance as it did not touch on facts in issue. The contradictions are trivial and insignificant and did not materially affect the credibility of the evidence of the witnesses.”

Learned Respondent’s Counsel also submitted that the evidence of the PW2, PW4 and PW6, the Investigating Police Officers is not hearsay evidence. He cited the case of LEKAN OLAOYE vs. STATE (2018) 73 NSCQR 1309 at page 1350 per A. SANUSI, JSC:
“I do not share the Appellant’s counsel’s view that the evidence of an IPO amounts to hearsay because an IPO narrates to the Court the outcome of his investigation or enquiries or what he recovered and in the course of his duty he must have discovered or recovered some pieces of evidence vital to the commission of the crime which trial Courts

normally consider in arriving at a just decision one way or the other. The lower Court was therefore right in refusing to discountenance the evidence adduced or given by PW3.”

Learned Respondent’s Counsel also referred to the Appellant’s submissions on the PW3’s testimony when the Appellant’s Counsel said that the PW3 did not identify the Appellant in the dock, and pointed out that there are discrepancies or inconsistencies in the PW3 testimonies. On account of this issue, Counsel cited the cases of AMODU vs. STATE (2010) 2 NWLR [PT. 1177] 47 AT 57; HENRY NWOKEARU vs. THE STATE (2010) 15 NWLR [PT. 1215] 1 @ 12 where the Court held the following views;
“The procedure for correct application of the inconsistencies rule where extra judicial statement made to the police is inconsistent with statement on oath is the witness must be cross-examined after reading the statement aloud in Court. Then the specific portions of the prior statement which are inconsistent with his present evidence on oath must be put to him to explain. When the witness cannot proffer any credible explanation, then his whole evidence, both extra

judicial and the one on oath must be disregarded under the inconsistency rule.”

It was therefore the submission of Counsel that the witness gave reason for the inconsistency, perhaps not recorded properly by the police and urged this Court to so hold. Counsel also submitted that the pieces of evidence of the PW1-6 have directly and circumstantially corroborated Exhibits B, B1, C and C1. He cited the case of NATSAHA vs. STATE (2017) – LPELR 42359-(SC) on what amounts to corroborative evidence per MUHAMMAD, JSC (Pp. 21-22, paras. D-B. It was further submitted that Exhibits D and D1, which gives probable cause of death equally corroborated materially Exhibits B, B1, C and C1. [See pages 140-141 of the records]. Counsel urged this Court to resolve this issue in favour of Respondents.

Issue three:
On the question of improper evaluation of evidence, learned Appellant’s Counsel submitted that where an Appellant relies on the issue of improper evaluation of evidence to set aside a judgment, the Appellant has the onus to identify or specify the evidence not properly evaluated and show convincingly that if the error complained of had been

corrected, the conclusion reached by the Court would have been different and given in favour of the party complaining of wrong evaluation. See NKEBISI vs. STATE (2010) 5 NWLR [PT. 11880] 471 @ 478. It was further submitted that the Appellant failed woefully to identify or specify the evidence improperly evaluated or not evaluated and show convincingly that if the error complained of had been corrected the conclusion reached by the trial judge in the instant case would have been different and given in favour of the Appellant who is complaining.

Learned Counsel drew attention to pages 113 – 121-126 of the records, where he said that the Court below properly evaluated the evidence so far adduced and believed testimonies of witnesses of the prosecution as true whilst disbelieving the defence witnesses who regarded the evidence of the Appellant as an accused person, as an afterthought.

The contention of learned Counsel is that the learned trial judge carried out his primary functions to hear evidence and to evaluate that evidence and to believe or disbelieve witnesses who testified and decided the merit of the case based on his findings.

See OJO OGUNJEMILA vs. JAMES AJIBADE (2010) 11 NWLR [PT. 1206] 559 AT 568. As far as Counsel is concerned, the question of whether the Court believed a piece of evidence or not has nothing to do with the numbers of witnesses called, but the probative quality of the materials placed before the Court guided by our law of evidence. See CHIEF D. M. OKOCHI vs. CHIEF AMUKALI ANIMKWOI & ORS: SUIT No. SC. 80/1997 of the 28th February, 2003 per NIKI TOBI, JSC. Counsel urged this Court to resolve this issue in favour of the Respondent.

Issue four:
In arguing this issue, learned Counsel contended that the question of proof beyond reasonable doubt is not the same thing as proof beyond a shadow of doubt. He said rather, that it is a question of such proof as satisfies the judgment and conscience of the judge as a reasonable man: applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. It is further contended that this therefore, imposes a duty on the prosecution to prove the main ingredient of the offence charged against the accused person to the satisfaction of the trial

judge. See AFOLALU vs. THE STATE (2010) 43 NSCQR 227 AT 242-243.

According to Counsel, the settled position of the law is that to prove the offence of culpable homicide punishable under Section 221(b) of the Penal Code, the prosecution must prove the following ingredients:
1. That the death of a human being has actually taken place;
2. That such death has been caused by the accused person; and
3. That the act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as the accused knew or has reason to know that death would be the probable and not only the likely consequence of his act or grievous bodily harm was its probable consequence.
See AIGUOREGHIAN vs. THE STATE (2006) CAC 1 @ 49.

Against the backdrop of the foregoing, Counsel submitted that the Respondent proved that the death of a human being had occurred i.e. the death of one Jabbi Barti ‘M’. For this, Counsel referred to the testimonies of the PW1 2, 3, 4, 5 and 6 together with Exhibits B, B1, ‘C’, ‘C1’, ‘D’ and ‘D1’, [see pages 33-34, 36-37, 44-46,

46-48, 49-50, 54-56, 56-57 and 134-141 of the records].

In respect of the second ingredient of the offence, Counsel referred to the testimonies of PW1, 3 and 5, and Exhibits B, B1, ‘C’ ‘C1’. Counsel drew attention to the fact that the deceased died while on the way to Sokoto for medical treatment and was examined in Argungu General Hospital. He said that this piece of evidence given by the PW1, 3 and 5, who witnessed the incident and his death is to the effect that the Appellant dealt a deadly machete blow on the right arm of the deceased, which severed the arm completely from the body, thus resulting to bleeding and vomiting causing death of the deceased. [See pages 33, 44-45, 54-56 of the records]

In this connection, Counsel also drew attention to the Appellant’s evidence as DW1 where he informed the Court that the deceased was hit with a cutlass. For this reason, Counsel submitted that there would be no reason for this Court to doubt such uncontroverted, unchallenged evidence. Counsel urged this Court to hold that the aforesaid evidence is the truth. [See page 60 of the records].

On account of the third

ingredient of the offence, it is submitted by Counsel that the Appellant/accused person in all his confessional statements in Exhibits B, B1, ‘C’, and ‘C1’, admitted that he used his cutlass/Machete and inflicted such bodily injuries to the deceased’s hand, a vital organ of the body. As far as Counsel was concerned, the Appellant/accused person knew or had reason to know that death would be the probable and not only the likely consequence of his act or grievous bodily harm was its probable consequence. [See pages 134-139 of the records].

Learned Counsel argued in addition, that Exhibits B, B1, C and C1 proved the fact that constitutes one of or all the elements of the crime to be proved and/or identifies the person who committed the offence. See JAMES IGBINOVIA vs. THE STATE (1981) 2 SC 5 @ 17-18. Based on the foregoing, Counsel submitted that confessional statements are usually the best means by which criminal cases are established. See GIRA vs. THE STATE (1996) 4 SCNJ 94.

The attention of this Court was also drawn to the case of ASOYUN vs. AG (1966) NWLR 287; ODOGO vs. STATE (1972) SC 39, where the Court highlighted a

number of factors in connection with matters of this nature thus:
a. Nature of weapon or object; it is in evidence that a cutlass was used on the deceased.
b. Part of the body on which weapon or object used; it in evidence that same cutlass was used to cut off deceased hand leading to his bleeding to death
c. Amount of force used in the offence; the force was deadly and fatal
d. Conditions of both deceased and accused person at the time of the offence. It is in evidence that the accused person was in a revenge mission.

The contention of learned Counsel is that in the case where the deceased was attacked with a lethal weapon, i.e. a sharp and piercing cutlass on the hand with a force that resulted in cutting off the whole arm would probably result in causing death. He argued that once a nexus is established between the act of the accused and the death of the deceased, proof beyond reasonable doubt is attained. See OLALEKAN vs. THE STATE (supra) @ 207. In response to the Appellant’s Counsel Submissions in paragraph 5.18 of the Appellant’s Brief specifically at page 26, Counsel contended that Exhibits D and D1 were properly

admitted in Court through the PW6. Counsel referred to Sections 249 of the CPC and 55 of the Evidence Act.

Learned Respondent’s Counsel submitted that by virtue of Section 55(3) of the Evidence Act and Section 249(2), (3)(a)(b) & (c) of the CPC, the Court has the power on application of either of the parties or of its own motion to direct that any such medical Officer be summoned to give evidence. Counsel cited the case of FULANI M. vs. STATE (2018) LPELR – 46195 [SC] per GALINJE, JSC (Pp. 11-14, paras. E-C on the issue.

Against the backdrop of the foregoing, Counsel distinguished the instant case from that of ONWUKIRU vs. STATE (1994) LPELR -14224 (CA). He said that in the case of ONWUKIRU, case the medical officer testified as a witness for the prosecution and in the course of his Examination in Chief, the Doctor produced a report, which he made on Form D and the report was received in evidence. According to Counsel, the Court held that it was clearly inadmissible at that stage and that the Doctor might properly have been allowed to refresh his memory from the report under Section 215 of the Evidence Act, and the defence would then

have been entitled to see it and cross examine on it. In essence, Counsel argued that the admissibility of a Medical report in lieu of medical evidence given at a trial by a Doctor is wrongful and fatal to the case. In other words, he said, that it is wrong to admit the Medical report, which is an expert opinion through its maker.

As it concerned that the inadvertent mistake between Exhibits C, C1 and D, D1 by the trial judge, Counsel submitted that such a mistake, slip or error would not result to allowing the Appellant’s appeal: Counsel cited the case ofOLUSOLA ADEYEMI vs. THE STATE (Supra) DECISION 4 AND 6 AT 410-411 AND 414, PARAS G-H, A and E-H where the Court had this to say:
“The law has been over-flogged that it is not every mistake, slip, or error in being allowed since it is only where the error is substantial that it can be seen that it has occasioned a miscarriage of justice which makes it mandatory for the Appellate court to interfere and have the judgment upset.”
Further, it held thus:
“The views expressed by the Court of Appeal have settled any nagging questions that may be hanging out and I see no

reason to interfere with such a sound reasoning. This is so because a mere irregularity which is really what that slip by the trial judge was when he referred to what the daughter had said when there was nothing on which such a statement can be said to exist, then it falls into a minor human slip or error which would not vitiate the proceedings but rather an error that the Court of Appeal could and did in this case correct.”

Learned Counsel urged this Court to treat the mishap as mistake, slip or error and hold that it has nothing to do with credibility of the judgment of the lower Courts and to resolve this issue in favour of the Respondent.

RESOLUTION OF APPEAL
The first issue nominated for the determination of this Appeal is whether the Court below did not 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 being read in the open Court. The argument of Counsel is that the mere adoption of written addresses by the Court below without allowing learned Counsel to the parties to make additional oral speeches is a violation of the right to

fair hearing of the accused person and also a violation of his right to public trial as enshrined under Section 36(1) and (3) respectively of the Constitution of the Federal Republic of Nigeria 1999 as amended. Counsel cited the cases of MIKAILU vs. STATE (Supra) and OYEKAN vs. AKINRINWA (Supra) in support of his contention.
In approaching the resolution of this issue, there may the need to examine what exactly transpired in open at the Court below on the said 25-6-2018 at the resumed hearing, at pages 63-64 of the printed record, where the issue of the parties’ final written addresses where dealt with. In reproducing the said record, the following is instructive:
“Mr. Bisong: the matter was adjourned for parties to file and adopt their final written addresses and we are ready.
Mr. Gwazawa: we are also ready but I have just been given a copy of the prosecution’s final address and I may need to respond on points of law.
Court: you can do so before the judgment is delivered.
Mr. Gwazawa: the accused person’s final written address is dated 7th June, 2018 and filed on the 11th June, 2018. We adopt the said final

written address as our legal arguments on this case in urging the Court to resolve the lone issue for determination in favour of the accused person.
Mr. Bisong: the prosecution final’s written address is dated 25th and filed on the same 25th June, 2018. The prosecution has raised three issues after the close of the case we urge the Court to resolve all the issues in favour of the prosecution and convict the accused person as charged.”
From the foregoing, what clearly seem to stand out is that the addresses of the parties were filled and exchanged consequent upon the order of the Court below at page 62 [63] lines 1-2 of the records and adopted, thus making the addresses part of the records of the Court below. What this Court shall however completely disagree with is that the addresses of Counsel, not being subsequently read in the open Court amounts to a violation of the right to public trial of the Appellant as enshrined under Section 36(3) of the Constitution [supra]. Indeed, and without necessarily mincing words, learned Appellant’s Counsel made a mountain out of a molehill stressing this issue too far.

The settled position of the law is that addresses, no matter how brilliantly presented do not constitute evidence, but meant to assist the Court in achieving speedy dispensation of justice. See the case of OGUGU vs. THE STATE (1994) 9 NWLR (PT. 366) 1 AT 38. In the instant case, another point that clearly stands out just by carefully perusing the printed record, is that the written addresses of the parties as ordered by the Court below, were not only filed and duly exchanged, but were duly adopted in open Court and equally ordered to be made part of the records of the Court below. It is important to note that the failure to consider addresses or even take them will not be fatal to the case of lead to a miscarriage of justice and can even be dispensed with. See the case of MFA vs. INONGHA (2005) ALL FWLR (PT. 283) 93 AT 114. The issue of ordering the filing of written addresses is constitutionally encapsulated in Section 294(1) of the 1999 Constitution as amended.
As it is clear even on the surface of the printed records at pages 63 to 64 the adoption of the addresses of learned Counsel for the parties was done in open Court and this Court could not see any contrary

record that it was adopted or presented in secret. This, in the considered opinion of this Court clearly accords with “fair hearing in public” pursuant to Section 36(4) of the Constitution of Nigeria, 1999. This Court therefore disagrees with learned Appellant’s Counsel that the proceedings of the Court below were conducted in breach of Sections 36(1) and 36(4) of the 1999 Constitution (as amended).

It is to save time and remove delay in the administration of Justice. To demand that the Counsel should appear in Court to present and read the address in open Court would defeat the entire purpose of calling for a written address. See GWAR vs. ADOLE (2003) 3 NWLR (PT. 808) 516. The adoption of the written addresses so filed makes the addresses public. That is why adoption of the written addresses is important and non-adoption could vitiate a proceeding. An adoption of a written address is an open, public affirmation of the summing up of facts and law of a party to the Court and adversary. See OBODO vs. OLOMU (1987) NWLR (PT. 59) 111.”
If written addresses will have to be read in open Court, then the whole objective in filing them is defeated. It must be realized that the aim of filing written addresses in Court, is primarily to save time and obviate unnecessary delay in the administration of justice. The reverse certainly is the end result if an order to file addresses is made and it is insisted that after filing it learned Counsel will have to appear to present it viva voce. That obviously cannot be a measure meant to save time and enhance speedy

trial. This issue is therefore resolved in favour of the Respondent and against the Appellant.

On issue two, which challenges the lower Court’s decisions concerning the evidence of PW’s 1, 2, 3, 4, 5 & 6 as providing the necessary corroborative evidence to Exhibits A & A1, B & B1 and the Court’s reliance on same to justify the conviction of the Appellant, the submission of the Counsel to the Appellant is that the evidence of the PW’s 1, 2, 3, 4, 5 & 6 did not provide the necessary corroborative evidence to Exhibits A & A1, B & B1 as well as Exhibits C & C1.

This Court of course holds a contrary view to the submission of the Appellant’s Counsel at paragraphs 3.4 of the Appellant’s Brief at page 6 that the evidence of the PW’s 1, 2, 3, 4, 5 & 6 did not provide the necessary corroborative evidence to Exhibits A & A1, B & B1 as well as Exhibits C & C1. To begin with, although the PW1, Aliyu Garba under cross examination admitted the fact that he was not at the scene of the alleged crime, but all the same witnessed events which were nevertheless proximate, i.e., very

close in space and time to the events shortly after the crime was committed, when he said thus, in his evidence:
“On 30/12/2011, I was at Kara Market Argungu when we were about to go to Juma’at prayers…when I saw the accused person running holding a cutlass without its sheath…I asked what happened and he told me that the accused person killed one Jabbi Barti. I also saw a butcher holding firewood and people shouting- ‘thief’, ‘thief’; the butcher then dropped the firewood and picked one of the sticks and hit the accused person [with it] who in turn used [hit back with] his cutlass on the butcher who hit and beat the accused person the second time and the accused fell on the ground and people gathered around him.” [see page 33 of the records].

Against the backdrop of the foregoing, although the PW1 did not witness the actual cutting off of the deceased’s hand, it is however clear that he was at the vicinity of the crime scene and witnessed accused person holding threateningly a naked cutlass and trying to flee from the scene but was overpowered and apprehended by the butcher whom he also attacked

with the cutlass he was holding. It is important to note that this piece of evidence was not challenged. It would be recalled that the PW1 in addition also rushed to the hospital where he met the deceased and confirmed for himself, in addition to what he was told, that really the deceased’s hand had been severed-off from his body and was still bleeding and vomiting.

It should be further recalled that based on the observation of the condition of the deceased after the attack, it was the PW1 who took the deceased to Sokoto and on their way, after observing that the deceased’s condition had become critical, he sought medical intervention at Sanyinna Hospital but the deceased died at that stage and had to go back to Argungu General Hospital with the dead body [See page 34 of the records].

As it has to do with the evidence of the PW5, Garba Rugga, his evidence was rather direct as to sordid events leading to the death of the deceased. His testimony not only showed that he knew the Appellant but also showed that he directly witnessed the attack when he said at pages 54-55 of the record, thus:
“…I also see the accused person

standing at the dock…I was at Kara Market, Argungu. I was together with Jabbi discussing when I just heard a machete cut on Jabbi’s right hand, which fell on the ground. I turned my back and [saw] the accused person and he ran away. I pursued him…he was holding a machete which he used in cutting the hand of the deceased so that he would not use it on me I retreated, I did not see when Maidabo approached us but when I heard the cut and I turned my back I saw the accused person and he ran away.”

In respect of the evidence of the PW2 on the question of the date of the incident; 30/12/2011 or 31/11/2011, learned Appellant’s Counsel referred to this as a material contradiction. A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor variation or discrepancy between them. Thus, two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short, or contains a little more than what that piece of evidence says or contains some minor differences in details.

See the cases of UYO vs. AG- BENDEL (1986) 1 NWLR (PT. 17) 418; ASARIYU vs. THE STATE (1987) 4 NWLR (PT. 67) 709. In all of these, the relevant question to address here is whether there was an attack on the deceased, which led to his death? If there was one, the next question is who did the attack? The answers to these questions bring us back to the evidence of the PW5, who witnessed firsthand what transpired on the fateful date in question. The remains and has not changed on the subject. The evidence of one credible witness accepted as in this case of the PW5, and believed by a Court is sufficient to justify a conviction as truth is not discovered by a majority vote. See the cases of ALI vs. THE STATE (1988) 1 SC 35; ONAFOWOKAN vs. THE STATE (1987) 3 NWLR (PT. 61) 528 and THE STATE vs. AIBANGBEE (1988) 3 NWLR (PT. 84). So long as the evidence of the PW1 is to the effect that the attack on the deceased took place on the 30-12-2011 and that date is consistent with the testimonies of all the other prosecution witnesses and as well as contents of Exhibits ‘B, ‘B1’, ‘C’ and ‘C1, it would be utter waste of valuable time to make a

storm out of a teacup on the issue. This issue is once again resolved in favour of the Respondent and against the Appellant.

In respect of issue three challenging the 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 and B & B1, learned Appellant’s Counsel contended that the Court below did not properly evaluate both oral and documentary and that a hard look at the judgment of the Court shows at pages 112 – 122 of the records the recital of the evidence of witnesses and the restatement of the submission of Counsel without more. It was further contended that there was no evaluation as to why the Court should make use of the statements attributed to the father of the Appellant as the alleged confessional statements of the Appellant as stated by the PW2 in the records and as restated elsewhere in the Appellant’s brief.

On this vexed question of improper evaluation of evidence, perhaps a careful examination of pages 113 – 121-126 of the records, may be instructive in the circumstances of this case vis-à-vis

the issue raised herein by learned Appellant’s Counsel. In the opinion of this Court, the Court below did a yeoman’s service evaluating the evidence adduced before him and did label the evidence given by the Appellant as an accused person as an afterthought. It is important to note that the function of an Appellate Court is not to interfere in the evaluation of the evidence of the Court below. But where on the evidence before the Court, credibility of a witness is not in issue, the Court of Appeal, is in as good a position as the Court of trial, in the evaluation of evidence. See OGUNTADE vs. THE STATE (1978) 6 FCA 40 AT 45; OMOREGIE & ORS vs. IDUGIENWANYE & ORS (1985) 2 NWLR (PT. 7) 282.

The settled position of the law is that where an Appellant asserts that the prosecution has failed to prove the prisoner’s guilt beyond reasonable doubt before convicting, it is for him to establish that it is so and it is the duty of an Appeal Court to examine the assertion against the whole background of the case and in particular, against the evidence leading to the guilt of the Appellant. So said the Supreme Court in the case of

EDET OFFIONG EKPE vs. THE STATE (1994) 9 NWLR (PT. 368) 263; (1994) 12 SCNJ 131 AT 135 citing the case of OTEKI vs. THE STATE (1986) ANLR 371 AT 378.

Thus, in all cases, where culpable homicide is in issue, it is very essential that the Court receive evidence, in very certain terms that the deceased died as a result of the act of the accused person.
Where therefore, the circumstances of the attack on the deceased are clear and the injuries inflicted upon him as a result of the attack are graphically described, (as in the instant case) to lead to no other conclusion that the deceased died as a result of the attack and the injuries, the trial Court can convict. The position is that the trial Court can still go ahead and convict even if there is no medical evidence. See the observations of the apex Court in the case of ALHAJI BABUGA vs. THE STATE (1996) 7 NWLR (PT. 460) 279.

This Court therefore holds that the learned trial Judge was justified in his conclusion when he stated thus:
“It is in evidence that the PW3 and 5 were standing and discussing with the deceased person when they just heard of machete cut and the time they looked back, they saw the

accused person running away holding a cutlass and when PW3 pursued him … and met up with him, he threatened him not to touch him or come near him and so he became afraid and went back as the accused person was holding a cutlass. It was therefore not a sudden fight but the accused person premeditated his action right from the time he started the journey to Argungu from Shaki in Oyo State, as he stated in his statements Exhibits B, B1 & D, D1. The defense of provocation cannot succeed…Having admitted Exhibits B, B1 & D, D1 as confessional statements, the evidence of PW1-6 provided the necessary corroboration and I find the accused person, MUHAMMADU MAIDABO guilty as charged and …”

The fourth issue nominated by the Appellant for the determination of this Appeal, to wit: was the overall decision of the Court below correct in law, is more or less a rhetorical question and may best be answered by stating that the degree of cogency required in the proof of criminal cases beyond a reasonable doubt is well settled in a fairly large number of case law on the subject. The position is that proof need not reach or attain the height

of certainty but must have a certain degree of probability. It does not mean a proof beyond a shadow of doubt and does not admit of fanciful possibilities otherwise the law would fail to protect the community in criminal cases if what is required is a proof beyond a shadow of doubt. The position is that if evidence is so strong against a person 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 is proved beyond reasonable doubt; but nothing short of that will suffice. See the case of MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL E. R. p. 372-373. In the old case of ALONGE vs. IGP (1959) 4 FSC 203 AT 204, the apex Court held thus:
“The burden of proof lies on the prosecution and it never shifts. But this does not mean that the prosecution must call every available piece of evidence to prove its case. It is enough if sufficient evidence to discharge the onus, which the law lays upon the prosecution.”
Against the backdrop of the foregoing, it will therefore be safe to assume that in considering how best to adjudge a

matter, the general rule would seem to be that the circumstances of each case must be such as would lead to the guarded discretion of reasonable and just man to reach the conclusion reached by the trial judge. The crucial question to be answered at the end of the prosecution’s case is: can a prudent and just man entertain real and substantial doubt? Here is a case in which the PW3 and 5 on the fateful date of the attack, were standing and discussing with the deceased person along the road, when suddenly, they heard of machete cut and at the time they looked back, the deceased’s right arm had been severed off and the next thing they saw was the accused person running away holding a cutlass.
The prosecution is not expected to prove its case with absolute certainty. Absolute certainty is the prerogative of almighty ALLAH. Absolute certainty is impossible in any human adventure including the administration of criminal justice. The onus on the prosecution merely admits of a high degree of probability. See the case of ONAFOWOKAN vs. THE STATE (supra). See AFOLALU vs. THE STATE (2010) 43 NSCQR 227 AT 242-243.

In anyways, the settled position

of the law is that to prove the offence of culpable homicide punishable under Section 221(b) of the Penal Code, the prosecution must prove the following ingredients:
1. That the death of a human being has actually taken place;
2. That such death has been caused by the accused person; and
3. That the act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: the accused knew or has reason to know that death would be the probable and not only the likely consequence of his act or grievous bodily harm was its probable consequence.

Against the backdrop of the foregoing, the first ingredient requiring the establishment of the death of a human being was proved in this case with the demise of one Jabbi Barti ‘M’. For this, the testimonies of the PW1, 2, 3, 4, 5 and 6 together with the tendering of Exhibits B, B1, ‘C’, ‘C1’, ‘D’ and ‘D1’, [see pages 33-34, 36-37, 44-46, 46-48, 49-50, 54-56, 56-57 and 134-141 of the records] are clearly instructive.

In respect of the second ingredient of the offence, requiring the

establishment of fact that the death of the deceased was caused by the accused person, the testimonies of the PW1, and especially the PW3 and 5; and Exhibits B, B1, ‘C’ ‘C1’ are instructive as well. There’s no disputing the fact that the deceased died while on the way to Sokoto for medical attention and was examined in Argungu General Hospital. The pieces of evidence elicited from the testimonies of PW3 and 5, who witnessed the attack on the person of the deceased by the Appellant was not challenged. A deadly machete blow on the right arm of the deceased, which severed the arm completely from the body, thus resulting to bleeding and vomiting led to the death of the deceased. [See pages 33, 44-45, 54 – 56 of the records]. Even by the Appellant’s own showing, when he testified as DW1, he admitted hitting the deceased with a cutlass. See page 60 of the printed records.

In respect of the third and final ingredient of the offence, it is instructive to note that the Appellant/accused person in all his confessional statements in Exhibits B, B1, ‘C’, and ‘C1’, admitted that he used his cutlass/machete

and inflicted such bodily injuries to the deceased’s hand and severed it off completely from the body. Of course, the Appellant/accused person knew or had reason to know that death would be the probable and not only the likely consequence of his act or grievous bodily harm was its probable consequence. [See pages 134-139 of the records]. This is not a case in which a minor bodily injury was inflicted; but the complete severing-off of an important bodily organ as an arm. See the case of ASOYUN vs. AG (1966) NWLR 287; ODOGO vs. STATE (1972) SC 39. In addition, in the case where the deceased was attacked with a lethal weapon, i.e. a sharp and piercing cutlass on the hand with a force that resulted in cutting off the whole arm would probably result in causing death. The position is that once a nexus is established between the act of the accused and the death of the deceased, proof beyond reasonable doubt is attained. See OLALEKAN vs. THE STATE (supra) @ 207.

The confessional statements in the Exhibits B, B1, C and C1 were indeed of immense assistance to the prosecution’s case as they aided in no small measures in establishing the elements of the

crime and as well as identified the person who committed the offence. SeeJAMES IGBINOVIA vs. THE STATE (1981) 2 SC 5 @ 17-18. This Court for this reason is in agreement with learned Counsel for the Respondent that confessional statements are usually the best means by which criminal cases are established. See GIRA vs. THE STATE (1996) 4 SCNJ 94.

On the controversy generated by learned Appellant’s Counsel concerning the admissibility of Exhibit D through the PW6- the Medical Doctor, it is important to note that the under Sections 249 of the CPC and 55 of the Evidence Act, 2011 as amended, particularly Section 55(3) of the Evidence Act, 2011 and Section 249(2), (3)(a)(b) & (c) of the CPC, the Court has the power, on application of either of the parties or of its own volition to direct that any such Medical Officer be summoned to give evidence. Counsel cited the case of FULANI M. vs. STATE (2018) LPELR – 46195 [SC] per GALINJE, JSC (Pp. 11-14, paragraph E-C on the issue. For this reason, the entire controversy therefore generated by the Appellant on the issue was clearly of no moment. The facts of the case presented in the case of

ONWUKIRU vs. THE STATE (Supra) relied upon by the Appellant herein are clearly distinguishable from the facts of the present case.

Arising from the foregoing, this Appeal is moribund as it is lacking in merit and it is accordingly dismissed. Consequently, the judgment of the High Court of Kebbi State delivered on the 2nd day of October, 2018 in Charge No: KB/HC/123C/2016 Coram: E. A. KARATU, J., wherein the Court found the Appellant guilty of the offence of Culpable Homicide punishable with death is hereby affirmed.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of a preview of the lead judgment just delivered by my learned brother Oho, JCA. I fully agree with his reasonings and conclusions. However, I wish to add a few words as my contribution to the resolution of the first issue for determination in this appeal. It was formulated out of ground two of the grounds of appeal and involves a determination whether the Court below had infringed on the Appellant’s constitutionally guaranteed right to fair hearing and trial in public when it made use of the written addresses filed by the parties without same being read in open Court.

In resolving this question, it is important to begin by explaining 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. The practice of counsel taking time, often times then, up to series of adjournments to address the Court, with the unpalatable consequences of filibustering, has become old fashioned, archaic and of no significant value. It has been consigned to the dust bin of history. Therefore, to demand that each counsel should appear in Court to read out in full what is contained in their filed and exchanged written addresses, would most certainly defeat the whole purpose of speedy trials. No one doubts the fact that there is a serious congestion in the dockets of so many judges, so much so that speedy trials are being considered most unlikely or elusive.
It is axiomatic that in litigation and adjudication, counsel and the Court must approach every action or matter upon its peculiar facts and circumstances. Against this, it should be added that the adoption of written addresses in open Court makes it public enough to satisfy the requirements of

Section 36 of the 1999 Constitution, as amended. It is well established and settled that the total non-adoption of filed and exchanged written address could vitiate the entire proceedings in a trial leading to the judgment thereby rendered liable to being set aside ex debito justitiae. See GWAR V. ADOLE (2003) NWLR (PT. 808) 516, OBODO V. OLOMU (1987) 3 NWLR (PT. 59) 111 and UGOJI & ORS. V. IWUAGWU (2013) LPELR – 20810 (CA) 26 – 27.
Because in the case of UGOJI & ORS. V. IWUAGWU (supra) there was no formal adoption of the field and exchanged written addresses at all, that decision is wholly and totally inapplicable to the facts and circumstances in this appeal. The decision in MIKAILU V. STATE (2001) 8 NWLR (PT. 715) 469 cited and relied on by the Counsel to the Appellant appeared to have overlooked the modern practice and trend that when counsel in open Court, adopt and rely on either filed and exchanged written addresses, or even briefs of argument, such exercise of adopting and relying on such processes also envisaged and taken or presumed to mean that the same processes were read in Court. In the case of MIKAILU V. STATE (supra), this Court allowed the

appeal because the written addresses were not read or adopted in open Court at all. Therefore, to the extent that the written addresses in the instant appeal were adopted in open Court, the decision in MIKAILU (supra) would remain inapplicable. Therefore, with respect to the facts in the instant appeal the decision in MIKAILU (supra) cannot and should not be elasticized to mean that after a formal adoption of written addresses, there should be an additional elaborate procedure to mandatorily read the full text of such adopted and relied upon written addresses. I think not.
Against all the foregoing, and a total overview of the entire trial of the Appellant, I am unable to agree with his learned counsel that there was or is anything strong and sufficient enough to deprive it of being a public trial as provided and guaranteed under Section 36 (3) of the 1999 Constitution, as amended. See also the decision in ATIKU ABUBAKAR GALADIMA V. THE STATE (unreported) in CA/S/10C/2019 delivered on 7th September, 2020.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother FREDERICK O. OHO JCA.

I am in entire agreement with his reasoning and conclusion. A judgment which sends a convict to the gallows must be a product of a sound reasoning after a proper evaluation of the totality of the evidence presented before the Court. The judgment subject of this appeal is no doubt a well-considered judgment. I have no hesitation in agreeing with my learned brother that this appeal is moribund as it is lacking in merit. I also dismiss the appeal and I abide by the consequential order in the lead judgment.

Appearances:

IBRAHIM ABDULLAHI ESQ., with him, SHAMSU A. DAUDA ESQ. For Appellant(s)

LAWAL HUDU GARBA ESQ., (Deputy-Director of Public Prosecutions; Ministry of Justice, Kebbi State) For Respondent(s)