OKEKE v. F.R.N (2020)

OKEKE v. F.R.N

(2020)LCN/15265(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 22, 2020

CA/A/114C/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

UCHE OKEKE APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACTS OF THE TRIAL COURT

An Appellate Court will not lightly interfere or set aside the judgment of a trial Court unless the Appellant is able to positively show or establish that the oral and documentary evidence proffered or tendered before the lower Court were not properly evaluated or considered. It must be proved that the judgment is not only perverse, but that it has led to a miscarriage of justice making it imperative for this Court to intervene and remedy the situation. See:
1. AMOS BAMGBOYE & ORS V. RAMI OLANREWAJU (1991) 4 NWLR (PART 184) 132 at 145 B – C per BELGORE JSC late CJN Rtd. who said:
“Once a Court of trial has made a finding of fact, it is no more within the competence of the appellate Court to interfere with those findings except in certain circumstances. The real reason behind this attitude of Appeal Court is at a disadvantage as to the demeanour of the witnesses, in the lower Court as they are not seen and heard by the appellate Court. It is not right for appellate Court to substitute its own eyes and ear for those of the trial Court which physically saw the witnesses and heard them and thus able to form opinion as to what weight to place on their evidence.”
2. IRENE NGUMA (ALIAS IRENE OKOLI V. ATTORNEY GENERAL OF IMO STATE (2014) 7 NWLR (PT. 1405) 119 at 140 E – H per M. D. MUHAMMED, JSC who held thus:
“It was the trial Court that saw the witnesses during trial and heard their testimonies. This afforded the trial Court the opportunity of observing the demeanour and idiosyncrasies of the witnesses. In evaluating the evidence of the witnesses, the trial Court is expected to make full use of the opportunity it had of seeing and observing the witnesses in the course of their testimonies and having regard to applicable law and common sense arrive at the conclusions a reasonable Tribunal in that circumstance will arrive at.
evidence adduced at a trial, the appellate Court is competent to reevaluate the evidence on record in order to obviate miscarriage of justice. See IWUOHA V. NIPOST (2003) NWLR (PT. 822) 308, 343-344: ADEYE V. ADESANYA (2001) 6 NWLR (PT. 708) 1 and IRAGUNIMA V. R.S.H.P.D.A. (2003) 12 NWLR (PT. R. 834) 427.” PER IGE, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

There is no doubt that the burden and standard of proof in any criminal proceedings are squarely on the prosecution. The onus of proof does not shift.
This is statutorily provided in Section 135(1)(2) and (3) of the Evidence Act 2011 as follows::
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject; to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) if the prosecution proves the commission of a crime, beyond reasonable doubt the burden of proving reasonable doubt is shifted on the defendant.”
This must be read along with Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999) as amended which says:-
“36 (5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty, Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
Thus the prosecution is under a duty to prove the offence for components or elements of the offense for which the Accused/Defendant is charged. This can be proved vide any of the following methods viz:
(a) By evidence of an eye witness or witnesses;
(b) Through the confessional statement of the accused or Defendant;
(c) Through circumstantial evidence. See the cases of:
1. SHUAIB’U ABDU V. THE STATE (2017) 7 NWLR (Part 1564) 171 AT 186 F-H per SANUSI, JSC who said:
“In all criminal cases, the burden of proof squarely lies on the prosecution which always has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of such proof is nothing less than, proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution such doubt shall be resolved in favour of the accused person. See: Famakinwa V. The State (2013) 7 NWLR (Pt. 1354) 597, Kala V. Potiskum (1998) 3 NWLR (Pt. 540) 1; David Abaje V. The State (1976) All NLR 139.” PER IGE, J.C.A.

ELEMENTS TO PROVE AN OFFENCE

It is apposite to say that in order to prove an offence the prosecution can use any of the following modes of proof namely:
“(1) Evidence of eye witness or witnesses: or
(2) Confessional statement of the accused; or
(3) Through circumstantial evidence.”
2. S. S.YONGO & ANOR V. COP (1992) 8 NWLR (PART 257) 36 AT 50 per KUTIGI, JSC later CJN RTD.
In effect, all the elements of an offence including that of Culpable Homicide punishable with death can be proved or established by direct or circumstantial evidence. It can also be proved by the confessional statement of the Accused or the Defendant. See:-
1. OKON ETIM AKPAN V. THE STATE (2016) 8 SCM 1 AT 7 F – G per PETER-ODILI, JSC who said:
“In reiteration of what is now trite to establish the culpability of an accused in proof of a crime, anyone of the following means is acceptable, that is:-
Direct evidence also known as evidence of eye-witness or witnesses:
Confessional Statement of the accused person:
Circumstantial evidence. See Emeka V. State (2002) 32 WRN, 37, or (2006) 6 SCNJ 259.” PER IGE, J.C.A.

INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE

What then are the ingredients of the offence of culpable homicide punishable under Section 221(a) of the Penal Code Law.
By the said Section of the Penal Code Law, an offence of Culpable Homicide punishable with death is committed when a person does an act with the intention of causing death or grievous bodily injury which is likely to cause the death of another human being and which to his knowledge may result in grievous bodily harm or death and yet embark on the dastardly act.
See: 1. IREGU EJIMA HASSAN V. THE STATE (2017) 5 NWLR (PART 1557) 1 AT 33 G – H TO 34A – D per RHODES-VIVOUR, JSC who said:
“Culpable homicide is defined in Section 220 of the Penal Code.
It reads:
“220. Whoever causes death-
(a) by doing an act with the intention of causing death or such bodily; injury as is likely to cause death, or
(b) by doing an act with the knowledge that he is likely by such act to cause death, or
(c) by doing such a rash or negligent act, commits the offence of culpable-homicide.”
In Smart V. State (2016) 1 – 2 SC (Pt. II) p. 41. (2016) 9 NWLR (Pt. 1518) 447 at page 479-480, paras. H- A, I explained proof beyond reasonable doubt thus:
“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”
To succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt.
(a) that the person the accused person is charged of killing actually died;
(b) that the deceased died as a result of the act of the accused person;
(c) that the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence. See State V. John (2013) 1 NWLR (Pt. 1368) p. 377.”PER IGE, J.C.A.

DEFINITION OF THE OFFENCE OF MURDER

In the case of Ayedatiwor V. State (2018) 11 NWLR (Pt. 1631) 542 Ariwoola, JSC defined the offence of murder which is the same with culpable homicide punishable with death under the Penal Code as follows:
“Murder has been defined as; “The taking of human life by a person who either: (a) has a malicious and Willful intent to kill or do grievous bodily harm or; (b) is wickedly reckless as to the consequences of his act upon his victim”. Therefore, for murder, the suspect must have an evil intent, that is, a criminal intent, although, it is not necessary that there should be an intent to kill. See: R. V. Vickers (1957) 2 A; ER 741 at 744; Yekini Afosi V. The State (2013) 12 SCM (Pt. 2) 28 (2013) 13 NWLR (Pt 1371) 329; (2013) 6 – 7 SC (Pt. 111) 37; (2013) 6 SCNJ (Pt. 1) 1, (2014) All FWLR (Pt. 725) 268.”
The ingredients of this offence are precisely listed in the case of Idiok V. State (2008) 13 NWLR (Pt. 1104) 225, as follows:
“it is now firmly settled that for the prosecution to succeed in a murder charge under Section 319(1) of the Criminal Code (as in the instant case), it must prove beyond reasonable doubt that: “(i) there was a killing. (ii) the killing was unlawful as prohibited by Section 316 of the Criminal Code. (iii) it was the act or omission of the accused person that caused the death of the deceased. (v) the accused intended to cause the death of the deceased. See the case of Grace Akinfe V. The State (1988) 3 NWLR (Pt. 85) 729 @ 745; (1988) 7 SCNJ 226; Okoro V. The State (1988) 5 NWLR (Pt. 94) 255; (1988)12 SCNJ, 191; Ogba V. The State (1992) 2 NWLR (pt. 222) 164; (1992) 2 SCNJ, 106; Akpan V. The State (1994) 9 NWLR (Pt. 368) 347; (1994) 12 SCNJ 140 and Abogede V. The State (1996) 4 SCNJ 223 just to mention but a few. In other words, where a person is charged with the offence of murder, the prosecution must prove: (a) Whether the person alleged to have been killed is dead. (b) the cause of death and (c) whether any act of the accused person is the cause of his death. See the case of Sule Ahmed (alias Eza) V. The State (2001) 18 NWLR (Pt. 746) 623 @ 641 cited and relied on in the Appellant’s Brief. (It is also reported in (2001) 12 SCNJ 1).”PER ADAH, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Federal Capital Territory delivered by HON. JUSTICE U. P. KEKEMEKE on 8th December, 2016, convicting the Appellant of murder charge and sentencing him to death by hanging.

The one count charge of murder against the Appellant reads:
“That you Uche Okeke “m” 42 years of Angwan Azara Gwagwalada FCT on or about the 15th October, 2011 at about 00Hrs did stab your father Mr. Christopher Okeke on the head with a broken bottle which led to his death and thereby committed an offence contrary to Section 220 (a) and (b) of the Penal Code.”

The plea of the Appellant was duly taken and the matter proceeded to trial and at the end of trial and addresses of Learned Counsel to parties the Learned trial Judge gave considered judgment wherein he held as follows:
“In a Charge of Culpable Homicide such as in this case, the Prosecution is required to prove beyond reasonable doubt not only that the act of the Defendant could have caused the death of the Deceased but that it actually did.
See AUDU V. STATE (2003) 7 NWLR (PT 820) 516. Exhibit G shows that the direct cause of death is Re Hemispheric CVA and Hypertension while other significant conditions are blood loss and physical assault. The PW4 stated in evidence that the direct cause of death is Hemispheric Cerebral Vascular Accident which means stroke. The antecedent cause is hypertension. It covers moribund conditions, if any, giving rise to the above cause. That there is likely to be a precursor to the stroke. Emotional instability caused by assault can be a direct or remote cause of stroke. That the injury could cause emotional instability. That emotional instability can worsen hypertension in this case.
The scar inflicted by the Defendant was on the neck. I find as a fact that the Defendant stabbed the deceased. There is no doubt from the evidence before me that the Deceased was hypertensive. A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity and thereby accelerates the death of that other shall be deemed to have caused his death. The incident happened on 15/10/11. Deceased suffered stroke on 31/10/11 (two weeks after) and died on 06/11/11.
It is my view and I so hold that the death of the said Onwe Christopher Okeke was caused by the Defendant who accelerated his death by the stabbing.
On the 3rd ingredient whether the act of the Defendant that caused the death was done with the intention of causing death or that the accused knew that death will be the probable consequence of his act. The evidence is that the Defendant had lived with his father for 43 years. He knew his father was hypertensive. Stabbing him with a bottle naturally will cause him grievous injury.
Exhibit H is the pieces of the bottle recovered from the scene of crime. I do not believe the evidence of the Defendant. I watched his demeanour. He is not a witness of truth. His evidence is laced with half-baked truth or blatant lies.
The Deceased evidence is that the Defendant had said he would kill him. The PW1 also stated in evidence that the Defendant said somebody will die in the house and that he would kill them one after the other. The Defendant knew that death will be a probable consequence of his action and I so hold.
It is my view and I so hold that the Prosecution has proved the Charge of Culpable Homicide punishable with death contrary to Section 221 (a) and (b) of the Penal Code.
Consequently, the Defendant is hereby found guilty as charged and is accordingly convicted. Unfortunately, I have no choice in this matter. The Defendant is hereby sentenced to death by hanging.”

The Appellant was dissatisfied with the judgment and has by his Amended Notice and grounds of appeal dated 7th November, 2018 and filed on 18th December, 2018 and deemed file on 26th February, 2020, appealed to this Court on Eleven (11) grounds which without their particulars are as follows:
“GROUNDS OF APPEAL
GROUND ONE
The learned trial judge erred in law in convicting the Appellant when the prosecution failed to prove the essential elements of the alleged offence of culpable homicide punishable with death.
GROUND TWO
The learned trial judge erred in law when he came to the conclusion that the Appellant caused the death of the deceased, contrary to the evidence before the Court.
GROUND THREE
The learned trial judge erred when he failed to consider the unchallenged evidence of the Appellant which showed that after the alleged assault, the deceased was carrying on his usual activities by supplying meat to hotels before the stroke, thereby establishing the likelihood of stroke and the death being caused by other emotional instabilities or factors.
GROUND FOUR
The learned trial judge erred in law when he held that the Appellant caused the death of the deceased.
GROUND FIVE
The learned trial judge erred in law in convicting the Appellant when the evidence of the prosecution witness particularly PW4 established the innocence of the Appellant.
GROUND SIX
The learned trial judge erred in law when he held at page 16 of the judgment thus:
â… initially he (the deceased) could not walk uprightly out exactly the same in all form does not make them contradictory.â
GROUND SEVEN
The conclusion reached by the trial Court in convicting the Appellant was not borne out of the evidence before the Court. The learned trial judge held at pages 17 – 18 of his judgment as follows:
âThe scar inflicted by the Defendant was on the neck. I find as a fact that the Defendant stabbed the Deceased. There is no doubt from the evidence before me that the deceased was hypertensive… it is my view and I so hold that the death of the said Onwe Christopher Okeke was caused by the Defendant who accelerated his death by the stabbing.”
GROUND EIGHT
The Lower Court erred in law and came to perverse decision when it held at page 190 of the record of appeal thus:
“The Deceased’s evidence is that the Defendant had said he would kill him. The PW1 also stated in evidence that the Defendant said somebody will die in the house and that he would kill them one after the other. The Defendant knew that death will be a probable consequence of his action and I so hold.”
GROUND NINE
The lower Court erred in law and breached the Appellant’s right of fair hearing by not giving the Appellant adequate time and facilities for the preparation of his defence.
GROUND TEN
The learned trial judge erred in law, when he relied on Exhibit G, the death certificate to hold that the Appellant caused the death of the deceased.
GROUND ELEVEN
The decision of the learned trial judge was altogether unreasonable, unwarranted and cannot be supported having regard to evidence adduced.”

The Appellant’s Amended Appellant’s Brief was dated 17th December, 2018 and filed on 18th December, 2018. The Respondent’s Brief of Argument was filed on 8th February, 2019. It was dated some date. The appeal was heard on 26th February, 2020 when the Learned Counsel to the parties adopted their Briefs of Argument.

The Learned Counsel to the Appellant ADEOLA SALAKO, Esq., formulated two issues for determination viz:
“1. Whether prosecution discharged the burden of proving the offence of culpable homicide against the Appellant beyond reasonable doubt. (Distilled from Grounds 1, 2 and 4).
2. Whether the decision of trial Court in convicting the Appellant is not perverse and ultimately occasioned a miscarriage of justice. (Distilled from grounds 3, 5, 6, 7, 8, 10 and 11)

The Learned Counsel to the Respondent PIUS AKUTAH, Esq., ACSC Federal Ministry of Justice distilled two issues also namely:
“1. Whether the prosecution discharged the burden of proving the offence of culpable homicide against the Appellant beyond reasonable doubts?
2. Whether the decision of the trial Court in convicting the Appellant is not perverse and ultimately occasioned a miscarriage of justice?”

The issue nominated by the Appellant’s Learned Counsel, ADEOLU SALAKO, Esq., will be utilized to determine the appeal. The two issues will be taken together;
1. Whether prosecution discharged the burden of proving the offence of culpable homicide against the Appellant beyond reasonable doubt. (Distilled from Grounds 1, 2 and 4).
2. Whether the decision of trial Court in convicting the Appellant is not perverse and ultimately occasioned a miscarriage of justice. (Distilled from grounds 3, 5, 6, 7, 8, 10 and 11)

The Learned Counsel to the Appellant relied on Supreme Court decision in ANEKWE V. THE STATE (2014) 10 NWLR (PT. 1415) 363 at 378 – 379 to state the three ingredients of the offence of murder that must be proved by the prosecution against the Appellant and in case of culpable Homicide three ingredients of the offence the prosecution must establish against Appellant as laid down in the case of ALI V. STATE (2015) 10 NWLR (PT. 1466) 1 at 23 24 G – C and submitted that the three ingredients must co-exist otherwise the charged will deemed as unproved. He submitted that the prosecution failed to satisfy the conditions laid down by law to prove the charge of culpable Homicide. He referred to the evidence of PW4 the Medical Doctor who testified on Exhibit “G” the Medical Certificate relating to cause of death on pages 136 – 138 of the record. The medical certificate is copied on page 38 of the record. That PW4 stated the cause of death to be “right hemispheric celebro vascular accident” which means stroke while the antecedent causes is hypertension.”

That the evidence of PW4 apart from raising genuine doubt as to the cause of death, equally contradicts Exhibit “G” which Learned Counsel stated clearly showed that the direct cause of death is Right Hemispheric CVA and the antecedent causes (Id est, remote) is Hypertension. That the PW4 cannot by his Oral evidence vary the content of the medical certificate. He relied on the cases of BANGO V. GOV ADAMAWA STATE (2013) 2 NWLR (PT. 1339) 402 at 444 and RILWAN & PARTNERS V. SKYE BANK PLC (2015) 1 NWLR (PT.441) 437 at 467 B-C.

He submitted that Exhibit “G” created doubt in prosecution’s case as to the cause of death and this ought to be resolved in Appellant’s favour. He relied on the case of ANYANWU V. STATE (2012) 16 NWLR (PT. 1326) 221 at 272 E – G and OCHE V. STATE (2007) 5 NWLR (PART 1027) 214 at 233 D – G. He submitted that the prosecution had stated more than one probable cause of death of the deceased viz:
i. Stroke
ii. Hypertension and
iii. Assault an blood loss

That there was no evidence of blood level of the deceased and of assault before the lower Court. He referred to evidence of PW4 under cross-examination. He submitted that the trial Court ought not to have relied on the evidence of PW4 because it was hearsay and speculative. That hearsay evidence is inadmissible. He relied on the case of OMISORE V. AREGBESOLA (2015)15 NWLR (PT 1482) 205 at 323 C – D.

He drew attention of the Court to evidence DW1 (Appellant) on what he called evidence of causation of death. He referred to page 164 – 165 of the record on the evidence of DW1 who said the deceased fell in the cold room of Agura Hotel where he was supplying meat to the Hotel. That deceased has hepatitis and hypertension. That if the evidence is taken along that of PW4 and Exhibit “G” the Appellant had been exonerated. That there is doubt as to cause of death. He relied on:
1. HALSBURY’S LAWS OF ENGLAND 4th Edition vol. II (1) page 332 on Causation of death.
2. STATE V. AZEEZ (2008) 14 NWLR (PT. 1108) 483 B – D
3. ANEKWE V. STATE (2014) 10 NWLR (PT. 1415) 353 at 379 C-D.

He submitted that taking into account the time lag between the act of the Appellant that allegedly caused the death of the deceased and the day of death, that one cannot conclusively say that it was the said act of the Appellant that caused the death of the deceased. He referred to evidence of PW1 who said that he died 3 weeks after the incident and PW2 who said 21 days.

That all these pieces of evidence and that of PW4 who said he saw a scar on deceased neck which showed a healed wound all exonerated Appellant. He relied on the case of OFORLETE V. STATE (2000) 12 NWLR (PT. 681) 415 at 443. He submitted that persecution has failed to establish caused link and nexus between the act of Appellant and death of the deceased. That prosecution must establish cause of death with certainty and show it was Accused person that caused the death.

That the lower Court failed to take into account suggestions of both hypertension and stroke which he said are novus interveniens breaking the claim of causation. He relied on EKANG V. STATE (2001) NWLR (PT. 723) 1 at 23 and OKAFOR V. STATE (1990) 1 NWLR (PT. 128) 614 at 626.

On the broken bottle allegedly used by Appellant to stab the deceased Exhibit “D”, Appellant Learned Counsel submitted that the broken bottle ought to have been rejected because it was not subjected to forensic test and finger print of the Accused. That no warrant was tendered for the recovery of Exhibit “D” by PW5. That the broken bottle tendered could have been picked from anywhere.

He accused the lower Court of encouraging miscarriage of justice when prosecution failed to prove the charge beyond reasonable doubt relying on UBOCHI V. STATE (1993) 8 NWLR (Pt. 314) 697 at 709 and ORUWARI V. STATE (1986) 3 NWLR (PART 12) 486.
He urged the Court to resolve issue one in Appellant favour.

On issue 2, Learned Counsel to the Appellant submitted that the finding of trial Court was not only perverse but has led to miscarriage of justice. On what constitutes perverse decision, Learned Counsel to the Appellant relied on the case of EMEKA V. STATE (2014) 13 NWLR (PART 1425) 614 at 632 C – D. Learned Counsel submitted that evidence of PW1 relied upon heavily by trial Court was hearsay and that PW1 admitted under cross-examination that she did not see the Accused stabbed the deceased. He referred to page 124 of the record. He accused the lower Court of disregarding the Appellant’s Defence that it was when he was struggling with the PW1 that he mistakenly blow their father the deceased.

That a Court is bound to consider all the defences open to an Accused and failure to so consider amounts to miscarriage of justice. He relied on the case of ULUEBEKA V. STATE (2011) 4 NWLR (PART 1237) 358.

He also finds fault with the holding of trial Court that “the deceased evidence is that the defendant had sold, he would kill him” Learned Counsel to the Appellant submitted that: “There is nowhere in the alleged res gestae of the deceased where the deceased made such Statement”. He urged this Court to examine the judgment and defence of accident raised by the Appellant. He relied on the following cases.
1. UDOH V. STATE (1994) 2 NWLR (PT 324) 666 at 681 – 6682.
2. AJILORE V. STATE (1993) 4 NWLR (PART 289) 572 at 596.
3. KALU V. THE STATE (2017) 14 NWLR (PART 1586) 522 at 559 – 560.

The Learned trial judge was also accused of perverse decision on which he based rejection of the Defendant’s evidence by being slanted in favour of the prosecution case. That demeanour of Accused cannot sustain the case of the prosecution relying on YISAU V. STATE (1995) 2 NWLR (PT. 379) 636 at 644.

According to the Learned Counsel to the Appellant, the trial Court agreed that the scar inflicted was on the neck of deceased while witnesses said it was on the head and not the neck. He relied on pages 124 and 189 of the record of appeal. That the failure to produce autopsy report in this case is fatal to prosecution case in that the real cause of death was not established with certainly. He relied on the case of BEN V. STATE (2006) 16 NWLR (PART 1006) 594 and ONWUMERE V. THE STATE (1991) 4 NWLR (PT. 188) 428.

That evaluation of oral and documentary evidence by the trial Court was perverse. He urged the Court to resolve issue 2 in Appellant’s favour and that the appeal be allowed.

In response to the above submissions, the Learned Counsel to the Respondent PIUS AKUTAH, ACSC submitted that this Court cannot interfere with the evaluation of evidence carried by the trial Court and re-evaluate same where there is no miscarriage of justice. He relied on the cases of GADO V. STATE (1999) 12 SCNJ 140 and NKEBISI V. STATE (2010) ALL FWLR (PT. 521) 1407. That lower Court a considered judgment contained on pages 173 – 190. He acknowledge the ingredients of Murder and Culpable Homicide are similar. He relied on the case of ADAVA V. STATE (2006) 9 NWLR (PART 984) 152 at 167 and AKPA V. STATE (2007) 2 NWLR (PT. 1019) 500 CA.

That from the evidence before the lower Court there is no doubt that Appellant caused the death of human person with guilty knowledge. That the guilt of the Defendant could be proved by his confessional statement, circumstantial evidence or eye witness account relying on the case of IGABELE V. STATE (2006) 6 NWLR (PT. 975) 100.

He relied heavily on evidence of PW1 who is a sister of the Appellant as amply suggesting of a premeditated murder. He relied on pages 22 – 31 and 117 – 125 of the record to submit that a man is resumed to intend the natural consequences of his act. That on 14/10/2011, the Appellant committed the offence on deceased coupled with blood loss which resulted in stroke suffered by the deceased. That the vein of the deceased was affected and he was taken to St. Mary Hospital by her PW1 and was diagnosed as having partial stroke. He relied on pages 124 – 125 of the record. He also relied on PW2’s evidence a Police Officer who said the deceased personally reported Appellant and that the deceased had injuries on his head and was bleeding too much. That Exhibit D made by deceased was tendered without objection. That Appellant voluntarily reported himself to the Police. That PW2 said he visited the scene and found broken bottles marked Exhibit E on pages 131 of the record.

That the evidence of PW2 is not hearsay as per the case of EKPO V. STATE (2001) 7 NWLR (PT. 712) 292 A4T 30. He also submitted that evidence of PW4 was corroborated by evidence of PW1 and that PW5 tendered Exhibits G – Medical Certificate and Broken Bottles Exhibit H. That cause of death has been clearly shown. He stated that the Appellant’s Confessional Statement was tendered without objection. He referred to Exhibit 1 copied on page 39 of the record of appeal and pages 163 – 165 of the record. He submitted that the Court was entitled to rely on it because it was direct and positive. He relied on the cases of NWACHUKWU V. STATE (2002) FWLR (Pt. 123) 312 and AROGUNDADE V. STATE (2000) ALL FWLR (PT. 469) 409.

That even if it is conceded that Exhibits E and I cannot be relied upon to convict, the evidence given by PW1, PW2, PW5 and PW6 is sufficient to convict the Appellant because the evidence was unchallenged and uncontradicted. He also relied on Sections 28 and 29 of Evidence Act 2011 to submit that a confession made by an Accused at any time stating or suggesting that he committed the offence is admissible and that it does not matter whether such a confessions was made orally or in writing. He relied on the case FRN V. IWEKA (2013) 3 NWLR (Pt. 1341) 285 and IGBINOVIA V. STATE (1981) 2 SC 5 and Section 15 (4) of Administration of Criminal Justice Act.

That even if this Court decides to re-evaluate the evidence there is sufficient evidence on record of appeal to sustain the conviction.
On issue 2, the Learned Counsel to the Respondent submitted that the case of the prosecution is coherent and consistent enough as can be deduced from the records of lower Court. He disagreed with submissions of Appellant to the effect that PW1’s evidence was hearsay. On inconsistencies in prosecution’s case, the Learned Counsel to Respondent submitted that it not mere inconsistency that will vitiate a conviction as such contradictions in evidence of the Prosecution evidences must be shown to have occurred on a fundamental element of the case. He relied on the cases of OKPA V. STATE (2014) 13 NWLR (PART 1424) 225 at 269 and THEOPHILUS V. STATE (1996) 1 NWLR (PART 423) 139.

That proof of beyond reasonable doubt does not mean beyond every shadow of doubt. He relied on the case of AGBO V. STATE (2006) 6 NWLR (PART 977) 545 SC and UWAGBOE V. STATE (2007) 6 NWLR (PART 1031) 606 CA.

That retraction by Appellant of his confessional statement when he testified renders his evidence unreliable relying on the case of EGBOGHONOME V. STATE (1993) 7 NWLR (PT. 306) 383.

That in the absence of medical evidence. PW1’s evidence was sufficient to find Appellant guilty and that the trial Court was right in convicting and sentencing him. He relied on PRINCE WILL V. THE STATE (1994) 6 NWLR (PT. 353) 703.

That the attack on the medical report cannot avail the Accused as the cause of death could be inferred from surrounding circumstances. He relied on the case ofIGAGO V. STATE (1999) 6 NWLR (PT. 608) 581.

On causation the Learned Counsel to Respondent stated that a person must take his victim as he finds him. That unlike murder culpable homicide is provable by showing that Appellant knew that his act was likely to cause or triggers of a situation that many result in death as probable consequence. He relied on the case of ANYANWU V. STATE (2012) 16 NWLR (PT. 1326) 221 and ADEKUNLE V. STATE (1989) 5 NWLR (PT. 123) 505 among numerous cases cited.

That evidence of prosecution is Consistent that deceased (though hypertensive) “was hit in the head.” even though there might be scar son his neck. That this will not absolve the Appellant from guilt and that in any event Appellant did not deny hitting the deceased as alleged on the head.

That the procedural issue raised about admissibility of medical certificate Exhibit “G” and bottle Exhibit “H” cannot hold water as they were not raised at the lower Court. And that having been admitted the Court can rely on the bottle Exhibit “H” and the medical certificate. He relied on Section 14 of the Evidence Act in finally urging the Court to dismiss the appeal.

The major complaints of the Appellant are that the ingredients of the offence for which the Appellant was charged were not established and that there was perverse findings which have led to miscarriage of justice in this matter.

There is no doubt that the burden and standard of proof in any criminal proceedings are squarely on the prosecution. The onus of proof does not shift.
This is statutorily provided in Section 135(1)(2) and (3) of the Evidence Act 2011 as follows::
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject; to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) if the prosecution proves the commission of a crime, beyond reasonable doubt the burden of proving reasonable doubt is shifted on the defendant.”
This must be read along with Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999) as amended which says:-
“36 (5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty, Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
Thus the prosecution is under a duty to prove the offence for components or elements of the offense for which the Accused/Defendant is charged. This can be proved vide any of the following methods viz:
(a) By evidence of an eye witness or witnesses;
(b) Through the confessional statement of the accused or Defendant;
(c) Through circumstantial evidence.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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See the cases of:
1. SHUAIB’U ABDU V. THE STATE (2017) 7 NWLR (Part 1564) 171 AT 186 F-H per SANUSI, JSC who said:
“In all criminal cases, the burden of proof squarely lies on the prosecution which always has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of such proof is nothing less than, proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution such doubt shall be resolved in favour of the accused person. See: Famakinwa V. The State (2013) 7 NWLR (Pt. 1354) 597, Kala V. Potiskum (1998) 3 NWLR (Pt. 540) 1; David Abaje V. The State (1976) All NLR 139.”

It is relevant to recall the incident that allegedly led to the death of the deceased. According to the story narrated by PW1 she had quarrel with the Appellant in the middle of the night and their father the deceased was attracted to the scene of the fight to separate the fight and the deceased went back into his room. Soon thereafter PW1 was hearing the deceased screaming and shouting for help saying that the Appellant would kill him. That Defendant collected his hot drink bottle, broke it and stabbed the deceased on the forehead and that the Accused ran away leaving the father now deceased in a pool of blood. That deceased took himself to the Police station. The father was then taken to the Hospital where he was treated. That within 7 days of the deceased being discharged from the Hospital, the deceased suffered stroke and had memory loss. He (deceased) was then taken back to the teaching Hospital and when they could not give him a bed at the Teaching Hospital, the deceased was taken to St. Mary Private Hospital where PW1 said she took care of the deceased before he died on 6/11/2011 at about 11 am.

The Police later told her that her brother now the Accused had reported himself to the Police informing the latter he had killed his father PW1’s three (3) statements made in connection with the crimes were tendered as Exhibits A, B and C respectively.

Under Cross-Examination, PW1 said when the deceased went to the Hospital on 15/11/2011, his head was put on POP. She did not see the Appellant stabbed the deceased. The entire cross examination read:
“CROSS EXAMINATION
I made three statements. They are the same. I will be 30 years by this year. I have B.SC in Micro Biology. The house I was living in Gwagwalada was built by my father. The rooms are not ensuite. It’s a house of 6 rooms. You must come outside before urinating. There was no light when I had disagreement with my brother. His toilet is by his house while my apartment was opposite.
The accused was carrying a Iamb behind my window opened my curtain trying to throw some particles. I rose up and he said you this witch you have refused to die.
I also said I fainted after the beating. I came to consciousness after my late father came to my rescue. I was still conscious but I was only weak and unable to do anything. My father was screaming for help. I could not come out to rescue my father. He was shouting my son was killing me. I did not see him stab my father. After he separated me from the accused he went to his room. He closed the door but did not bolt it. While all this was happening, I was inside my own room. I heard the sound of the broken bottle which he used to attack my father. My mother is alive. She was in her house. She witnessed all that happened. My mother did not share the same room with my father.
My family has good relationship with the neighbours except the accused. Our compound is fenced but we share one gate with our neighbours. Before I got to the Hospital. the wound had been stitched on POP and a bandage on his head and so I cannot tell the gravity of the injury. I remember seeing him in a pool of blood. My father went to the station unaided. After the incident, the Police took my father to the hospital. The accused ran away that night. The accused was nowhere to be found.
He reported himself to the Police that he killed his father immediately our father died. I don’t know what he was treated of; the Doctors will answer that. I don’t know anything about Medical Report. All the while, I had been in school, the accused had been with my father.
The accused had never given my father peace. He has been with my father because nobody can accept him. My father was a healthy and sound man. He was younger than his age. He never visited hospital. After the injury, he lost his memory and was not able to speak well, he could not move his hands and legs. I am aware they took his statement. If I see the statement, I will recognize it. The accused used broken bottle on my father. The POP was on his forehead and the bandage was on his hand. One of the reasons why accused was trying to kill everyone is that he wants to inherit the property. The accused wanted the property even when my father was alive. We attend town or village meetings. The village meeting people are all afraid of him. My father had reported him several times.
Maybe if they carry out a Psychiatrist test, he may have some mental Imbalance. From the time of the incident to the time he died is less than 2 weeks. Born 20th July, 1939.
RE-EXAMINATION:
The accused was the only son.
He died about three weeks from 15th October – 6th November.
Prosecuting Counsel: That’s all for the witness.”
There was no autopsy report. The Appellant had contended that there ought to be autopsy report having regard to the interval between the alleged stabbing and death of the deceased.

I have carefully read the record of appeal and the judgment and I am of the view that there was no eye witness account to the stabbing of the deceased. PW1 admitted that much under cross examination. The particulars of the offence categorically stated that the Defendant now Appellant “stabbed your father Mr. Christopher Okeke on the head with a broken bottle which led to his death…”

In effect, the charge and its particulars directly stated that the deceased died as a result of stabbing with a broken bottle by the Appellant.

The law is settled that it is the charge and its particulars that must be proved by the prosecution and what is not contained in the particulars of the charge cannot be proved against the Accused/Defendant in a criminal case. See: FRN V. THOMAS ISEGHOHI (2019) 12 NWLR (PART 1685) 154 at 178 H To 179 A – D per PETER ODILI JSC who said:
“Indeed, from the findings of the Court of Appeal and the ensuring conclusion what comes to light is that an accused person cannot be convicted on what he was not charged with and no evidence in support such as the case in hand where there was no count in the charge on misappropriation of funds or financial recklessness or mismanagement ineptitude. Rather the charge on Money Laundering and Advance Fee Fraud and while the elements of financial recklessness or misappropriation or management ineptitude were the evidence led by the prosecution and so it cannot be said the offences charged were made out for which a conviction can be secured, as the appellant’s counsel urges the Court to do. This goes against the grain of what this Court had stated in Abidoye V. FRN. (2014) 5 NWLR (Pt. 1399) 30 at 55-56 thus:-
“Once a charge is laid, it is deemed that all the ingredients included in the particulars are needed to prove the charge and any ingredient omitted is not necessary. The prosecution cannot default in proving any ingredient included in the particulars of the offence charged, nor can he offer proof of an ingredient omitted in the particulars of the offences. Having considered what the Court below did in its findings and the conclusion and decision reached, there is no gainsaying that none of the ingredients of money laundering or advance fee fraud was proved by the prosecution and I acknowledge that the Court below was right in setting aside the decision of the trial Court and on its part upholding the no-case submission.”
See also PROF. BUAKAR BARABE V. FRN (2019) 1 (1652) 100 At 125 C – E.”

The evidence of PW4 is in sharp contradiction to evidence of PW1, PW2 and PW5 as to the cause of death of the deceased. It is very important to reproduce his evidence on Exhibit “G” the medical certificate. The evidence both in chief and under cross examination run thus:
“Sworn on the Holy Bible and states in English. I am Dr. Sopulu Jess Chineke. I reside in Gwagwalada, Opposite Radio House. I work at St. Mary’s Catholic Church. I have a Bachelors Degree in Medicine and Surgery.
I am a Medical Officer. I am supposed to make clinical diagnosis and institute treatment also follow up patients and interpret death Certificate and write them. Those are my basic duties. I can interpret a Death Certificate if I am given any. I have always had cause to interpret Death Certificates. It is my Chief Medical Director that asked through the case notes of late Onwe Christopher. He died in our hospital. The hospital issued a Death Certificate I went through the folder. If I see the death certificate, I can go through it and interpret some.
The Certificate was issued by Dr. Emeka Uba. We worked together for about a year and months before he left. He is no longer in the services of the hospital. The Direct cause Is right hemispheric celebro vascular accident which means stroke. The antecedent cause is hypertension. It connotes morbid conditions if any, given rise to the above cause. There is likely to be a precision to the stroke. The interval between the time of admission and death is one week. There is relationship between hypertension and stroke. Each of the conditions is emotionally unstable. Emotional instability caused by assault can be a direct or remote cause of stroke. By the history of deceased, he’s known to be hypertensive. Prosecuting Counsel: That’s all for the witness.
CROSS-EXAMINATION BY ACCUSED COUNSEL:
I don’t have my certificate here but I have my identity card. He shows it to Defence Counsel.
I have paid my practicing fees.
I am registered with Nigerian Medical Association (NMA). I have been practicing for the past 7 years. I had a father. He is late. It was riot heart failure that triggered the stroke. The patient was not diabetic. Lack of food cannot cause stroke. Onset does not mean the cause of injury. The onset means time of onset. Initially, he could not work upright but later regained his physical abilities.
At the time of admission, he suffered stroke. The folder contained the details that are necessary for the management of the patient.
When he came, a scar was noted on the neck and on further inquiry, it was revealed that he was assaulted two weeks prior to the time he came.
The injury could cause emotional instability. Emotional instability can worsen hypertension. There was no social history that worsened hypertension in this case.
The man orally gave his history.
Accused Counsel: That s all for the witness.
The said Exhibit “G” the medical certificate is copied on page 38 of the record and it reads:-
“ST. MARY’S CATHOLIC CHURCH HOSPITAL
P.O.BOX …
MEDICAL CERTIFICATE OF CAUSE OF DEATH<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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SURNAME ONWE FIRST NAME CHRISTOPHER AGE 73 YRS SEX M HOSPITAL 045860
OCCUPATION BUSINESS MAN ETHNIC GROUP IBO DATE OF ADMISSION 31-10-11 DATE OF DEATH 06-11-11
Direct cause Disease or condition directly leading to death, not the mode of dying such as heart failure, asthma, etc CAUSE OF DEATH A. PT HENSIPHERIC CVA Due to or as a consequence of B. HYPERTENSION DUE TO (or as a circumstance of) C. … BLOOD LOSS 2% PHYSICAL ASSAULT Appropriate intervl between onset and death
Antecedent causes Method condition if any giving rise to the … 1 (ONE)
UBAH NNAMDI E. stamped and signed
M. B. B. S (NIG) 09-11-2011.”

The Doctor talked of assault and scar on the neck. The evidence of PW4 and Exhibit “G&“ are not in tandem with the charge and its particulars.

The medical report stated loss of blood to be 2%. There is no evidence to show whether this was when the deceased was treated at the Hospital on 15/10/2011 or when deceased was admitted on 31st October, 2011 at St. Mary’s Hospital. The direct cause of death is stated to be stroke due to hypertension. Nothing was put in the column for “Antecedent causes” on Exhibit G.

I have read Exhibit I which the prosecution and lower Court considered to be a confessional statement made on 6/11/2011 and there is nothing in it admitting or acknowledging that the Appellant stabbed his father on the head with broken bottle. The statement was admitted as Exhibits “D” and “E”. What the Appellant said was that PW1 used broken bottle on him and he was struggling with her. In Exhibit “E” made on 6/11/2011 he said:
“… before I know she hit me with a bottle on my head. So when I was struggling to collect the bottle and I wanted to blow, I mistakenly blow my father and he sustain injury on the head. I did not use bottle on my father at all.”
In Exhibit “I” the Appellant also said:
“She equally carried complete bottle and hit my head and I was trying to collect the bottle from her and at the some time wanted to blow her and mistakenly the blow landed on my father’s head and because my body was full of blood as a result of bottle my sister hit on my head. I did not know that my father sustained any injury.”

To my mind, the above quoted portions of the Appellants statements do not admit of the elements or ingredients of the offence for which the Appellant was charged.

The Appellant also raised issue of causation as to whether even if it was admitted by him that he hit the deceased as alleged, whether it was actually the act of hitting the deceased that was responsible for deceased death three weeks later. The Appellant’s Learned Counsel submitted that the prosecution failed in the evidence of causal link as required by law to ground Appellant’s conviction.
The principle of causation or link in Criminal charge of murder is to the effect that the prosecution must show that the initial assault, attack or act of the Accused/Defendant in a Criminal case was or is responsible for the subsequent death or demise of the person attacked or caused injury who did not die immediately or so soon after the unlawful act of the Accused/ Defendant.
The principle has been explained and laid down in numerous cases. I will call in aid two of the decisions of the apex Court on the principle viz:
1. ERIC UYO V. ATTORNEY-GENERAL OF BENDEL STATE (1986) 1 NWLR (PART 17) 418 at 430 B – E per KARIBI – WHYTE JSC who said:
“The principle of causation dictates that an event is caused by the act proximate to it and in the absence of which the event would not have happened. Thus in this case death was caused by the infliction of injury by appellant which was proximate to his death. Section 311 of the Criminal Code provides:
“A person who does an act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.”
Section 312 has gone even further to deny the accused of any defence where death results from injuries inflicted by the accused, who did not take proper medical care or indeed ignored medical advice. So long as the cause of death is traceable to the Injury inflicted by the accused, he would be held criminally responsible – See R. V. Holland (1841) 2 M & W 351, R. V. Mcintyre (1847) 2 Cox. C.c. 379.
Section 312 provides –
“When a person causes a bodily Injury to another from which death results, it is immaterial that the injury might have been avoided by proper precaution on the part of the person Injured, or that his death from that Injury might have been prevented by proper care or treatment.”
The important consideration for determining responsibility is whether death of the deceased was caused by injuries he sustained through the act of the accused and not whether from the medical point of view death was caused by such injuries – See R. V. Effanga (1969) 1 All N.L.R. 339.”
2. FRIDAY AIGUOREGHIAN & ANOR V. THE STATE (2004) 3 NWLR (PART 860) 367 at 413 H 414 A – F per NIKI TOBI JSC of blessed memory who said:
“Let me take first the appeal of the 1st appellant. It zeros on the law of causation in our criminal jurisprudence. Around the terminology of causation is proximate cause, legal cause and direct cause, terms which are used synonymously. The expressions “immediate cause”, “effective cause” and causa causons are used to denote the last link in the chain of causation. There could be an intervening or supervening cause. An intervening or supervening cause denotes a cause that comes into active operation arising from negligence, even if that cause does not break the chain of causation.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In order to hold an accused criminally responsible, the chain of causation must not be broken. Once there is a broken link in the chain of causation, that broken link must be resolved in favour of the accused as it affects the actus reus of the offence. In other words, where the injury which caused the death is not the proximate , legal or direct cause of the death of the deceased, the benefit of doubt must be given to the accused. I can still go further. Where there is more than one possible cause of death, the benefit of doubt must be given to the accused because the available evidence in such a situation does not pin the accused down to the death of the deceased. This is because there is an intervening or supervening cause, which equivalents in Rome’s Latin home, are novus actus interveniens and nova interveniens respectively.

In Uyo V. Attorney-General, Bendel State (1986) 1 NWLR (Pt.17) 418 the Court held that (i) the principle of causation dictates that an event is caused by the act (being stabbed) cannot be linked to death of deceased vide stroke caused by hypertension more So when PW4, the medical doctor called to testify on Exhibit “G” said among other things that; “By the history of deceased he is known to be hypertensive” page 137 of record. And on page 138 where PW4 (the Doctor) said:
“There was no social history that worsened hypertension in this case. The man orally gave his history.”
The Respondent has not proved beyond reasonable doubt that it is/was the act of the Appellant that actually killed the deceased or contributed to the death of the deceased. The elements or ingredients of offence of culpable homicide contrary to Section 220 (a) and (b) punishable under Section 221 (a) and (b) of Penal Code have not been established against the Appellant.
The Appellant is entitled to be discharged and acquitted as the Respondent failed to discharge the burden placed on it under of the Evidence Act, 2011. There is no sentiments on the altar of justice. See: In DR. OLUBUKOLA ABUBAKAR SARAKI V. FRN (2018) 16 NWLR (PART 1696) 405 at 452 D – H, NWZE, JSC held as follows:
“Unlike mathematics where proof is attained through inflexible formulae an answers are arrived at with inviolable certitude, proof in criminal trials is attained against the background of the burden codified in Section 135(1) of the Evidence Act. This Section does not impose a duty on the accused person to purge himself of guilt. Rather, it imposes an obligation on the prosecution to prove the guilt of the accused person beyond reasonable doubt, Esangbedo V. State (supra); State V. Azeez and Ors. (supra); Ozaki and Ors. V. State (supra); Alabi V. The State (supra), Solola V. The State (supra). This is an offshoot of the impregnable canon ordained in Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999. This section guarantees the right to the presumption of innocence, a fundamental principle of most just penal laws, often couched in the ancient maxim in dubio pro reo. This maxim dictated the constitutional principle in the said Section 36(5) of the 1999 Constitution. It provides that:
Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts. The Courts have interpreted the section as imposing the burden of proving the guilt of an accused person on the prosecution, Obiakor V. State (2002) 10 NWLR (Pt. 776) 612. The duty thus imposed on the prosecution to prove the case beyond reasonable doubt. This is axiomatic. It is indeed well-settled under Nigerian criminal Jurisprudence, Bello V. State (2007) 10 NWLR (Pt. 1043) 564, 585, Oladele V. Nigerian Army (2004) 6 NWLR (Pt. 868) 166. This is so because our criminal justice is accusatorial in nature. In our system, trials are initiated and sustained by accusation rather than by inquisition, Uso V. C.O.P. (1972) ANLR 825, (1972) 11 SC 37, Elias CJN.”

The two issues nominated by the Appellant are resolved in his favour. Consequently, Appellant’s appeal has merit and it is allowed.

In the result, the judgment of High Court of Federal Capital Territory delivered on 8th December, 2016 (Coram KEKEMEKE J.) is hereby set aside. The Appellant is hereby discharged and acquitted of the offence for which he was charged.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read the draft of the judgment just delivered in Court by my learned brother Peter Olabisi lge, JCA. I am in agreement with the reasoning and the conclusion, my learned brother has stated elaborately the facts of this case and I adopt them for the little piece I want to write.

The offence for which the appellant was convicted and sentenced to death by hanging is that of culpable homicide under Section 220 (a) & (b) of the Penal Code. The victim in the charge is the father of the appellant. The plea of the appellant was taken and the trial went full blast. The prosecution called witnesses. The most prominent of the witnesses is the PW4. There was a big chasm between the testimony of the PW4 and those of the PW1, PW2 and PW5 as to the cause of death. In murder or culpable homicide cases, it is of primary importance that the cause of death be ascertained with minimal discrepancies. Cause of death is the major or prime determinant of the culpability of the person accused of the offence of culpable homicide. In the case of Ayedatiwor V. State (2018) 11 NWLR (Pt. 1631) 542 Ariwoola, JSC defined the offence of murder which is the same with culpable homicide punishable with death under the Penal Code as follows:
“Murder has been defined as; “The taking of human life by a person who either: (a) has a malicious and Willful intent to kill or do grievous bodily harm or; (b) is wickedly reckless as to the consequences of his act upon his victim”. Therefore, for murder, the suspect must have an evil intent, that is, a criminal intent, although, it is not necessary that there should be an intent to kill. See: R. V. Vickers (1957) 2 A; ER 741 at 744; Yekini Afosi V. The State (2013) 12 SCM (Pt. 2) 28 (2013) 13 NWLR (Pt 1371) 329; (2013) 6 – 7 SC (Pt. 111) 37; (2013) 6 SCNJ (Pt. 1) 1, (2014) All FWLR (Pt. 725) 268.”
The ingredients of this offence are precisely listed in the case of Idiok V. State (2008) 13 NWLR (Pt. 1104) 225, as follows:
“it is now firmly settled that for the prosecution to succeed in a murder charge under Section 319(1) of the Criminal Code (as in the instant case), it must prove beyond reasonable doubt that: “(i) there was a killing. (ii) the killing was unlawful as prohibited by Section 316 of the Criminal Code. (iii) it was the act or omission of the accused person that caused the death of the deceased. (v) the accused intended to cause the death of the deceased. See the case of Grace Akinfe V. The State (1988) 3 NWLR (Pt. 85) 729 @ 745; (1988) 7 SCNJ 226; Okoro V. The State (1988) 5 NWLR (Pt. 94) 255; (1988)12 SCNJ, 191; Ogba V. The State (1992) 2 NWLR (pt. 222) 164; (1992) 2 SCNJ, 106; Akpan V. The State (1994) 9 NWLR (Pt. 368) 347; (1994) 12 SCNJ 140 and Abogede V. The State (1996) 4 SCNJ 223 just to mention but a few. In other words, where a person is charged with the offence of murder, the prosecution must prove: (a) Whether the person alleged to have been killed is dead. (b) the cause of death and (c) whether any act of the accused person is the cause of his death. See the case of Sule Ahmed (alias Eza) V. The State (2001) 18 NWLR (Pt. 746) 623 @ 641 cited and relied on in the Appellant’s Brief. (It is also reported in (2001) 12 SCNJ 1).”
The burden is on the prosecution to prove these ingredients beyond reasonable doubt. Okoro, JSC, in Ekpo V. State (2018) LPELR- 43843 (SC) while considering the burden of proof in Criminal matters, held that:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. As was held by Oputa, JSC, in Bakare V. The State (1987) 1 NSCC Vol. 18 P. 267 at 279, the burden is on the prosecution to prove its case beyond reasonable doubt with emphasis on “reasonable”. That not all doubts are reasonable. It was further assessed that reasonable doubt will automatically exclude unreasonable doubt.

Fanciful doubt, Imaginary doubt and speculative doubt i.e a doubt not born out by the facts and surrounding circumstances of the case. Reasonable doubt does not eliminate the possibility of any doubt whatsoever, including remote possibilities as was expressed by Denning J. In Miller V. Minister of Pensions (1974) 2 All ER 373 as follows: – “The law will fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable, the case is proved beyond reasonable doubt. See also Nwaturuocha V. The State (2011) LPELR- 8119 (SC), (2011) 6 NWLR (pt. 1242) 170, Akinlolu V. The State (2015) LPELR- 25986 (SC).”
Proof beyond reasonable doubt for sure does not mean also proof beyond every iota of doubt. The concept entails the establishment of all the ingredients of the offence charged without leaving any solid or obvious inference of doubt as to whether there are prevalence of issues of doubt as to the proof of the ingredients of the offence.

A look at the evidence of the witnesses for the prosecution will show that there are contradictions in the evidence of PW1, PW2 and PW5 with the evidence of the PW4 as to the cause of death. Since this discrepancy have not been cleared as to the cause of death, it is unsafe to convict the appellant. It is for this reason and the fuller reasons advanced by my learned brother in the lead judgment that I also find merit in this appeal. The appeal is hereby allowed. The judgment of the lower Court is set aside. I abide by the consequential order made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I agree.

Appearances:

ADEOLU SALAO with him, ADEOLU OBADAIRO For Appellant(s)

ANIEKAN O. EKONG For Respondent(s)