BUBARE v. STATE
(2020)LCN/14788(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Tuesday, November 10, 2020
CA/G/415/C/2019
RATIO
EVIDENCE: IMPLICATION OF DISCREPANCIES IN THE EVIDENCE OF A WITNESS
The law is settled that discrepancies or contradictions in the evidence of a witness are said to be material where they go to an issue of fact which must be determined before a proper verdict can be arrived at in a case, or where the circumstances in which they occurred were such as to cast a doubt on the credibility of the witness or witnesses. Thus, a contradiction is material only when it touches on an important element or issue which the prosecution needs to prove to succeed in its case – Igbi V State (2000) NWLR (Pt. 648) 169, per Ayoola, JSC; Idi Musa V State (2017) LPELR-43246(CA) 33-34, E-B. PER SANKEY, J.C.A.
EVIDENCE: WHETHER THE CASE OF A PARTY IS VITIATED BY THE MERE EXISTENCE OF CONTRADICTIONS IN THE EVIDENCE
However, it is also the law that a party’s case is not vitiated by the mere existence of contradictions in the evidence he has adduced. A contradiction is fatal to a party’s case only if it is material and substantial. A contradiction is material if it exists in the evidence on the issue being tried; and it is substantial if it will affect the decision of the Court on the issue. Therefore, the contradiction must not only be material, it must equally be substantial.
Furthermore, the law does not insist that there must be absolutely no contradictions in the evidence of witnesses called by a party on any issue in contention. The principle of law is that contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses. Put another way, the contradiction and inconsistency in the testimony of witnesses capable of upturning the decision of the trial Court has to be material contradictions and inconsistencies that affect the substance of the case, and not mere discrepancies – Nwokoro V Onuma (1999) 9 SC 59; Kareem V State (2017) LPELR-43746(CA) 16; Uto V Eze (2015) LPELR-25745(CA) 29.
Thus, it is not every contradiction or inconsistency in the evidence adduced by the prosecution that will have the effect of discrediting the totality of the prosecution’s case. For a contradiction to affect the credibility of the prosecution’s case.it must be on material facts that touch on the root or essential elements/ingredients of the offence charged. Therefore, minor or minute contradictions will be treated under the de minimis rule – Osung V State (2012) 18 NWLR (Pt, 1332) 256, 278, F-H; Bassey V State (2012) 12 NWLR (Pt. 1314) 209; Iko V State (2001) LPELR-1489(SC); Cpl. Isah Ahmed V Nigerian Army (2016) LPELR-40826(SC); Musa V State (2009) 15 NWLR (Pt. 1165) 467, per Fabiyi, JSC; Akanji V State (2020) LPELR-49531(CA) 24. PER SANKEY, J.C.A.
EVIDENCE: LEGAL POSITION ON THE PLACE OF CONTRADICTIONS IN OUR JURISPRUDENCE
I will therefore cap the current legal position on the place of contradictions in our jurisprudence by referring to the pronouncement of the learned Jurist Nweze, JSC in Emeka Mbachu V State (2018) LPELR-45163(SC) 41-43, C-A:
“The word “contradiction” traces its lexical roots to two Latin words, namely, “contra” and “dictum”, meaning “to say the opposite”, see Ikemson V State (1989) 3 NWLR (Pt. 110) 455, 479. Hence testimonies can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material to the extent that they cast serious doubts on the case as presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses … This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth, Okoiziebu V State (2003) 11 NWLR (Pt. 831) 327, 341; Nasaru V State (1999) 6-9 SC 153; Ikemson V State (supra). In any event, Courts have taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy, Ogun V Akinyelu (2004) 18 NWLR (Pt. 905) 362, 392. In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly in a capital offence, they must raise doubts as to the guilt of the accused.” PER SANKEY, J.C.A.
CRIMINAL LAW: INGREDIENTS OF PROVING A CHARGE OF CULPABLE HOMICIDE
To prove a charge of culpable homicide punishable with death under Section 221 of the Penal Code, the prosecution is required to prove by credible evidence beyond reasonable doubt the following ingredients of the offence:
1) That the deceased died;
2) That the death of the deceased was caused by the accused; and
3) That the accused intended to cause death or that he knew that death would be the probable result of his action.
These three ingredients of the offence of culpable homicide punishable with death pervaded the evidence adduced by the prosecution before the trial Court and were proved to the standard demanded by law to wit, beyond reasonable doubt. PER SANKEY, J.C.A.
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
MAMMAN BUBARE APPELANT(S)
And
THE STATE RESPONDENT(S)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering The Leading Judgment): This Appeal is against the Judgement of the High Court of Justice, Yobe State in Charge number YBS/HC/GSH/08c/2016 delivered on February 13, 2019 by Mohammed, J.
Therein, the Appellant was charged and tried for the offence of culpable homicide punishable with death under Section 221 of the Penal Code. He was subsequently convicted and sentenced to death by hanging.
Put compactly, the facts of the case leading to this Appeal are as follows: The Appellant was arraigned before the High Court of Justice, Yobe State and charged as follows:
“That you Mamman Bubare ‘M’ and Mamare Bubare ‘M’ now at large on or about the 18/07/2015 at about 1100 hrs in Gonchobe hamlet via Yusufari Local Government Area of Yobe State which is within the jurisdiction of this Honourable Court committed culpable homicide punishable with death by causing the death of one Mohammed Zarami by doing an act to wit, machetes (sic) him with a cutlass with the knowledge that death would be the probable consequence of your act, you thereby committed an offence
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punishable under Section 221 of the Penal Code.”
In order to prove the charge against the Appellant, the Respondent called a total of four (4) witnesses and tendered no exhibits. In his defence, the Appellant testified and called no other witness. A major part of the evidence placed before the trial Court constituted of eyewitness testimonies which identified the Appellant and his brother, Mamare Bubare, now on the run, as being the persons who attacked the deceased, Mohammed Zarami, with a cutlass hacking him to death, as a result of which he died on the spot. This incident came about as a result of a conflict over the Appellant’s goats eating up the crops of the deceased and others who had then approached him to complain about the damage done to their farms.
At the close of trial and closing addresses of Counsel, the learned trial Judge delivered Judgement on 13-02-19 wherein he found the Appellant guilty as charged. He convicted him under Section 221 of the Penal Code and sentenced him to death by hanging. Not satisfied with the decision of the trial Court, the Appellant filed his Notice of Appeal dated 23-04-19 on
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26-05-19 wherein he complained on five (5) grounds.
At the hearing of the Appeal on September 8, 2020, Babangida Mohammed Esq. adopted the arguments contained under issues one and three of the Appellant’s Brief of argument filed on 08-07-20 and settled by T.I. Stephen Esq., in urging the Court to allow the Appeal, set aside the conviction and discharge and acquit the Appellant. Counsel however withdrew issue two (2) distilled from Ground three (3) of the Grounds of Appeal, from the three (3) issues he had formulated for determination, including the arguments proffered thereunder.
On his part, U. Ismaila Esq., Chief State Counsel with the Ministry of Justice, Yobe State also adopted his submissions under issues one and three in the Respondent’s Brief of argument filed on 20-07-20 and settled by the same Counsel, less his submissions under issue two (2) withdrawn by the Appellant’s Counsel. He urged the Court to dismiss the Appeal and affirm the Judgement of the trial Court.
Before going any further, issue two formulated for determination in the Appellant’s Brief of argument (also adopted by the Respondent) which reads:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“Whether having regard to the evidence of PW2, the trial Judge was right when he held that the Appellant and no one did commit the act which caused the death of the deceased. (Ground 3)
having been withdrawn, as well as the arguments proffered thereunder, are hereby struck out.
In the Appellant’s Brief of argument, the remaining issues for determination are re-numbered for ease of reference and set out below as follows:
1. Whether having regard to the material contradictions and inconsistencies in the evidence of PW2, PW3 and PW4, the trial Judge was right when he convicted the Appellant on same. (Grounds 3 and 4)
2. Whether having regard to the non-disclosure of the place and time of the incidence by the prosecution witnesses, the trial Judge was right when he held that the prosecution has proved the charge against the accused person now Appellant beyond reasonable doubt. (Ground 5)
Since the Respondent adopted the issues framed for the determination of the Appeal by the Appellant, they are adopted by this Court in determining the Appeal. However, they shall be addressed together.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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ARGUMENTS
Learned Counsel for the Appellant in arguing the Appeal, submits that the evidence of the PW2 and PW3, who were eyewitnesses to the incident, is manifestly, fundamentally and materially contradictory and inconsistent. In particular, he contends that whereas PW2 stated in his evidence-in-chief that both the Appellant and his brother hit the deceased with a sword, under cross-examination he stated that he could not say which of the brothers struck the fatal blow that led to the death of the deceased.
Another point of contradiction highlighted by Counsel is the evidence of PW2 under cross-examination when he stated that the deceased was still standing on his feet and was healthy after the attack. Counsel drew a comparison with the evidence of PW3 who testified under cross-examination that the deceased died on the spot. He relies on the decisions in Sele V State (1993) 1 SCNJ 15, 22-23 per Belgore, JSC and Agbo V State (2006) Vol. 5 LRCNCC 86 on the issue of material contradictions.
In respect of issue two, learned Counsel submits that none of the prosecution witnesses testified as to the time and place of the commission of the offence
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as contained in the charge. He contends that whereas the charge states that the offence was committed at Gonchobe Hamlet via Yusufari Local Government Area of Yobe State at 1100 hours, there was no such evidence offered by the prosecution witnesses. Counsel therefore submits that by this omission, the Respondent had failed to prove the charge against the Appellant. He relies on Section 139 of the Evidence Act, 2011 (as amended) and Oteki V State (1986) ANLR (Pt. 371) 378 per Uwais, JSC. Based on these submissions, Counsel urged the Court to resolve both issues in favour of the Appellant and therefore to allow the Appeal, set aside the decision of the lower Court and discharge and acquit the Appellant.
In his response to these submissions, learned Counsel for the Respondent submits that there is no contradiction whatsoever in the evidence of PW2, PW3 and PW4. He contends that it is the duty of the Appellant to show, not only that such contradictions exist, but that the alleged contradictions are material, substantial and have led to a miscarriage of justice, and this he has not done. Reliance is placed on Enahoro V Queen (1965) 1 All NLR 125; (1965) NMLR
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265; & Agbo V State (2007) 2 NCC 158-163.
Counsel submits that the prosecution proved its case beyond reasonable doubt. He argues that proof beyond reasonable doubt does not mean proof to the hilt or proof beyond any iota of doubt. It simply means proof of the ingredients of the offence. Reference is made to the evidence of PW2 to PW4 and the decision in Adebayo V State (2008) 6 ACLR 372, 376.
In respect of issue two, learned Counsel submits that the prosecution led credible evidence with respect to the locus criminis and the time when the offence was committed by the Appellant. Reference is made to the evidence of PW1, PW3 and PW4. He again submits that the standard of proof is not proof beyond a shadow of doubt and for this, relies on Ugo V Commissioner of Police (1972) 11 SC 37; Ameh V State (1978) 6-7 SC 27; & Moses Jua V State (2010) 43 WRN 1, 24-25, per Niki Tobi, JSC. Counsel therefore urged the Court to hold that the prosecution proved the case beyond reasonable doubt and to resolve both issues in favour of the Respondent. In conclusion, Counsel urged the Court to dismiss the Appeal and affirm the decision of the trial Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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RESOLUTION
The crux of this Appeal centres around the assertion by the Appellant that the trial Court relied on the evidence of PW2 and PW3, eyewitnesses to the incident, which he contends were riddled with material contradictions, and thus it should not have been the basis for the conviction of the Appellant. The law is settled that discrepancies or contradictions in the evidence of a witness are said to be material where they go to an issue of fact which must be determined before a proper verdict can be arrived at in a case, or where the circumstances in which they occurred were such as to cast a doubt on the credibility of the witness or witnesses. Thus, a contradiction is material only when it touches on an important element or issue which the prosecution needs to prove to succeed in its case – Igbi V State (2000) NWLR (Pt. 648) 169, per Ayoola, JSC; Idi Musa V State (2017) LPELR-43246(CA) 33-34, E-B.
However, it is also the law that a party’s case is not vitiated by the mere existence of contradictions in the evidence he has adduced. A contradiction is fatal to a party’s case only if it is material and substantial. A contradiction
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is material if it exists in the evidence on the issue being tried; and it is substantial if it will affect the decision of the Court on the issue. Therefore, the contradiction must not only be material, it must equally be substantial.
Furthermore, the law does not insist that there must be absolutely no contradictions in the evidence of witnesses called by a party on any issue in contention. The principle of law is that contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses. Put another way, the contradiction and inconsistency in the testimony of witnesses capable of upturning the decision of the trial Court has to be material contradictions and inconsistencies that affect the substance of the case, and not mere discrepancies – Nwokoro V Onuma (1999) 9 SC 59; Kareem V State (2017) LPELR-43746(CA) 16; Uto V Eze (2015) LPELR-25745(CA) 29.
Thus, it is not every contradiction or inconsistency in the evidence adduced by the prosecution that will have the effect of discrediting the totality of the prosecution’s case. For a
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contradiction to affect the credibility of the prosecution’s case.it must be on material facts that touch on the root or essential elements/ingredients of the offence charged. Therefore, minor or minute contradictions will be treated under the de minimis rule – Osung V State (2012) 18 NWLR (Pt, 1332) 256, 278, F-H; Bassey V State (2012) 12 NWLR (Pt. 1314) 209; Iko V State (2001) LPELR-1489(SC); Cpl. Isah Ahmed V Nigerian Army (2016) LPELR-40826(SC); Musa V State (2009) 15 NWLR (Pt. 1165) 467, per Fabiyi, JSC; Akanji V State (2020) LPELR-49531(CA) 24.
In the instant case, it is undisputed that whereas PW1 was the father of the deceased and did not witness the incident which led to the death of his son, PW2, PW3 and PW4 where all eyewitnesses to the circumstances that led to the death of the deceased. In their own words, each of them narrated how goats belonging to different persons strayed into their farms and caused damage to their crops. As a result, they drove the goats to the two homes of the different owners who invariably apologized and promised not to allow such to repeat itself.
However, the scenario they met at the house of the
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Appellant and his brother was different. The PW2 clearly narrated that the Appellant became aggressive, drew out his sword and struck the deceased, Mohammed Zamari, on his forehead. The deceased grappled with the Appellant and the Appellant’s brother joined in the fray and also struck the deceased with a sword. It was at this point that the PW2 took to his heels with the Appellant in hot pursuit threatening to kill him also. The Appellant however turned back when PW2 arrived at a village. PW2 later got to know that Mohammed Zamari died from the injuries inflicted on him by the Appellant and his brother. For ease of reference, this was his evidence verbatim at pages 12 to 13 of the Record:
“The deceased went and drove back the animals. The accused person then removed a sword. The deceased asked the accused whether he want to hurt him, the accused cut the deceased with the sword on his forehead. They started struggling, the deceased tried to seize the sword from the accused. Then the accused person brother came out from a house holding a sword, he also hit the deceased with the sword. From there I run away. The accused pursued me with the sword
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saying that he will kill me. I reached one village and the accused went back. Later I heard that the deceased died.”
Under cross-examination, PW2 reiterated as follows:
“When the accused hit the deceased with the sword there was bleeding and I run away. The deceased was on his feet and healthy. I did not know between the deceased and his brother who strike the deceased that led to his death.”
The account of the PW3 is no different in substance. He specifically testified that the Appellant and his brother were armed with a sword and a stick which they used in killing the deceased. They also inflicted cuts on the hands of the PW4, Mallam Aisami. PW3 was not left out of this mindless carnage. The Appellant and his brother also hit him with the stick and struck his head and thumb with the sword.
The alleged contradiction touted by the Appellant in the accounts of PW2 and PW3 lay in the statement of the PW2 who said under cross-examination that at the time he ran away from the scene of crime, the deceased was on his feet and healthy, and that he did not know who, between the Appellant and his brother, struck the fatal blow. On
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the part of the PW3, he stated under cross-examination that at first when the Appellant struck the deceased with the sword, he did not fall down. However, he went further to say that he witnessed when the deceased subsequently fell down and died. I believe it is pertinent to reproduce his evidence to put it in context. At page 14 of the printed Record of Appeal, PW3 testified under cross-examination inter alia thus:
“When the accused hit the deceased with the sword he did not fall down. I was present when the deceased fell down and died. It was the accused who struck the deceased last before he died. The last strike was also on the head of the deceased. We stood helplessly because we were not armed. I was around when the accused follow the PW2. The deceased died on the spot.”
Now, even the evidence of PW4, Aisimi Bukar, mentioned by the PW3, was consistent on the material issues. Again at page 14 of the Record, PW4 stated inter alia as follows:
“The accused person removed a sword and hit the deceased on the head. Before then, the accused cut the finger of one Ahmadu with the sword, the deceased tried to hold the accused and the
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accused hit him with sword on his head. The accused again hurt the deceased for the second time on his head. I then went and tried to hold the accused but the accused hit me with the sword on my left hand and on my right hand when I tried to protect my head from his strike. Then the accused person brother came out from a house and hit PW3 with a sword on his head. By then myself and the deceased were lying on the ground.”
From a close scrutiny of the evidence of these three witnesses, it is palpable that, contrary to the contention of the Appellant, their accounts of the vicious attack on the deceased, Mohammed Zamari, by the Appellant and his brother, Mamare Bubare, with a sword and a stick on his head leading to his death at the scene of crime, were both consistent and concordant. The PW2 only gave evidence up to the point when he ran away when he was chased away by the Appellant who threatened to kill him with the same sword with which he had earlier attacked the deceased. At that point in time, his evidence was that the deceased was still on his feet in spite of the cut to his forehead. However, from the accounts of the PW3 and PW4, after he was
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again repeatedly struck by the Appellant and his brother, the deceased succumbed to his injuries and died on the spot. It is no wonder that the PW2 stated truthfully that having run away to save his own life, he only learned later on that the deceased had died. There is therefore no contradiction in the evidence of the prosecution witnesses. For these reasons, I am of the view that the learned trial Judge rightly held in his Judgement at page 34 of the Record that –
“There was no contradiction in the testimonies of PW2, PW3 and PW4 that the accused and no other hit the deceased with the sword on his head. I therefore hold that the prosecution established the guilt of the accused person in this case by the evidence of eyewitnesses.”
I find no reason whatsoever to interfere with these sound findings.
Therefore, the Appellant has not established that there were material and substantial contradictions in the evidence of the witnesses and also how the so-called contradictions affected the outcome of the case. As was held by the Supreme Court in Usiobaifo V Usiobaifo (2005) 1 SC (Pt. II) 60:
“It is trite law that contradictions
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in the evidence of witnesses can only avail the opposite party where they are material, substantial and affect the live issues in the matter, to the extent that they affect the fortunes of the appeal in favour of the party raising the issue.”
Again, the Supreme Court in Dagayya V State (2006) 7 NWLR (Pt. 980) 637 held that for an Appellant to succeed on the ground of contradictions in the evidence of witnesses, the contradictions must be shown to be a substantial disparagement of the witnesses concerned, making it dangerous or likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses.
Thus, contradictions in the evidence of witnesses may not necessarily be fatal to the case especially when they are minor; and the Judgement of the trial Court will not be reversed on appeal merely because there were minor discrepancies in the evidence of witnesses. It must be further shown that the Judge did not advert his mind to those contradictions, which is not the case in the instant case. See Taiwo V Ogundele (2012) LPELR-7803(SC); Nwachukwu V Owunwanne (2011) LPELR-3466(SC); Adoga V State (2014) LPELR-22944(CA) 67.
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Also, it is well to heed the admonition of Fabiyi, JSC on the matter of contradictions in Musa V State (supra) at 467 that it is not every miniature contradiction that can vitiate the case of the prosecution. Minor contradictions which did not affect the credibility of witnesses will not avail the Appellant. For a contradiction to be material or substantial, it must relate to the substance and the vital ingredients of the offence charged. Trivial contradictions should not vitiate a trial.
Therefore, for any touted contradiction to avail an accused person, it must be such that is capable of creating a doubt in the mind of the Court on a material issue at the trial. It must be of such magnitude as to warrant interference by an Appeal Court. This is not the position in this case.
As has been consistently stated by the apex Court and by this Court, the law does not envisage that there will be no contradictions and/or discrepancies in the evidence of witnesses. Evidence given in Court are mere recollections of events that happened to and/or by human beings. It is seldom that human beings on separate occasions narrate the same event witnessed and/or
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experienced in the exact same way. Where two or more persons give a narration of the same event they witnessed, the odds are that they will not give an exact recollection of that event no matter how exceptional their memories may be. Allowance therefore has to be made for human idiosyncrasies arising from lapse of time, differences in abilities to recall, effect of trauma on the person, threat of imminent danger or even death, e.t.c. The human memory is certainly not like a photocopier that takes in written material and reproduces same with unerring accuracy.
While the law recognizes that contradictions will occur, what the law will not allow are contradictions that are material. Generally, a material contradiction is one which casts serious doubt on the case presented as a whole or on the reliability of the witnesses. It therefore has to be one of real importance to the outcome of the case or of great consequence to same. A superficial contradiction is harmless to a case. Thus, the Supreme Court has made it abundantly clear that minor inaccuracies and discrepancies in the evidence of witnesses arising from momentary confusion while testifying before a
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Court, is of no moment as it does not touch on the justice or the substance of the case.
I will therefore cap the current legal position on the place of contradictions in our jurisprudence by referring to the pronouncement of the learned Jurist Nweze, JSC in Emeka Mbachu V State (2018) LPELR-45163(SC) 41-43, C-A:
“The word “contradiction” traces its lexical roots to two Latin words, namely, “contra” and “dictum”, meaning “to say the opposite”, see Ikemson V State (1989) 3 NWLR (Pt. 110) 455, 479. Hence testimonies can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material to the extent that they cast serious doubts on the case as presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses … This is so because it would be miraculous to find two persons who witnessed an incident giving identical
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accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth, Okoiziebu V State (2003) 11 NWLR (Pt. 831) 327, 341; Nasaru V State (1999) 6-9 SC 153; Ikemson V State (supra). In any event, Courts have taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy, Ogun V Akinyelu (2004) 18 NWLR (Pt. 905) 362, 392. In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly in a capital offence, they must raise doubts as to the guilt of the accused.”
Secondly, on the contention of the Appellant that the Respondent did not prove the charge of culpable homicide against the Appellant because the time of the offence and the place where the offence was committed was not established in evidence, it is apparent that the Appellant here is only clutching at straws.
To prove a charge of culpable homicide punishable with death under Section 221 of the Penal Code, the
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prosecution is required to prove by credible evidence beyond reasonable doubt the following ingredients of the offence:
1) That the deceased died;
2) That the death of the deceased was caused by the accused; and
3) That the accused intended to cause death or that he knew that death would be the probable result of his action.
These three ingredients of the offence of culpable homicide punishable with death pervaded the evidence adduced by the prosecution before the trial Court and were proved to the standard demanded by law to wit, beyond reasonable doubt. The time and place of the incident leading to the death of Mohammed Zamari were never in dispute. Therefore, they were not in issue such as would detract from the evidence laid before the trial Court. This is more so that the Appellant never raised a defence of alibi or that he was elsewhere at the time the offence was committed. This is therefore nothing but a mere distraction which does not detract from the fact that the charge was thoroughly proved against the Appellant by overwhelming, consistent and credible eyewitness evidence adduced through PW2, PW3 and PW4 and which the learned
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trial Court rightly believed and properly acted upon after proper assessment and evaluation.
Based on a conglomeration of all the above, I resolve both issues in favour of the Respondent and against the Appellant.
In the result, I find the Appeal devoid of merit. It fails and is dismissed.
Accordingly, I affirm the Judgement of the High Court of Justice, Yobe State delivered in Suit No. YBS/HC/GSH/O8c/2016 between The State V Mamman Bubare on February 13, 2019, by A.A. Mohammed, J., wherein the Appellant was convicted of culpable homicide punishable with death under Section 221 of the Penal Code and sentenced to death by hanging.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother SANKEY JCA. The learned counsel for the Appellant harped on the supposed contradiction in the evidence of Pw2, Pw3 and Pw4. For contradiction to cast a doubt on the prosecution’s case, it must be material going to the substance of the case against the Appellant. Contradiction that will create a doubt in favour of the
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Appellant must be vital and must cut at the foundation of the prosecution’s case.
A miniature contradiction cannot affect the prosecution’s case. It must be a contradiction that raises reasonable doubt upon the guilt of the accused person. See Okon Dan Osung Vs. The State (2012) 18 NWLR pt 1332 pg 256, Ogidi Vs State (2014) LPELR 1473.
If there are contradictions in the evidence of the prosecution, and the contradiction go materially to the charge, doubt will be created and benefit of it must be given the accused person, in which case he will be discharged “Per Belgore JSC. See Orisa Vs State (2018) LPELR 43896.
In this appeal, one cannot see the contradictions in the evidence of Pw2, Pw3 and Pw4. It is not disputed that the Appellant and his brother attacked the witnesses and the deceased.
The deceased was struck down by the brothers with a sword. The deceased fell down there and died on the spot.
I therefore, hold that there are no material contradictions that can torpedo the prosecution’s case. The prosecution proved its case beyond reasonable doubt. I also hold that this appeal fails
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and it is dismissed.
I abide by all the orders in the lead judgment and adopt them as mine.
JAMES GAMBO ABUNDAGA, J.C.A.: I read the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA.
The reasoning and conclusion reached therein accords with a meticulous consideration of the issues for determination, and succinctly put in an admirable style.
The submission of Appellant’s Counsel shows an attempt by him to hoodwink this Court into finding for the Appellant based on illusive contradictions in the evidence of prosecution witnesses.
The law remains settled that contradictions in the evidence of witnesses can only avail the opposite party where they are material, substantial and affect the live issues in the matter, to the extent that they affect the fortunes of the appeal in favour of the party raising the issue: Usiobaifo vs. Usiobaifo (2005) 181 (Pt. II) 60. See also Dagayya vs. State (2006) 7 NWLR (Pt. 980) 637.
I have also gone through the evidence of the prosecution witnesses. In truth I can see no contradictions of the magnitude harped on by appellant’s Counsel. The
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so-called contradictions are in my humble view illusory.
I have no doubt in my mind that the guilt of the Appellant was proved beyond reasonable doubt. The Appellant’s attack on the hapless victim was vicious and without cause. The Appellant’s conviction by the lower Court was a finding commensurate with his guilt.
Therefore, I too find no iota of merit in this appeal and accordingly dismiss same, and affirm the judgment of the trial Court.
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Appearances:
Babangida Mohammed Esq., holding the brief of T. I. Stephen Esq. For Appellant(s)
Ismaila Esq., Chief State Counsel, Ministry of Justice, Yobe State For Respondent(s)
