SANDA v. COP (2020)

SANDA v. COP

(2020)LCN/15460(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/A/CR/246/2020

RATIO

EVIDENCE: CIRCUMSTANCES IN WHICH MEDICAL EVIDENCE CAN BE DISPENSED WITH

It is trite law that it is not in all cases that medical evidence is indispensable. Where there are other facts or pieces of evidence which sufficiently show the cause of death to the satisfaction of the Court, for instance when the cause of death is instantaneous or unequivocal referable to the criminal assault by the accused, medical evidence is not necessary. But those instances are when the cause of death is instantaneous or unequivocal referable to the criminal assault. For instance, when the victim or criminal assault died almost immediately on the spot. Lori v. State (1980) 8 – 11 SC 81 referred to, Ariche v. State (1993) 6 NWLR (Pt. 302) 752 distinguished, Zubairu v. State (2015) 16 NWLR (Pt. 1486) 504 followed). See Folorunso v. State (2020) 15 NWLR (Pt. 1746) 33. PER STEPHEN JONAH ADAH, J.C.A.

CRIMINAL PROCEEDING: BURDEN OF PROOF

CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE

In the instant case, the offence for which the appellant was convicted is that of culpable homicide punishable with death under Section 221 of the Penal Code. The ingredients of this offence are from the law creating the offence well outlined. The ingredients are:
(a) The deceased died
(b) That the death of the deceased resulted from the acts of the defendant; and
(c) That the act of the defendant was intentional with the knowledge that death or grievous bodily harm was the probable consequence.
See the cases of State v. Danjuma (1997) LPELR 3216 (SC); Oguno v. The State (2011) 7 NWLR (Pt. 1246) 314, Gira v. The State (1996) 4 NWLR (Pt. 443) 375, Adava v. The State (2006) 9 NWLR (Pt. 984) 152, Akpa v. State (2007) 2 NWLR (1019) 500, Uwagboe v. State (2007) 6 NWLR (Pt. 1031) 606.
It is trite law that the ingredients must co-exist before a conviction can be secured particularly as failure to establish any of the ingredients will result in an acquittal. PER STEPHEN JONAH ADAH, J.C.A.

DUTY OF COURT: EVALUATION OF EVIDENCE

The duty of the trial judge as has been well outlined in several decisions of this Court and the Supreme Court, does not admit of any extraneous consideration.
A trial Judge is to evaluate evidence and ascribe probative value to it. Where a trial judge has done this, the Appellate Court has no business in substituting its views for its own. The fundamental principle is that in an adversary system of trial, the judge or Court must keep a detached posture and should not only remain but appear to be an impartial arbiter between the contesting parties. In the case of Adeleke & Ors. v. Iyanda & Ors. (2001) LPELR-114(SC), Uwaifo, JSC, held that a trial Judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case, and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law: see Bornu Holdings Ltd. v. Bogoco (1971) 1 All NLR 324 at 330; Adeniji v. Adeniji (1972) 4 SC 10 at 17; Shodeinde v. The Registered Trustees of the Ahmadiyya Movement- in-Islam (1983) 2 SCNLR 284 at 320. When he fails in this regard, it is an invitation to the appellate Court to intervene and if the appellate Court can make its own finding from the evidence available, it will interfere with the findings of the trial Judge since it is in as good a position as the trial Court on that score: see Fatoyinbo v. Williams (alias) Sanni (1956) SCNLR 274 at 275; Lawal v. Dawodu (1972) 1 All NLR (Pt. 2) 270 at 286; Okpaloka v. Umeh (1976) NSCC (vol. 10) 519 at 533. PER STEPHEN JONAH ADAH, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

MARYAM SANDA APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory, Abuja, delivered on 27th January, 2020, Coram: Y. Halilu J.

The appellant herein was first arraigned before the trial Court on the 24th of November, 2017, on a two count charge dated 20th November, 2017. Thereafter, the said charge was amended by the extant Amended Charge of Two Counts on which the appellant together with three others were jointly arraigned before the trial Court on the 14th day of December, 2017. Only count one of the said amended charge affects the appellant on which she pleaded not guilty.

The count one of the Amended Charge which affects the appellant reads as follows:
“That you Maryam Sanda, Female, Adult of No. 4 Pakali Close, Wuse 2 Abuja, on or about the 19/11/2017 at about 0150 hours at No. 4 Pakali Close, Wuse Zone 2, Abuja within the jurisdiction of this Honourable Court, did commit the offence of culpable homicide punishable with death. In that you caused the death of one Bilyaminu Bello Halliru, male adult of No. 4 Pakali Close, Wuse 2, Abuja by stabbing him on the chest and other parts of the body with a knife and other dangerous weapons which eventually led to his death and you did so with the knowledge that his death would be the probable and only the likely consequence of your act, you thereby committed an offence punishable under Section 221 of the Penal Code Law”.

The respondent in order to prove his case called six (6) witnesses i.e PW1 – PW6 and tendered seven (7) Exhibits marked as Exhibits A – G.

Thereafter, the appellant opened her defence by testifying for herself and called one other witness without tendering any exhibit.
In a considered judgment delivered on the 27th January, 2020, the trial Court convicted the appellant and sentenced her to death by hanging.

Dissatisfied with the said Judgment, the appellant appealed to this Court vide a Notice of Appeal containing twenty (20) Grounds (see pages 775 – 797 of Vol. II of the Record of Appeal), transmitted to this Court on the 19th day of February, 2020.

In line with the rules of this Court, parties filed and exchanged their respective briefs of argument.

Joe-Kyari Gadzama, SAN, counsel for the appellant in the Appellant’s Brief of Argument filed on the 23rd day of April, 2020, distilled nine issue for the determination of the appeal. These issues are:
1. Whether the failure of the trial Court to determine the Appellant’s objection by a motion on notice challenging the competence of the charge which affects the jurisdiction of the trial Court, is not a breach of the appellant’s right to fair hearing and an exhibition of bias against the appellant. (Distilled from Ground 1).
2. Whether the Honourable trial Court’s assumption of the role of an investigator contrary to its constitutional duty to evaluate the evidence before it, did not occasion a miscarriage of justice. (Distilled from Ground 2 and 3).
3. Whether having regard to the totality of evidence before the Honourable trial Court, the respondent proved beyond reasonable doubt, the commission of the offence of Culpable Homicide punishable with death and the Honourable trial Court rightly found the appellant guilty of the said offence. (Distilled from Grounds 4, 12, 15, 16, 17 and 20).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether the Honourable trial Court did not misapply the doctrine of last seen to the facts and circumstances of the matter before it and therefore arrived at a wrong conclusion as to the guilt of the appellant. (Distilled from Ground 5).
5. Whether the Honourable trial judge was not wrong to have held that the testimony of the appellant before it was manifestly unreliable because she did not reproduce her extra judicial statements with exactitude in her evidence despite the fact that she never denied the said statements nor did she contradict them in her evidence. (Distilled from Ground 13).
6. Whether the Honourable trial judge was not wrong to have admitted Exhibit G in evidence and placed reliance on same, the maker not stated to have been unavailable, but not called as a witness, despite objection to the admissibility of same by the appellant. (Distilled from Ground 11).
7. Whether the Honourable trial judge was not wrong to have based his finding of guilt of the appellant on the materially contradictory and hearsay evidence of the prosecution witness. (Distilled from Grounds 6, 7, 8, 9 and 10).
8. Whether the Honourable trial judge having held that the evidence of the prosecution was insufficient, could rightly have convicted the appellant on the offence of Culpable Homicide. (Distilled from Ground 18).
9. Whether the Honourable trial Court was not wrong to have delved into the realm of metaphysics, sentiments and emotion to reach a decision to convict the appellant as opposed to relying on empirical evidence. (Distilled from Grounds 14 and 19).

In response, James Idachaba, Esq., counsel for the respondent adopted the Nine (9) issues as formulated by the appellant’s counsel for the determination of this appeal in the respondent’s brief filed on the 18th day of May, 2020.

This appeal will therefore, be determined on the issues as formulated by the appellant. I now start with issue one:
Issue One:
This issue is – whether the failure of the trial Court to determine the appellant’s objection by a motion on notice challenging the competence of the charge which affects the jurisdiction of the trial Court, is not a breach of the appellant’s right to fair hearing and an exhibition of bias against the appellant. Counsel for the appellant while arguing this issue submitted that the appellant at the trial Court filed a Motion on Notice dated 7th February 2018, challenging the competence of the charge, on the ground that it is incompetent and robs the trial Court of its jurisdiction to entertain the matter. (pages 211-216 of Vol. I of the record of Appeal). The respondent also filed a Counter-Affidavit in opposition of the said motion of the appellant challenging the competence of the charge on 7th March 2018. (pages 390-404 of Vol. I of the record of appeal). The trial Court on March 19, 2018 held that ruling will be delivered at the conclusion of the trial (pages 585 Vol. II of the record of appeal). At the conclusion of the trial, the trial Court delivered its judgment on the case on 27th January 2020 but did not deliver any ruling on the Motion on notice of February 7th 2018 challenging the competence of the charge.

Counsel stated that it is a principle of the administration of justice to let a party know the fate of any application brought before the Court. He cited the cases of The Registered Trustees of the Living Bread Christian Center v. Lt. Col S.T. Olubobokun (Rtd.) (2017) 1 NWLR (Pt. 1545) PG 1 at PP 28-30 Paras E-A; Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) PG 529 Paras A-D; Newswatch Communication Ltd. v. Atta (2006) 12 NWLR (Pt. 993) Pg. 144 Paras. E-F.

Counsel submitted that the trial Court having heard the application and that it would deliver the said ruling at the end of the trial, is duty bound to deliver it. He maintained that a Court of law which has constitutional duty to adjudicate on dispute between competing interest has the legal duty to hear and determine all applications before it. That the trial Court ought to have delivered the ruling to determine whether the charge before it was competent or not, and also determine whether the Court has jurisdiction to entertain same before delivering its judgment on 27th January 2020. He cited the cases of The Registered Trustees of the Living Bread Christian Center v. Lt. Col S.T. Olubobokun (Rtd.) (Supra) and Kotoye v. Saraki (1991) 8 NWLR (Pt. 211) Pg. 638 at Pg. 649.

Furthermore, that the application before the trial Court bothers on the jurisdiction of the Court. It is a settled principle of law that jurisdiction is the bed rock of the Court and ought to be decided upon. He relied on the case of Egharevba v. Eribo (2010) 9 NWLR (Pt. 1199) Pg. 434-435 Paras H-A. The trial Court is duty bound to determine the issue of jurisdiction as same will affect its competence to entertain the matter before it.

Counsel finally submitted that the failure or refusal of the trial Court to deliver the said ruling in respect of the Application is an infringement of his Right of fair hearing. Therefore, the judgment delivered by the trial Court, having failed to determine the said Motion on Notice on the competence of the charge before the trial Court respectfully ought to be set aside. He relied on the case of Audu v. FRN (2013) 5 NWLR (Pt. 1348) Pg. 397 at Pg. 410 Para F.
He urged this Court to resolve this issue in favour of the appellant.

In response, counsel for the respondent while canvassing this issue submitted that the failure or omission by the lower Court to rule on the appellant’s motion is not in any way fatal to the outcome of the substantive judgment against the appellant delivered on 27th January 2020. Assuming but not conceding that Section 396 (2) of the Administration of Criminal Justice Act, 2015 imposes a statutory duty on a trial Court to consider along with the substantive issues and a ruling thereon made at the time of delivery of judgment for any objection to the validity of the charge or information which the defendant may have raised in the course of trial, the Act did not provide any consequences for non-compliance. That the said Section 396(2) of the ACJA, 2015 only provides a procedural guide and as such, non-compliance as in the instant case cannot vitiate the substantive judgement delivered at the conclusion of the trial.

Counsel submitted that in the event this Court has a contrary view on the import of the non-compliance with the provisions of Section 396(2) ACJA, 2015 by the trial Court at the time of delivery of the judgment, this Court can invoke its general powers under Section 15 of the Court of Appeal Act, 2014 (amended) to save the judgment. Counsel urged this Court to resolve this issue against the appellant.

Let me say with dispatch that Section 15 of the Court of Appeal Act is under Part II of the Act dealing with Civil cases. Section 13 of the Act, makes that part particularly Section 15 to be applied to the Civil Appeal only. The parties have argued extensively on the issue of failure of the trial Court to deliver ruling on the Motion argued by the parties and which Motion was a challenge to the competence of the charge against the appellant. Section 396(2) of the Administration of the Criminal Justice Act (ACJA) 2015 is in focus. This law provides under Section 396 (2) as follows:
(2) After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgment provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment.
This law is clear in its text and intendment. It is meant to allow a criminal trial to go on specially without being clogged with objections and other tactics normally deployed by accused persons to foist delay in the trial. By this, the law gives the defendant opportunity to raise objection as to the validity of the charge at any time after the plea has been taken and the defendant can raise this objection before the judgment of the Court in the case. The law however, made it mandatory that the objection taken should be considered along with the merit of the case and a ruling is made of the objection at the time of judgment. The provision allows for speedy trial of cases and is meant to obviate the difficulties often encountered by trial Courts which are most often bogged down by interlocutory appeals filed by defence counsel in order to stultify proceedings and if possible truncate trials of accused person. See the case of Destra Investments Ltd v. Federal Republic of Nigeria (2018) 8 NWLR (Pt. 1621) 335. The appellant in this appeal truly raised by way of a Motion on Notice an objection challenging the competence of the charge and that the incompetence robbed the trial Court of the jurisdiction to entertain the matter. Issues were joined on the Motion. The Motion was heard by the trial Court. The trial Court deferred the ruling to the conclusion of the trial. This ruling was not delivered by the trial Court. The failure of the trial Court to deliver the ruling is no doubt contrary to the provisions of Section 396(2) of ACJA. The expectation of this law is that any interim or interlocutory issue of competence of the charge raised by the defendant be determined at the conclusion of hearing and at the time of judgment of the Court. In the instant case, the charge is very serious one. It is a charge of culpable homicide punishable with death under Section 221 of the Penal Code. The question then is this, since the trial Court heard the objection and failed to deliver a ruling on whether the charge is a competent or not, what is the justifying answer to the lapses of the trial Court? The point to consider is the fact that the Motion challenging the competence of the charge was filed and heard. Since the parties joined issues on the Motion and it was heard by the Court, the best interest of justice will not be served if the Court orders a retrial. In fact, retrial will mean going through the trial again. This no doubt will not only be onerous, tasking to the Court and the parties, it will run against the spirit of this law and Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which required the right of the appellant to speedy trial. In a situation such as this, the interest of justice will be better served if this Court would activate its inherent powers to consider the Motion which was heard and reserved for ruling by the trial Court. The inherent powers of this Court in Section 6(6)(a) and (b) of the 1999 Constitution (as amended), shall extend to all inherent powers and sanctions of a Court of law. The Constitution provides thereunder as follows:
(6) The judicial powers vested in accordance with the foregoing provisions of this section –
(a) shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law;
(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.
This in liberal terms is the foundation of inherent powers/jurisdictions of the Court. The Court is mandated to exercise the full plenitude of judicial power in all matters concerning the administration of justice in general. In the case of Akilu v. Fawehinmi (No. 2) 1989 LPELR – 339 (SC), the Supreme Court held that:
“…inherent jurisdiction or inherent power, (as it is more commonly called) of Court is that which is not expressly spelt out by the Constitution, or in any statute or rule but which can, of necessity, be invoked by any Court of record to supplement its express jurisdiction and powers. It is a most valuable adjunct to the express jurisdiction or powers conferred on our Courts of record by the Constitution, any law, or rule of Court.”
This is more appropriate an authority than Section 15 of the Court of Appeal Act. Section 15 of the Court of Appeal Act deals with Civil Matters. The contention of the appellant in the reply brief on this cannot be faulted. Section 15 of the Court of Appeal Act, 2004 is only applicable to Civil appeals NOT criminal appeals. This I now set out to do in the interest of justice.

The Motion on Notice filed by the appellant is at pages 209 to 212 of the Record of Appeal. For reasons of bringing closer for consideration I here now reproduce the body of the Motion as follows:
TAKE NOTICE that this Honourable Court shall be moved on the …day of …….2018 at the hour of 9 0’clock in the forenoon or so soon thereafter as the counsel may be heard on behalf of the Defendants/Applicants praying for the following:
1. An Order of this Honourable Court for a declaration that the charge against the Defendants is incompetent, null and void.
2. An Order of this Honourable Court quashing the charges against the Defendants/Applicants, same being incompetent, null and void.
3. An Order of this Honourable Court granting the Defendants/Applicants adequate time and facilities for the preparation of their defence to wit: directing that Complainant to furnish or grant Defendants unhindered access to all materials relevant to this case including the following:
(i) All Statements made by all the Investigating Police Officers at the Maitama Police Divisional Headquarters during the course of investigating the complainant leading to this Charge.
(ii) All Statements made by the Defendants to the Complainant during the course of investigating the complaint leading to this Charge.
(iii) All Statements made by any person during the course of investigating the complaint leading to this Charge whether or not such person is proposed to be called as a Prosecution witness.
(iv) Coroner’s report on the death of the deceased.
(v) Access to for the purpose of inspection and forensic analysis by Defendant’s forensic experts, original copies of all photographs taken during the course of investigating the complaint leading to this Charge.
(vi) Access to for the purpose of inspection and forensic analysis by Defendant’s forensic experts, the alleged weapons used in the commission of the alleged offence of culpable homicide to wit: knife and broken pieces of ceramic plates or any other such item.
(vii) Access to for the purpose of inspection and forensic analysis by Defendants’ forensic experts, ‘Scrap iPhone’ as referred to in the Complaint’s additional list of exhibits accompanying the instant charge.
(viii) Access to for the purpose of inspection and forensic analysis by Defendants’ forensic experts, Clothes with blood stain’ as referred to in the Complainant’s additional list of exhibits accompanying the instant charge.
(ix) Access to for the purpose of inspection and forensic analysis by Defendant’s forensic experts, ‘Compact Disk ROM (CD) as referred to in the Complainant’s additional list of exhibits accompanying the instant charge.
(x) Any other material relating to or connected with the facts, incident, complaint or particulars lading to this charge whether or not the Complainant considers such material relevant or not.
4. An Order of this Honourable Court directing Complainant to furnish Defendants/Applicants with all the items listed in prayer 2 (i) – (iv) above not later than 14 days before the date next adjourned for the hearing of the instant charge.
5. An Order of this Honourable Court directing Complainant to grant Defendants/Applicants unhindered access for the purpose of inspection all materials listed in prayer 1(v) – (x) above not later than 14 days before the date next adjourned for the hearing of this Charge.
AND Take Further Notice that the grounds upon which this application is predicated are as follows:
GROUNDS UPON WHICH THE RELIEF IS SOUGHT:
1. The 1st Defendant is standing trial before this Honourable Court on a charge of culpable homicide punishable with death for allegedly causing the death of one Bilyaminu Bello Halliru.
2. The 2nd, 3rd and 4th Defendants are standing trial before this Honourable Court on an allegation that they did intentionally cause evidence of 1st Defendant’s alleged offence to disappear.
3. The trial of the Defendants is predicated upon a Charge filed at the instance of the Commissioner of Police CIID Federal Capital Territory Command.
4. By Section 348(1) of the Administration of Justice Act, 2015 the proper procedure for commencing a criminal trial before this Honourable Court is by way of Information only.
5. By Section 359 (1) & (2); 376 (1), (2), (3), (7)& (8) of the Administration of Criminal Justice Act, 2015 a Criminal Information of alleged culpable homicide and accessory after its facts as in the instant charge can only be initiated by the Attorney General of the Federation after the presentation of a mandatory report that there is a prima facie case against the Defendants.
6. The instant Charge having not been properly commenced is incompetent.
7. The incompetence of the instant charge robs this Honourable Court of the jurisdiction to entertain same.
8. By virtue of Section 36 (6) – (b) of the 1999 Constitution of the Federal Republic of Nigeria the Defendants are entitled as a Fundamental Human Right the provision of adequate time and facilities to prepare for their defence.
9. The Proof of Evidence accompanying this Charge does not contain adequate facilities for the preparation of Defendants’ Defence.
10. The failure of the Defendant to provide Defendants with adequate facilities for their defence robs the Defendants of their constitutionally guaranteed right to a fair hearing and equality of arms.
11. This Honourable Court has the powers to grant the orders herein sought.
Dated this 6th day of February, 2018.

The Motion of the appellant at the trial Court is from the record before us, is two pronged going by the reliefs. Reliefs 1 and 2 deal with an Order of the trial Court declaring the charge incompetent, null and void and quashing the charge on the ground that it was incompetent null and void. These two reliefs are primarily directed at the validity of the charge.
The second segment of the Motion has relief 3 which deals with the appellant’s right to adequate time and facilities for the preparation of his defence under Section 36(6) (b) of the 1999 Constitution of Nigeria as amended. This second segment has nothing much to do with the validity or otherwise of the charge. It is the provision of Section 396(2) of ACJA. The second segment deals with the Constitutional right of defence pursuant to the right of the appellant to fair hearing. It follows therefore, that the limb of the Motion which is of consequence within the concept of the application of Section 396(2) of ACJA, is the 1st segment which comprises of reliefs 1 and 2 of the Motion. I think, with all sense of seriousness, a point of emphasis need be made at this point that the Court is duty bound to do justice in every case brought before it according to law, not according to sentiments. Procedural laws are meant to be applied by both the accuser and the accused to achieve justice.

The law does not leave an open door for inadequacies and irregularities. The law particularly in criminal trials laid out elaborately the procedure for trial of offenders. In the instant case, the Administration of Criminal Justice Act, 2015 laid out procedure to be adopted to enhance speedy trial of offenders. While speed is required in criminal trials, I say with utmost sense of responsibility that excessive speed kills. Parties must therefore, conduct criminal trials by following to the hilt the rules of procedure. This is not provoking adherence to technicalities but promoting due process and justice according to law. In the instant case, what is anticipated and tolerated by Section 396 (2) of ACJA is objection to the validity of the charge which is what the first segment of the Motion on Notice filed on 7th February, 2018 was out to achieve. The second segment of the said Motion which is out to achieve the right of the appellant to adequate time and facilities for the preparation of her defence under Section 36(6)(b) of the 1999 Constitution, ought to be separately filed or detached from the issue of validity of the charge for the trial Court to consider before the commencement of hearing not at the end of hearing of the charge against the appellant. The Court must in all circumstances keep their focus on the rights allowed a person accused in every case involving trial of an offender such as in the instant case. It was in gross error for the two reliefs to be lumped and heard together before the trial Court. The only strong issue in this aspect at this stage is the fact that the issue of the appellant’s right under Section 36(6)(b) is not raised in this appeal. It is therefore, not an issue raised in this appeal and the Court is not permitted to raise any ground of appeal for the appellant. This Court therefore, has no business considering reliefs 3 of the said Motion at it was apparently abandoned in this appeal. That relief is accordingly discountenanced in this appeal.

The only relief that was argued is the relief dealing with the competence of the charge. I shall therefore look into the said relief anon.

The Motion is supported by a 4-paragraped affidavit deposed to by one Aminatu Ali-Mustapha, a Legal Practitioner in the law firm of J.B. Daudu & Co. She deposed from paragraphs 3(iii) to 3(x), as follows:
iii. That the trial of the Defendants is predicated upon a charge filed at the instance of the Commissioner of Police CIID Federal Capital Territory Command. A copy of the Amended charge is annexed herewith and marked Exhibit ‘A’.
iv. That the proper procedure for commencing a criminal trial before this Honourable Court is by way of information only.
v. That Criminal Information of alleged culpable homicide and accessory after its facts as in the instant charge can only be initiated by the Attorney General of the Federation after the presentation of a mandatory report that there is prima facie case against the Defendants.
vi. That the Complainant is bound to forward the Investigation report of this charge to the Attorney-General of the Federation for advice.
vii. That the Complainant failed to forward the Report of Investigation in this case to the Attorney General of the Federation for advice.
viii. That there is no written advice of the Attorney General of the Federation in this case.
ix. That the instant Charge having not been properly commenced is incompetent.
x. That incompetence of the Charge robs this Honourable Court of the jurisdiction to entertain same.

From the processes filed in the Motion on Notice, the complaint or quarrel of the appellant with the charge upon which she was tried has to do with the form of the proceedings against her. The complaint is that the appellant ought to be brought to Court on an Information and not through charge sheet. The law is not clumsy or obscure as to the methods by which criminal proceedings may be instituted in the trial Court. By Section 109 of the ACJA, 2015 (as amended) the mode of instituting criminal proceedings is prescribed as follows:
109. Subject to the provisions of any other law, criminal proceedings may, in accordance with the provisions of this Act, be instituted –
(a) in a Magistrate Court, by a charge or a complaint whether or not on oath or upon receiving a First Information Report;
(b) in a High Court, by information of the Attorney General of the Federation, subject to Section 104 of this Act;
(c) by information or charge filed in the Court after the defendant has been summarily committed for perjury by a Court under the provisions of this Act;
(d) by information or charge filed in the Court by any other prosecuting authority; or
(e) by information or charge filed by a private prosecutor subject to the provision of this Act.
By this provision, it is expressly and excellently set that a charge sheet or information is the originating process by which a criminal proceeding is instituted in Court and such charge or information must comply with both the substantive and procedural law. See also the case of Igwe Cornelius Nomeh v. The State (2017) LPELR – 43444(CA). The charge sheet used for the initiation of this case is not a procedure that is antithical to what is required by the law for initiation of criminal proceedings in the lower Court.
It sounds incredible that the appellant in this appeal/case was not attacking the charge over its components but over the fact that she ought to be brought to Court on an information and not a charge sheet as was deployed in this case. This is akin to the appellant as an accused person choosing which form he should be charged to Court. The law gives the respondent a latitude of choice when it comes to the mode of initiation of a criminal trial. It must be expressly stated that the appellant as an accused person has no say in law, over what form of initiation the respondent nominate to bring her before the trial Court once it is legitimate. The objection raised by the appellant before the trial Court therefore, has no merit and the trial Court ought to have ruled it out by its dismissal. The charge was properly before the trial Court. This therefore, gives us the opportunity to hold that the objection is lacking in merit and it is hereby dismissed. The charge is not incompetent. Issue one therefore, is resolved in favour of the respondent.

Issue Two:
This issue is – whether the Honourable Trial Court’s assumption of the role of an investigator contrary to its constitutional duty to evaluate the evidence before it, did not occasion a miscarriage of justice.
Counsel for the appellant while canvassing this issue referred this Court to the judgment of the trial Court which was reproduced at paragraphs 5.01 & 5.02 at page 7 of the appellant’s brief of argument. He stated that the position of the law is settled that investigation is not the function of the Court. He cited the cases of State v. Nwuzor (2018) LPELR-44949 Pg. 35 Para B-E; Ilori v. Tella (2006) 18 NWLR (Pt. 1011) Pg. 267 at PG 289 Paras B-C; First Bank of Nigeria Plc v. Mamman (Nigeria) Limited 92 (2001) FWLR (Pt. 31) Pg. 2890 at PG 2906 Para E.

He maintained that the trial judge did not limit himself to the evidence before it but clearly assumed the role of an investigator in reaching his decision. That the trial judge went outside the evidence proffered before him. In assuming the role of the police and investigation, the counsel referred this Court to the judgment of the trial Court which we reproduced in the appellant’s brief of argument at pages 7 & 8 paras 5.05-5.07.

Counsel stated that the duty of the trial Court is to evaluate evidence before it and not to delve into the role of an investigator. That the trial Judge thus exhibited bias against the appellant by assuming the duty of investigating and discovering evidence that was not proffered by the prosecution. That the unconstitutional assumption of the role of an investigator negatively affected the trial Court’s assessment of available evidence and resulted in its reaching an unjust decision contrary to the evidence before it.

Counsel finally submitted that the onus is on the prosecution to prove its case beyond reasonable doubt by providing cogent and credible evidence before the Court. It is settled that before a person is arraigned in Court, investigation must have been concluded. The trial judge has no duty to investigate and discover outside what has been presented to him in evidence.
He urged the Court to so hold and resolve this issue in favour of the appellant.

Counsel for the respondent while arguing this issue submitted that the trial Court rightly arrived at its verdict after proper evaluation of all the evidence tendered at the trial before it. That the trial judge rightly arrived at all the observation made in the course of delivering its judgment flowing from evidence adduced at the trial before him. That the mere use of semantics is not sufficient to establish that the trial judge was biased against the appellant. It is also not true that the trial judge descended into the arena of fabricating evidence and relied on any other evidence outside evidence given or tendered at the trial. He relied on the cases of State v. Nwuzor (2018) LPELR-44949, Ilori v. Tella (2006) 18 NWLR (Pt. 1011) and First Bank of Nigeria Plc v. Mamman (Nigeria) Limited (2001) FWLR (Pt. 31), cited in support of issue 2 of the appellant’s brief of argument are therefore inapplicable.

Counsel finally submitted that the evaluation of evidence at the trial is the exclusive prerogative of the trial judge. He relied on the case of Ali v. State (2003) 3 ACLR 581 at page 586. He urged this Court to resolve this issue against the appellant.

Issue two which has drawn extensive argument from the parties is raised from grounds 2 and 3 of the notice of appeal. This two grounds need be explored to draw out the nature and competence of those grounds. The appellant’s grounds two and three read:
GROUND TWO (2):
The Honourable Trial Judge erred in law when he held that at page 76 of the judgment as follows: “I wish to state that I have a duty thrust upon me to investigate and discover what will satisfy the interest and demands of justice”.
And thereby occasioned a miscarriage of justice.
Particulars of Error:
1. The Honourable Trial Judge assumed the role of an investigator and went outside the evidence proffered before him.
2. The Honourable Trial Judge refused and failed to restrict himself to the evidence adduced before the Court.
3. There is no duty whatsoever thrust on a Court to investigate.
4. The Honourable Trial Judge exhibited bias against the Defendant by assuming the duty of investigating and discovering evidence contrary to his duty to assess evidence.
5. The constitutional duty of a trial Court is to assess the credible evidence before it and reach a decision based on its assessment.
6. The Court has no duty to investigate and discover anything outside what is presented to it in evidence.
7. The duty of investigation is the constitutional preserve of the police.
8. The onus is on the Prosecution to prove its case beyond reasonable doubt.
9. The trial Court’s assumption of a duty to investigate and discover is a usurpation of the duty of the police.
10. The trial Court’s usurpation of the duty of the police by taking it upon itself to investigate and discover negatively coloured its assessment of the available evidence and resulted in its reaching an unjust decision contrary to the evidence before it.
GROUND THREE (3):
The Honourable Trial Judge erred in law when he held page 102 of the judgment as follows:
“I stated from the preceding part of this judgment, even though there was no eye witness account, confession on the part of the Defendant, this Court being a Court of justice is under an obligation to investigate from evidence before it to arrive at a just and fair decision”.
And thereby occasioned a miscarriage of justice.
Particulars of Error:
1. The Honourable Trial Judge assumed the role of an investigator and went outside the evidence proffered before it.
2. The Honourable Trial Judge refused and failed to restrict himself to the evidence adduced before the Court.
3. There is no obligation whatsoever upon the Court to investigate facts.
4. The Honourable Trial Judge exhibited bias against the Defendant by assuming the duty of investigating and discovering evidence contrary to its duty to assess evidence.
5. The constitutional duty of a trial Court is to assess the credible evidence before it and reach a decision based on its assessment.
6. The Honourable Trial Judge has no duty to investigate and discover anything outside what is presented to him in evidence.
7. The duty of investigation is the constitutional preserve of the police.
8. The onus is on the prosecution to prove its case beyond reasonable doubt.
9. The trial Judge’s assumption of a duty to investigate is a usurpation of the duty of the police.
10. The trial judge’s usurpation of the duty of the police by taking it upon himself to investigate coloured his assessment of the available evidence and resulted in his reaching an unjust decision contrary to the evidence before him.

The whole argument in this issue is the allegation that the trial Court shifted his duty of adjudication to that of investigation. This allegation is indexed from the quoted dicta of the learned trial judge at pages 740, 764 and 767 of the record in the judgment of the trial Court. In the first place, it looks certain that the learned trial judge in his judgment confined himself to the evidence before the Court. There was nothing extraneous imported into the case by the trial Court. The use of the word “investigate” by the learned trial judge was interpreted out of context. Ordinarily, the word “investigate is synonimical to the word “examine”, “ascertain”, or “look into”. It is not used to mean “dig out” or “to inquire” into the alleged offence. This is clear from the judgment of the trial Court. A full rendition of the captured dicta will reveal the context in which the word “investigate” was used by the trial judge. It reads as follows:
It is not given to human justice to see and know, as the almighty creator knows, the thoughts and actions of all men. Human justice has to depend on evidence and inference.
Dealing with the irrevocable issue of life and death, caution must be exercised lest an innocent person is sent to an early and ignoble death.
I wish to state that I have a duty thrust upon me to investigate and discover what is in any particular case will satisfy the interest and demands of justice.
And the interest and demands of justice be dictated by the peculiar facts and the surrounding circumstances of each case. (See page 740 of the record of appeal) (Underlining mine).
Furthermore, the learned trial judge said at page 764 of the record as follows:
As I stated from the preceding part of this Judgment, even though there was no eye witness account, confession on the part of the Defendant, this Court being a court of justice is under an obligation to investigate from the evidence before it to arrive at a just and fair decision, one of which is draw inferences from the circumstances surrounding the case. (Underlined mine for emphasis).
I have gone through the record before this Court and I am fully certain that the learned trial judge did not engage in any investigation outside the evidence before it. The appellant apart from capturing the isolated word “investigated” did not point out to this Court where the learned trial judge went out of the scope of this duty to carry out investigation of the appellant and the offence for which he was charged. The duty of the trial judge as has been well outlined in several decisions of this Court and the Supreme Court, does not admit of any extraneous consideration.
A trial Judge is to evaluate evidence and ascribe probative value to it. Where a trial judge has done this, the Appellate Court has no business in substituting its views for its own. The fundamental principle is that in an adversary system of trial, the judge or Court must keep a detached posture and should not only remain but appear to be an impartial arbiter between the contesting parties. In the case of Adeleke & Ors. v. Iyanda & Ors. (2001) LPELR-114(SC), Uwaifo, JSC, held that a trial Judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case, and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law: see Bornu Holdings Ltd. v. Bogoco (1971) 1 All NLR 324 at 330; Adeniji v. Adeniji (1972) 4 SC 10 at 17; Shodeinde v. The Registered Trustees of the Ahmadiyya Movement- in-Islam (1983) 2 SCNLR 284 at 320. When he fails in this regard, it is an invitation to the appellate Court to intervene and if the appellate Court can make its own finding from the evidence available, it will interfere with the findings of the trial Judge since it is in as good a position as the trial Court on that score: see Fatoyinbo v. Williams (alias) Sanni (1956) SCNLR 274 at 275; Lawal v. Dawodu (1972) 1 All NLR (Pt. 2) 270 at 286; Okpaloka v. Umeh (1976) NSCC (vol. 10) 519 at 533.
In the instant case, the learned trial judge did not step out of his primary duties of evaluation of evidence into assuming the role of an investigator as alleged in this appeal. The learned trial judge did a thorough evaluation of the evidence before him in this case. This issue is therefore, resolved in favour of the respondent.

Issue Three:
This issue is – whether having regard to the totality of evidence before the Honourable trial Court, the respondent proved beyond reasonable doubt, the commission of the offence of Culpable Homicide punishable with death and the Honourable trial Court rightly found the appellant guilty of the said offence.

Counsel for the appellant while arguing this issue stated the ingredients of the offence of culpable homicide punishable with death as contemplated by Section 220 of the Penal Code is as follows:
1. That the deceased has died;
2. That the death of the deceased resulted from the acts of the defendant; and
3. That the act of the defendant was intentional with the knowledge that death or grievous bodily harm was the probable consequence.

He cited the cases of – Sani v. State (2018) 8 NWLR (pt. 1622) Pg. 412 at 426 Pars E – F; Musa v. State (2019) 2 NWLR (Pt. 1655) Pg. 140 at 153 Paras A-C, Adamu v. State (2014) 10 NWLR (Pt. 1416) Pg. 441 at Pg. 460 Paras C-E and Iliyasu v. State (2014) 15 NWLR (Pt. 1430) Pg. 245 at Pg. 263 – 264 Paras H – A Per Abiru, JCA. He argued that to secure a conviction for the offence of culpable homicide punishable with death, that the prosecution must prove the ingredients of the offence which ingredients must co-exist. He submitted that the respondent failed to prove the said ingredients of the offence of culpable homicide punishable with death to ground the conviction by the trial Court.

Counsel further argued that there is no evidence proffered by PW1, PW2, DW1 that the appellant fatally injured the deceased by stabbing him in the heart regions, thigh and back with the same knife she had threatened to use on him. That it is uncontroverted evidence before the trial Court that despite the appellant picking up a knife in the course of the earlier altercation with the deceased, PW1 collected the said knife from her without anyone sustaining any injury in the process. As for the evidence of the PW2, counsel maintained that the position of the law is settled that hearsay evidence is not admissible in law and cannot be relied upon. He referred to the case ofSimeon v. The State (2018) 13 NWLR (Pt. 1635) Pg. 128 at pg. 149 Paras D – H. That the absence of any evidence from the doctors to corroborate the evidence of PW2 was fatal to the case of the prosecution. That it is trite law that where the prosecution fails to call a vital witness who could have given evidence to clear a doubt, the doubt created by such absence should be resolved against the prosecution. He referred to the case of Al-hassani v. State (2011) 3 NWLR (Pt. 1234) Pg. 253 at 277 Paras. D – E. That the evidence of PW3 contradicts that of PW2. That the said PW3 did not state that his investigation revealed that the appellant took a knife and in the process of the deceased trying to collect the knife, the knife stabbed the deceased.

He maintained that there is no credible evidence before this Court to satisfy the three ingredients of the offence of culpable homicide punishable with death and nothing to support the finding of guilty by the trial Court. He cited Adegbite v. State (2018) 5 NWLR (Pt. 1612) Pg. 183 at Pg. 204 Paras. C – D. That the trial Court based its decision on suspicion and the law is settled that suspicion, no matter how strong cannot ground a conviction for a criminal offence. That suspicion cannot take the place of legal proof. He cited State v. Ajayi (2016) 14 NWLR (Pt. 1532) Pg. 196 at Pg. 232 Para. D. E, Rabiu v. State (2010) 10 NWLR (Pt. 1202) Pg. 127 at 155 Para. B – C. Counsel urged the Court to resolve this issue in favour of the appellant.

Counsel for the respondent submitted that the prosecution proved all the ingredients of the offence of culpable homicide punishable with death beyond reasonable doubt as required by law. He referred us to the record of proceeding at pages 568-664 of the record of appeal and the prosecution final written address at page 556-557 of Vol. II of the record of appeal. He stated that in a charge of murder, the burden on the prosecution is to lead evidence to prove the following three (3) ingredients of the offence beyond reasonable doubt, these are;
a. That the deceased has died
b. That the death of the deceased was caused by the accused.
c. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequences.

Counsel relied on the following cases of Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 1, Durwode v. State (2001) 2 ACLR 503 at 522. He submitted that all the above requirement was successfully discharged by the prosecution at the trial, he urged this Court to so hold and discountenance all the submission of the appellant and resolve this issue against the appellant.

Let me begin the consideration of this issue by recounting for our guide the requirement of the law in respect of the standard of proof required in criminal proceedings. In the case ofEdun & Anor. v. FRN (2019) … Peter-Odili, JSC, held as follows:
“I stated in extensio the relevant parts of the background leading judgment to where we are in this appeal to highlight the facts and to better position them in relation to the criminal charge on which the appellant was arraigned. In this the burden of proof on the prosecution to establish the guilt of the accused appellant is beyond reasonable doubt in keeping with Section 137 (1) of the Evidence Act, which burden never shifts and in line with the constitutional rights of the accused person to the presumption of innocence as expressly stipulated by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). In line with the prescription of the Constitution and the Evidence Act, in discharging this bounden duty, the prosecution must prove the essential elements of the offence strictly as contained in the charge since the purpose of the charge is to give adequate notice to the defence of the case it is up against. I rely on FRN v. Usman (2012) All FWLR (Pt. 632) 1639 at 1650 per Rhodes-Vivour, JSC, Akindele v. State (2016) All FWLR (Pt. 860) 1047 at 1084, State v. Ajayi (2016) 7 SC (Pt. 111) 55 at 95, Lawal v. State (2016) 6 SC (Pt. 11) 121 at 152, Sowemimo v. The State (2012) NWLR (Pt. 1284) 372 at 400, Okashetu v. State (2016) 6 SC (Pt. 11) 155 at 191, Okejere v. State (2017) All FWLR (Pt. 866) 386 at 412 – 413”.
The position is very clear that the burden of proof is squarely in the prosecution to prove its case against the person accused beyond reasonable doubt. This proof does not mean proof beyond every shadow of doubt. What is necessary or essential is that the evidence adduced by the prosecution must be so strong as to leave only a remote possibility in favour of the accused. It is in this direction trite that for there to be proof beyond reasonable doubt, the offence and its particulars must be proved with the certainty required in criminal trial. Any doubt found prevalent in the trial must be resolved in favour of the person accused of the offence.

In the instant case, the prosecution called Six witnesses. Of these witnesses, the PW1 – Ibrahim Mohammed, was very clear and coherent. The record of his testimony is at pages 586 to 591. This witness’ evidence was not all through controverted. He testified to being in the house of the deceased prior to the death of the deceased. He said the deceased and the appellant were coupled as husband and wife. He narrated how the appellant was fighting the deceased telling the deceased to divorce her immediately. He gave account of how the appellant grabbed the cloth of the deceased by the neck. How the appellant broke a bottle and wanted to stab the deceased and he stopped her. That the appellant insisted that she be divorced or she would sever the private party of the deceased. He testified of the several efforts of the appellant to stab the deceased with her kitchen knife and he intervened and stopped her. He testified further that the appellant picked also a table knife and attempted picking knives three to four times which he said he retrieved from her and blocked her. He testified that the appellant bit the deceased on the fingers which they went to dress the wound. He testified that they left the house of the deceased when he (the Deceased) was in the guest toilet performing ablution to do his prayers. That the appellant was in the house when they left the house.

The PW3 (ASP Simon Okko) a Police Officer testified that he came to the hospital on distress call from Maitama General Hospital. He met the appellant standing there with the lifeless body of her husband. That he took custody of the appellant and handed over the dead body of the deceased to the Mortuary attendant after taking some photographs. On cross-examination, he said he took six photo shots of the deceased body. When he was cross-examined as to whether there were wounds on the body of the deceased, he replied:
“There was knives (sic) stab on the left chest to the heart and bruises on the deceased stomach and bite on the chest.”

From the facts clearly available, it is not contestable that the deceased Bilyaminu Bello Halliru died. Even the appellant from her evidence before the Court and her extra judicial statement confirmed that the deceased died. This does not provide any complex or intractable problem to the learned trial judge. The ingredient is clearly established. The other ingredients of the offence which required some further attention are the next two ingredients of the offence. The facts remain solidly that there is no eye witness to the commission of the offence. The appellant did not in any direct form confess to the commission of the offence. There is no autopsy conducted and the medical report tendered has to do with the observation of a Medical Director which put the cause of death to be “suspected severe haemorrhage secondary to a penetrating wound on the chest wall”. The wound found on the chest wall was suspected to be the cause of severe haemorrhage. The medical report bore testimony that the examination of the deceased was not a full body examination. The report Exhibit G stated that the Urogenital system of the deceased could not be examined “because patient’s wife was crying while lying on the patient’s groin and didn’t heed my advice to allow examination”. Anatomically, the urogenital system are the organs of the reproductive system and the urinary system grouped together because of their proximity to each other. I will still look into this report later in this judgment. At this point, what is very pungent and obvious is the fact that the evidence in this case is largely circumstantial evidence. In the case of Anyim v. State (2019) 8 NWLR (Pt. 1675) 513, the Supreme Court per Augie, JSC, held at page 536 (paragraphs E – H) as follows:
Direct evidence established a fact without making any inference to connect the evidence to the fact. Thus, direct evidence proves or disproves a fact directly. Circumstantial evidence, on the other hand, requires an inference to be made to establish a fact. “Inference” is “a conclusion reached by considering other facts and deducing a logical consequence from them” – Black’s Law Dictionary, 9th Ed. Circumstantial evidence, however, does not point directly to a fact.
An inference must be made, which would link the circumstantial evidence to the fact that the party using it is trying to prove, which can make it a lot more powerful than direct evidence – see Lori v. State (1980) NSCC (Vol. 12) 269, wherein Nnamani, JSC, very aptly observed:
“Circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances, which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. But the circumstantial evidence sufficient to support a conviction – must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner and no one else, is the murderer. The facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.”

The onus or duty on the prosecution in every criminal case is to prove the ingredients of the offence charged beyond reasonable doubt. In the case ofState v. Isah (2009) 1 NWLR (Pt. 1652) 139, the Supreme Court held at page 155 paras. C – H thereof as follows:
To decide according to facts alleged and proved. Per Nweze, JSC, in Ibrahim v. The State (2015) 3 SCNJ 359, 348; (2015) 11 NWLR (Pt. 1469) 164 the ingredients of the offence charged must be proved required by law and to the satisfaction of the Court, Obiakor v. State (2002) 10 NWLR (Pt. 776) 612, 627; Nwokedi v. COP (1977) 3 35, 40; Ameh v. The State (1978) 7 SC 27; Kalu v. The State (1988) 4 NWLR (Pt. 90) 503; Aruna v. The State (1990) 6 NWLR (Pt. 155) 125. As this Court held in Ochiba v. State (2011) LPELR – 8245; (SC) 33 – 34; F – E (2011) 17 NWLR (Pt. 1277) 663 at PP. 693 – 694 paras. G – C:
In every case where it is alleged that death has resulted from the act of a person a link between the death and the act must be established (and) proved beyond reasonable doubt. In the course of events the cause of death must just be proved. Where the cause of death is ascertained, the nexus between the cause of death and the act or omission of the accused alleged to have caused it must be established. These are factual questions to be answered by the consideration of the evidence. In our adversarial system of criminal justice, the prosecution must prove its case beyond reasonable doubt with vital and relevant evidence it can produce. In the process, it must also produce vital witnesses to testify for the prosecution. Before a trial Court comes to the conclusion that an offence has been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that the acts of the accused complained of come within the confines of the particulars of the offence charged, Amadi v. The State (1993) 8 NWLR (Pt. 314) 644, Fatoyinbo v. A.G. Western Nigeria (1966) 3 WRNLR 4; (1966) 1 SCNLR 101; Okeke v. The State (1995) 4 NWLR (Pt. 392) 676; Akinyemi v. The State (1999) 6 NWLR (pt. 607) 449.
In the instant case, evidence abound that the appellant and the deceased were married and living together. On the day the deceased died, the couple had a matrimonial dispute. The dispute was said to be caused by the appellant who saw a nude picture of a lady in the phone of her deceased husband and demanded for a divorce failing which she would cut off the husband’s private part. The PW1, Ibrahim Mohammed was present in the house of the appellant and the deceased when the quarrel started on the day of the incident. The PW1 testify of the effort put in to stop the appellant from using bottle and knives to attack the deceased. The PW1 left the appellant and the deceased at their home and went to his own house in the night. The next news heard some thirty minutes thereafter, was that the deceased had been killed.

There was evidence of violence seen on the body of the deceased by the witnesses. The appellant in his testimony before the Court and the extra judicial statement to the police bore the fact that the appellant and the deceased fought. The two of them were the only ones who knew what really happened. The deceased is not alive to relay what happened to him on the day of the incident. The appellant had her own story to tell. The appellant recounted the story of what led to their dispute. She also gave account of the fight and the final moments of the deceased. The facts as narrated by the appellant can be put together in this judgment.

Let me start with Exhibit A, which is the very first statement made in writing by the appellant to the Police on 19/11/2017. The appellant said as follows:
“This evening I came back home around 12. I had misunderstanding with my husband. It led to me breaking Shisha pot, so he (the deceased) pushed me and the water from the floor was slippery and he fell in the bottle (the broken bottle). He now started screaming my name for help and I told him God is trying to catch him, I now removed the bottle and brought him to Hospital. The Hospital now said he is dead. The reason I broke the bottle is because he started biting me that he wants to go out and I broke the bottle. To threaten him with Divorce.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The next statement the appellant made on the 19/11/2017 to the Police is at page 648 to 649. The appellant recounted the following:
“So later at around 10, I went for a friend’s bridal shower and when I came back the fight continued with my husband. He now slapped me and I bit him, he now pressed me to floor and I broke the Shisha pot and held the iron saying he should let go of me, he did but the Shisha pot I broke the water poured and the floor became slippery. So he was trying to stand and the slippery water fell him down. He now started calling me to help but I thought it was minor and turned and looked at him saying God is trying to punish you and I left. So I had him screaming and I told Sadiya to check on him and she said he is badly injured. So I now took him to the hospital where they declared him dead”.

Then on 20/11/2017, the appellant made a lengthy additional statement which was transmitted at pages 643 to 644 of the Record of Appeal. In this additional statement the appellant said:
“Out of anger I broke Shisha pot beside me and held the iron saying he should let go of me and he did. So I stood up about to go to my room, he now fell down on the floor and started calling my name for help I refused to help him but I refused. I then its from the water of the Shisha pot that led to him. Falling down so when I went up I had him screaming so I sent my cousin Sadiya to check on him so she said he is injured. I went down I met him lying down with glass in his chest. I removed the glass and said God is trying to punish him. So I went up brought my car Key and took him to the hospital where they declared him dead. Abuja Clinics and Maitama Hospital in Abuja Clinics the Doctor just said there is no pulse. Then we went to Maitama General Hospital where they declared him dead”.

In the initial story of the appellant after the death of the deceased, the appellant was categorical that she broke the Shisha bottle and even threatened the deceased with it. She said, it was the broken Shisha Bottle that the deceased fell on that caused the wound by which he died. In her evidence on oath before the Court, the appellant changed the tone of her narrative. In her testimony, she said at pages 628 to 629 of the Record of Appeal as follows:
…I then went to the kitchen to make tea. When I was going downstairs, my husband heard footsteps and sought to know who and I said I was the one. I made tea and went back upstairs. I then came back downstairs to the kitchen to drop the cup. I met my husband in the kitchen and he started yelling at me, asking why I involved his friend into the matter. I ignored him as he kept yelling at me. I left the kitchen and went to the living room to get my charger but his friends were not there anymore. I puched my charger and wanted to leave but my husband was angry and that I should not walk out on him. He dragged me from behind. I wanted to leave, he now pushed me and as I was falling, I mistakenly pushed sisha bottle.. the sisha bottle broke and the water inside spill off, my husband pinned me to the ground and I bit him. He also bit me in retaliation I could hear our daughter crying and I asked him to allow me so I attend to our daughter. I struggled to my feet when he loosened up…I was walking away, he wanted to hold me again and he fell. He was calling me to come and help him and I thought he was pretending, when I went upstairs, he was calling me and I now asked my Cousin (Sadiya) to go downstairs and see and she rushed back up to say that she saw him holding his chest. I then gave her our daughter and ran downstairs to him and I met him holding his chest with a bottle on his chest. I removed the bottle and I put my scarf there. I then rushed upstairs to get help, I met Ayuba outside and sought for help. He came we put him in the car and left for Abuja Clinic.
At Abuja Clinic, we brought him and the nurse checked him and said there was no pulse…I was in shock and could not believe it, I then took him to another hospital (Maitama Hospital) at Maitama Hospital, I went to everyday, I kept crying and seeking for help…when they checked him, they said the same thing.

When the appellant was cross-examined by lawyers in court, she responded as follows:
XX: Have a look at Exhibit ‘C’ (statement of the Defendant) you broke the shisha bottle out of anger?
Ans: No. XX: Have a look at Exhibit ‘A’ (statement of Defendant made at Maitama Police Station) from the statement, you broke the shisha bottle out of anger?
Ans: No.
XX: I would be correct to say that you drove your husband to the hospital?
Ans: Yes.
XX: Confirm to this Court that the broken bottle and water from the shisha pot was on the floor before you left the house and also blood stain on the floor?
Ans: There was broken shisha and water on the floor but there was no blood on the floor. He had blood on his shirt but later covered it with my scarf.
XX: Is it true that what led to the death of your husband is as a result of the fight between you was the fact that you saw a naked picture on his phone?
Ans: Yes.
XX: You said you removed a bottle and brought him to the hospital which bottle was that?
Ans: Shisha bottle and drive straight to Abuja Clinic.
XX: What then did you do with the bottle?
Ans: I left it there.
XX: From Exhibit ‘A’ do you still maintain that you did not break the shisha bottle out of anger?
Ans: I did not.. my body mistakenly pushed the shisha bottle.
XX: You had previously requested for divorce several times?
Ans: No.
XX: On this day that you saw the nude picture on your husband’s phone, you asked for divorce?
Ans: Yes.
XX: You weren’t the only one who lifted you husband out of your house into the car to the hospital?
Ans: Yes.
XX: Is it true that you did not render help to your husband when he called on you?
Ans: It is not true. It was when I sent my Cousin (Sadiya) that I knew he was injured.
XX: From Exhibit ‘C’ I will be correct to say that your marriage was fraud with disagreement?
Ans: No.. every couple have disagreement.
XX: Confirm you husband was gone when you carried him into your car?
Ans: I don’t know.
XX: You drove you husband to the hospital.
Ans: Yes.
XX: You have mentioned Ibrahim several time in the course of your evidence. I‘ll be correct to say that the Ibrahim knew everything that had happened that led to the death of your husband?
Ans: Yes. I mentioned everything to him and I thought he (Ibrahim) was coming to Court to tell the truth.
XX: Can you tell the time frame between when your husband called for help and when you eventually helped him?
Ans: I don’t know. May be two, three or five minutes.
XX: Where was your Cousin (Sadiya) when you were having this fight?
Ans: I left her downstairs with our daughter.
XX: I’ll then be correct to say that you were the last person with the deceased when he fall and sustained the injury?
Ans: Yes.

Let me at this point make expressly clear that the extra-judicial statement made by an accused person is not on the same pedestal with his statement on oath before the Court. The former remains a statement not the evidence of the accused. It is the latter that is his evidence. The limit of the usefulness of the extra-judicial statement of an accused made to the police was given by Uwais, JSC, (as then was) in the case of Ganiyu Nasiru v. State (1999) LPELR – 1945 (SC) as follows:
When the statement was tendered and admitted in evidence by the prosecution, it was to simply prove that the statement was taken from the accused – see Sanusi v. State (1984) 10 SC 166 at P. 199 where Oputa, JSC, stated thus: “In Subramanian v. Public Prosecutor (1956) 1 WLR 965 at P. 970, the necessary distinction was drawn between tendering an accused person’s statement as proof of the fact that it was made and tendering same as proof of the truth of its contents. It is my humble view that when the prosecution tenders the statement of an accused person, they tender same only as proof (of the fact) that a statement was made, and not as proof of the truth of its contents.”
Furthermore, in the case of Hassan v. The State (2001) LPELR – 1358 (SC) at pp. 12 – 13, the Supreme Court per Katsina-Alu, JSC, (as then was) held that:
“…it is very usual for an accused person to retract, deny or resile during his trial in the Court from the extra-judicial statement he had earlier made to the police immediately after the event giving rise to the charge or arraignment against him. In such cases, the law casts a duty on both the accused person who made the subsequent denial to impeach his earlier statement and on the trial judge who is to test the veracity or otherwise of such statement by testing it or comparing it with other facts and circumstances outside the statement or in order to see whether they support, confirm or correspond with the said statement which will then be regarded as correct. In other words, the statement will be subjected to scrutiny by the Court in order to test its truthfulness or otherwise in line other available evidence and circumstances of the case – see Salawu v. State (1971) NMLR 249; Akinfe v. State (1988) 3 NWLR (Pt, 85) 729 at 746 – 747, R. v. Itule (1961) 2 SCNLR 183, (1961) All NLR 462, R. v. Sykes (1913) 8 CAR 233 and Onwumere v. State (1991) 4 NWLR (Pt. 186) 428 at 440.”
From all the authorities, a previous inconsistent statement of an accused can be used by a trial Court to test his consistency and thereby his credibility. The fact that the appellant made the statement which is inconsistent with his testimony in the proceeding is significant to test his consistency and credibility in the instant case. In Exhibits A and C, which were her extra-judicial statements to the Police, the appellant stated that she broke the shisha bottle to threaten the deceased with a divorce and also to free herself from the deceased. In her evidence before the Court she denied breaking the shisha pot deliberately. Her evidence latched to the defence that herself and the deceased husband fought. That the shisha pot fell and broke by accident during the time of the fight. That the deceased fell on the broken shisha pot and the glass went into his chest. That she later came to pick the deceased from the floor where he had been and was begging for help and saw the shisha bottle strapped to the chest of the deceased. That she removed the said bottle from the chest of the deceased before she took the deceased to the hospital where he was confirmed dead. She maintained that the blood of the deceased was not on the floor even when she said the deceased was on the floor surrounded by the broken shisha bottle. The appellant maintained that the blood of the deceased who was on the floor with broken bottle strapped to his chest was not on the floor. The appellant said she removed the stuck broken shisha bottle from the chest of the deceased but never gave the particular broken bottle stuck in the chest of the deceased to the Police.

All the prosecution witnesses who came to the scene where the death occurred, met blood splashed everywhere. The serious dimension to the story is the fact that when later the Police Investigator, PW3, came to the house with others, there was no more trace of blood on the floor. The evidence of PW3 is at page 603. He testified that at the scene, he saw some broken bottles in the sitting room but there was no blood stain in the sitting room where she said (appellant) they fought. Hear him at page 604 of the Record of Appeal:
At the scene, I saw some broken bottles in the sitting room but was no blood stain in the sitting room where she said they fought. I recovered the broken bottles after I searched their rooms without any stain of blood. All this took place around 4am in the morning.

All the witnesses who saw the corpse of the deceased, saw stab wounds on the chest area, the neck and the abdomen. For the deceased to be that wounded and on the floor of the house after the fight and no trace of his blood was found on the floor makes the story of the appellant super ficial. She definitely had something to hide. This appellant as found by the trial Court is not a witness of truth. Her evidence has no pinch of credibility. InBello v. FRN (2019) 2 NWLR (Pt. 1656) 193 @ 203 (D – E), the Supreme Court held that:
“Credibility” is the quality of being convincing or believable, and since the trial Court has the liberty and privilege to believe one witness or disbelieve another witness, its findings predicated on the belief or the disbelief of witnesses is almost sacrosanct, as this can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole. See Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683 SC.
In the instant case, the evidence of the appellant was found by the trial Court as not convincing and believable. We have no cause to find otherwise.

The lower Court carefully looked at the evidence of the witnesses for the prosecution and rightly held that the charge against the appellant was proved beyond reasonable doubt. This finding from the facts before this Court cannot be faulted. The PW1, PW2 and PW3 were so direct in rendering the account of the event leading to the fight and ultimately the death of the deceased. The appellant showed clearly she possessed violent animus. She was fast at picking lethal objects such as groundnut bottle and knives to attack the deceased with the threat that if the deceased did not divorce her, she would cut of his private part. Earlier in the judgment I considered the evidence of the PW3, who wanted to have a full body observation of the corpse of the deceased and mentioned that the appellant was lying on the groin of the deceased and every call for the appellant to leave there for the observation of the lower part of the body failed. The question is: what is she trying to hide? Is it the stab on the abdomen? The appellant and every human would know that cutting of a man’s private part has the potential of killing him. Every human knows that any lethal stab of a man could result into death. It is also settled that the intention to kill or cause grievous harm can be inferred from the nature of the weapon used, and that a man who stabs another on the neck region with a bottle is deemed to have intended to kill or cause grievous body harm. SeeIsah v. State (2018) 8 NWLR (Pt. 1621) 346 @ PP. 351, 371, 373. What clearly happened in this case was that the appellant had a premeditated design to kill the deceased because of what appeared to be marital infidelity and when she was left alone with the deceased, she carried out that design leading to the death of the deceased. It is so clear that the trial judge was right in the evaluation of evidence before it and in convicting the appellant for the death of the deceased Bilyaminu Bello Halliru. This issue is therefore resolved in favour of the respondent.

Issue Four:
This issue is – whether the Honourable trial Court did not misapply the doctrine of last seen to the facts and circumstances of the matter before it and therefore arrived at a wrong conclusion as to the guilt of the appellant.
Counsel for the appellant while arguing this issue pointed out that the trial judge misapplied the Doctrine of last seen in convicting the appellant, when it held that the appellant was the last person seen with the deceased and that the deceased died almost immediately and confirmed lifeless from the evidence of the appellant. (pages 746-748 Vol. II of the record of Appeal). Furthermore, that the doctrine of last seen is invoked where there is no explanation as to what happened or caused the death of a deceased last seen in company of the person must explain to the Court what really happened or caused the death of the deceased. He cited the case ofNjoku v. State (2013) 2 NWLR (Pt.1339) PG 548 at 569 Paras A-B.

Counsel submitted that the evidence before the trial Court shows that the appellant was not the last person who saw the deceased alive, therefore, the trial Court misapplied the doctrine of last seen. PW2, Ayuba and the Mystery man who came out of the house, all saw the deceased alive (pages 600 Vol. II of the Record of Appeal). Sadiya Aminu (who was charged with the appellant as the 4th defendant) in Exhibit F, also confirmed she saw the deceased alive. (page 656 of vol. II of Record of Appeal). Exhibit F confirms that the deceased was alive as he was holding his chest. Furthermore, there was no evidence before the trial Court that the appellant was the last person who saw the deceased alive rather the evidence of the appellant in Court was in the affirmative to the question of the respondent during cross- examination as being with the deceased when he fell and sustained injury.

The said cross examination is hereby reproduced;
“xx: I’ll then be correct to say that you were the last person with the deceased when he fall (sic) and sustained injury’’? (underlining ours) (page 634 of Vol. II of the record of appeal)

Counsel submitted that there was no evidence before the trial Court where it was stated as held in the judgment of the trial Court that the deceased died almost immediately and confirmed lifeless from the evidence of the appellant. He cited the case ofOsuoha v. State (2010) 16 NWLR (Pt. 1219) PG 364 at 415 Para E. He maintained that the appellant gave evidence as to what happened and referred this Court to pages 628-629 of Vol. II of the Record of Appeal. Also, PW3 and PW4 corroborated the explanation of the appellant. He referred this Court to pages 604 & 616 of Vol. II of the Record of Appeal. From the explanation of the appellant, the doctrine of last seen could not have been properly invoked to secure conviction against the appellant. The trial Court, in the application of the doctrine of last seen, also applied circumstantial evidence, to support the said application. (pages 746 of Vol. II of the Record of Appeal).

Counsel stated that the position of the law is settled that circumstantial evidence must point to the direction of guilt of the appellant for the crime charged. Circumstantial evidence is sufficient to support a conviction in a criminal trial especially culpable homicide punishable with death, must be cogent, complete and unequivocal. It must be compelling and must lead to irresistible conclusion that the appellant and no one else is the murderer. He relied on the cases ofLori & Anor. v. The State (1980) 8-11 SC 81 at Pgs. 86-87; Osuoha v. State (supra) at PG 414-415 Paras G-C. He maintained that there is nothing which links the act of the appellant and the death of the deceased. None of the witnesses linked the appellant to the cause of the death of the deceased. That the trial Court was in error to rely on circumstantial evidence in convicting the accused in the absence of clear evidence as to the nature of the wound and autopsy result. He cited the case of Onyia v. State (2006) 11 (Pt. 991) 267.

Counsel finally submitted that there is no fact proved before the trial Court by the respondent to invoke the doctrine of last seen. He urged this Court to resolve this issue in favour of the appellant.

Counsel for the respondent submitted that the trial Court was right to have applied the doctrine of “last seen’’ in the instant case. That the appellant and the deceased had series of quarrel and were living together prior to and at the time of the deceased fatal death. He pointed out that the proven facts on record rightly supported the application of the doctrine of “last seen” by the trial Court.
Counsel urged this Court to resolve this issue against the appellant.

The learned trial judge in his judgment drew inference from the fact that it was the appellant that encountered the deceased before he died. No one had such encounter as recounted in this case. It was the appellant who testified that she removed the broken bottle stuck into the chest of the deceased and even removed it and put his scarf in the place. She was the person who carried the deceased from the scene to the hospital. Although the appellant refused to answer whether the deceased died before he was taken to the hospital, the circumstances showed the fact that the deceased was dead by the time he was taken to the hospital. The Doctors met at the hospital confirmed he was dead on arrival to the hospital. In the instant case, evidence showed that the appellant was the last person who saw the deceased alive. By the time the appellant was calling people to help her move the deceased to the car, no one testified that there was life in the deceased anymore. He was pronounced dead on arrival at the hospital. There is therefore, no wrong conclusion when the learned trial judge applied the doctrine of last seen. This issue is therefore resolved against the appellant.

Issue Five:
This issue is – whether the Honourable trial judge was not wrong to have held that the testimony of the appellant before it was manifestly unreliable because she did not reproduce her extra judicial statements with exactitude in her evidence despite the fact that she never denied the said statements nor did she contradict them in her evidence.

Counsel for the appellant while canvassing on this issue submitted that there is no burden imposed on the appellant to reproduce her extrajudicial statements in her evidence at the trial Court viva voce or verbatim. That there is no evidence before the trial Court in the extra judicial statements of the appellant admitted as Exhibit A & C, where the appellant stated that she attempted picking kitchen knife three-four times. It was PW1 in his evidence at the trial Court who stated:
“…..the deceased then pushed her on the bed and went downstairs. 1st defendant again followed him and she went into the kitchen. I followed her. She then picked knife which I collected back from her. 1st defendant again picked table knife. She attempted picking knives three to four times which I retrieved from her.’’ (page 588 of vol. II of the record of Appeal)

The appellant in her extra judicial statements Exhibits A & C did not state that she attempted picking knives three to four times (pages 638-645 of Vol. II of the record of Appeal). The appellant did not deny making the said extra judicial statements tendered and admitted at the trial.

Counsel submitted that the relevant portion relied upon by the trial Court where the appellant said she would use the knife to cut the private part of the deceased is not a confession or admission to committing the offence of culpable homicide, as there is no evidence in the extra judicial statement that she used the knife. He relied on the case of Okunaya v. State (2020) 2 NWLR (Pt. 1709) PG 472 AT PG 488 PARAS F-D: State v. Shonto (2019) 12 NWLR (Pt. 1686) PG 205 at 291, Paras F-H.

He maintained that the said extra judicial statements of the appellant cannot constitute confessional statements, as there is no admission that the appellant caused the death of the deceased. In the said extra judicial statement, the deceased was described as smiling, shows that there was no apprehension for fear of his life, as he knew the appellant will not carry out such act. Moreover, PW1 in the said Exhibit A collected the knife from the appellant without any resistance. PW1 during cross-examination at the trial Court, stated that he was not injured when he collected the knife from the appellant and the appellant never stated she would kill the deceased, neither was the deceased in any fear of his life. (pages 592 & 595 of vol. II of the record of Appeal). The extra judicial statements of the appellant, Exhibits A & C do not corroborate the evidence of PW1, that the appellant attempted picking kitchen knife three-four times. The statement Exhibit A made reference to knife just once. The extra judicial statement of the appellant was made at the Police Station (pages 604 & 629 of Vol. II of the record of appeal). In the statement made by PW4, he confirmed that the appellant when writing her statement at the Police Station reiterated the fact that she did not kill the deceased and the fact that the deceased fell on shisha bottle was stated.

Counsel submitted that the time frame of obtaining the statement of the appellant clearly shows the first extra judicial statement which form part of Exhibit A was taken at about 4.35am on the 19th of November 2017; Exhibit C was taken at 4.55am-5.17am (pages 639 & 649 of vol. II of the record of appeal). From the above timing, it clearly shows that the statement of the shisha pot could not be a smoke screen and there is no admission that the appellant caused the death of the deceased. He cited the case of Maigari (Sic) v. State (2010) (Maigari v. State) LPELR-4457. Counsel finally submitted that the trial Court misapplied the case of Maigari v. State (Supra) to the case of the appellant and urge this Court to hold that the testimony of the appellant is reliable and cannot be ignored.
He urged this Court to resolve this issue in favour of the appellant.

The learned counsel for the respondent submitted that the issue of the appellant attempting to pick knives three to four times was the evidence before the Court vide PW1 (page 588 Vol. II of the Record of Appeal). That the trial judge was right to make reference of this piece of evidence in the final judgment and that the trial judge rightly applied the case of Maigari v. State (2010) LPELR, in the instant case contrary to the contention of the Appellant.
He urged this Court to resolve this issue against the appellant.

While dealing with issue three earlier in this judgment, I had dealt with the issue of extra judicial statements of the appellant. The import of those statements was also considered. They brought out clearly the fact that the appellant was inconsistent and incoherent in her evidence engendering the fact that her testimony in Court was unreliable. I therefore, agree with the learned counsel for the respondent that the learned trial judge was right in following Maigari v. State (2010) LPELR – 4457 (CA). This decision was affirmed by the Supreme Court in Usman Maigari v. The State (2013) LPELR-20897 (SC). The prosecution has in this case discharged carefully the burden of proof on him and the trial Court was not in error in drawing the relevant conclusion leading to the conviction and sentence of the appellant. This issue is also resolved in favour of the respondent.

Issue Six:
This issue is – whether the Honourable trial judge was not wrong to have admitted Exhibit G, in evidence and placed reliance on same, the maker not stated to have been unavailable, but not called as a witness, despite objection to the admissibility of same by the appellant.
Counsel for the appellant submitted that the reliance of the trial Court on Exhibit G (medical report), which was admitted in evidence despite the objection of the appellant, and relied upon in convicting the appellant occasioned a miscarriage of justice. (pages 760,762 & 765 of Vol. II of the record of appeal). Exhibit G is the medical report from Maitama District Hospital addressed to the Divisional Police Officer of the Nigerian Police Force, Maitama Division, Abuja and that the said exhibit was prepared by Dr. Kelechi Aliakor who included medical terms not within the sphere of expertise of Josephine Onyendu, an Inspector of Police Homicide Department of FCT Police Command (PW6) whom it was tendered through. That the said doctor was never called to testify nor was he cross-examined as to the veracity of the document. PW6 never per took in the preparation of the report nor understood any medical terms contained in the report.

Furthermore, PW6 in tendering Exhibit G contrary to Section 83 of the Evidence Act 2011, did not establish the reason why Dr. Kelechi Aliakor, could not come to Court to tender the document or testify on it. The trial Judge regardless of the objection made by the appellant and the provision of Section 83 of the Evidence Act 2011, admitted Exhibit G and relied on it. He relied on the following casesEze v. State (2015) All FWLR (Pt. 811) Pg. 1394 @ 1423 Para F-C: Omega Bank (Nig.) Plc v. O.B.C. Limited (2005) All FWLR (Pt. 249) Pg. 1964.

That Section 83 of the Evidence Act 2011, clearly provides the foundation for tendering documents where the maker cannot be called. He cited the cases of Osigwelem v. INEC (2011) 9 NWLR (Pt.1253) Page 425: Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt. 453) Pg. 148 @ 167 Paras H-B, Kakih v. PDP (2014) 15 NWLR (Pt.1430) Pg.374 at 419. He maintained that Exhibit G is inadmissible in law as the maker was never called to testify. He cited the cases of Okonkwo v. State (1998) 8 NWLR (Pt. 561) 210 PG 258 Para E; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416 Pg. 504-510, Paras G-A.

Counsel pointed out that case law permits the admission of Exhibit G, then it is pertinent to state that case law places a burden on the Court to not place any weight on same. He urged this Court to discountenance the probative value placed by the trial Court on Exhibit G in convicting the appellant. He cited the case of Belgore v. Ahmed (2013) 8 NWLR (Pt.1355) 60 Pg. 100, Paras E-F. Counsel finally submitted that a Medical Report, like Exhibit G in a criminal trial is inadmissible, if it is not tendered through its maker except where the reason for the absence of the maker is provided. He cited the case of Paul v. The State (2019) LPELR 47386 (SC) @ PP 16-20, Paras B-D.

He urged this Court to resolve this issue in favour of the appellant and expunge Exhibit G from the record and discountenance the evaluation of Exhibit G by the trial Court.

Counsel for the respondent while arguing this issue submitted that Exhibit G was rightly admitted in evidence and that the trial judge was right to rely and make use of the evidence to support the conviction of the appellant. Furthermore, that Exhibit G is relevant and also part of the evidence generated in the course of the police investigation, and was rightly tendered in evidence through PW6 Josephine Onyendo, Police Officer and Investigation Police Officer (IPO) of the case. The fact that Exhibit G was not tendered by the maker, was not cross-examined by the defence is not fatal to the Court’s admission of the said exhibit and the reliance by the Court on same to convict the appellant has not occasioned a miscarriage of justice.

Counsel finally urged this Court to discountenance the appellant’s submissions on the propriety of the admission and reliance on Exhibit ‘’G’’ by the trial Court and resolve this issue against the appellant.

The parties through their counsel have contested the medical report Exhibit G. The contest is on the fact that the maker was not called as a witness. The law requires that the maker of a document must be called to tender the document so that the document can be tested or proven through cross-examination of the maker by the adverse party. The law does not forbid admission of such a report when tendered by the investigating police officer but the Court must be cautious as to what weight to place on it.

From the record before us in this case, the issue of medical report which was mainly on the observation of the Doctor of the body of the deceased, was not primely relied upon by the trial Court. It is trite law that it is not in all cases that medical evidence is indispensable. Where there are other facts or pieces of evidence which sufficiently show the cause of death to the satisfaction of the Court, for instance when the cause of death is instantaneous or unequivocal referable to the criminal assault by the accused, medical evidence is not necessary. But those instances are when the cause of death is instantaneous or unequivocal referable to the criminal assault. For instance, when the victim or criminal assault died almost immediately on the spot. Lori v. State (1980) 8 – 11 SC 81 referred to, Ariche v. State (1993) 6 NWLR (Pt. 302) 752 distinguished, Zubairu v. State (2015) 16 NWLR (Pt. 1486) 504 followed). See Folorunso v. State (2020) 15 NWLR (Pt. 1746) 33. The facts and circumstances of this case do not even require the medical report as there is evidence of the fact that the deceased died from the fight engineered by the appellant. This issue is also resolved against the appellant.

Issue Seven:
This issue is – whether the Honourable trial judge was not wrong to have based his finding of guilt of the appellant on the materially contradictory and hearsay evidence of the prosecution witness.

Counsel while arguing this issue stated that, the position of the law is settled that hearsay evidence is not admissible. Where it is shown that the evidence relied upon to convict a defendant amounted to hearsay, that an appellate Court would quash the conviction. He relied on the case of Simeon v. State (2018) 13 NWLR (Pt.1635) PG 128 at Pg. 149 Paras D-H.

Counsel submitted that the evidence of PW2 as to the injuries, were not within what he saw and the mother of the deceased who allegedly stated to have seen the injuries was not called as a witness at the trial Court to reiterate the said alleged injuries. That the trial Court ought not to have relied on the said evidence of PW2 in respect of the injuries in the body of the deceased. (page 601 of vol. II of the record of appeal). PW2 in his evidence at the trial Court said “the mother noticed knife stab on the left and evidence of teeth bite…’’ The reliance on hearsay evidence by the trial Court infringed on the appellant’s right to fair hearing and fair trial by the Court. He maintained that the trial Court erred when it relied on the manifestly contradictory evidence of the prosecution witnesses PW1 & PW4 as to the injuries on the body of the deceased. (He referred this Court to the testimonies of PW1 & PW4 at pages 590 and 610 of Vol. II of the record of Appeal) and also (pages 591; 608-609 Vol. II of the record of appeal).

Counsel submitted that the evidence of PW1 and PW4 which the trial Court relied in convicting the appellant, wherein the Court held that it placed side by side with the evidence of the appellant on the issue of broken shisha bottle or pot. That the trial Court failed to look or evaluate the Prosecution’s evidence in Exhibit D. That the said Exhibit D, is the extra judicial statement of Maimuna Aliyu (charged along with the Appellant as 3rd defendant at the trial Court) which was tendered by the respondent at the trial.

Counsel submitted that the onus is on the prosecution to prove its case beyond reasonable doubt, as the mother and brother of the appellant as 3rd and 2nd Defendants respectively at the trial in the Amended Charge were discharged and acquitted by the trial Court, as no case was made against them by the respondent on the allegation that they caused evidence of the offence to disappear by clearing the blood from the scene of the crime. That Exhibits D & E, the extra judicial statement of the mother & brother of the appellant tendered by the respondent in support of the case at the trial Court, did not state that PW1 & PW4 were there at the house of the deceased. That even PW4 & PW6, the police officers never stated that PW1 & PW4 were at the house of the deceased.

Counsel stated that it is a trite law that the burden of proof lies with the prosecution and not on the appellant’s counsel to ask PW1 and PW4 under cross-examination questions on the state of the parlour of the deceased in view of the contradictions in the evidence before the trial Court, however, that contrary to the holding of the trial Court, PW1 at the trial Court asked questions during cross-examination about the state of the deceased’s house. (page 594 of vol. II of Record of appeal). He submitted that there is no direct or surrounding circumstantial evidence to suggest or point to an inference that the shisha bottle was broken after the death of Bilyaminu.
He urged this Court to resolve this issue in favour of the appellant.

Counsel for the respondent asserted that all evidence tendered by the prosecution at the trial Court are cogent and reliable and that the Honourable trial Court dutifully evaluated same with findings of facts before arriving at a just decision. He submitted that the prosecution proved all the ingredients of the offence of culpable Homicide punishable by death as required by Section 135 of the Evidence Act, and the case of Ahmed v. State (2003) 3 ACLR 145 at 157.

He finally urged this Court to discountenance the contention of the appellant on this issue and resolve this issue against the appellant.

In the instant case, the trial Court did not apply the hearsay evidence of the PW2. The Court relied on the credible evidence of the PW1 and PW4 vis-à-vis, the circumstances to infer the intention of the appellant. The law is settled that intention of an accused person can be inferred from the conduct of the appellant and the surrounding circumstances within which he acts and operates. In the instant case, the intention of the appellant therefore, was proved from the inference flowing from the manifestation of the appellant’s act. See Kolo v. C.O.P(2017) 9 NWLR (Pt. 1569) 118.

The prosecution as earlier held in this appeal, put in cogent and reliable evidence. This credible evidence was well evaluated by the trial Court. The contention of the appellant that the trial Court relied on hearsay evidence is indefensible in this case. This issue is resolved in favour of the respondent.

Issue Eight:
This issue is – whether the Honourable trial judge having held that the evidence of the prosecution was insufficient, could rightly have convicted the appellant on the offence of culpable homicide.
Counsel for the appellant submitted that the respondent has the unshifting (sic) burden to prove the ingredients of the offence, and which the ingredients must co-exist, while he concedes that the deceased died on the fateful day, counsel however, question the fact that it is in doubt whether the appellant’s act was intentional and was responsible to the death of the decease. He argued that it was never established in evidence that neither the death of the deceased was caused by the appellant, nor that the act of the appellant was intentional with the knowledge that her act would lead to the death or causing bodily harm to the deceased.

Counsel reiterate the obvious position of law when he submitted further that in a delivery of judgment, a trial Court must restrict itself to the evidence adduced and resolve the issue(s) in favour of who has satisfied the burden of proof placed on him. In the instant appeal, counsel submitted that the trial Court in its judgment relied on conjuncture and speculation as opposed to cold hard evidence in convicting the appellant. He quoted in ex abundanti pages 773 – 774 of Vol. II of the Record of Appeal to drive home his points. Furthermore, that there is nowhere in the record where PW4 stated in his evidence how he helped a Policeman at Maitama General Hospital by turning the deceased and even removing his trousers for the pictures of all the injuries to be taken. That it was DW1 that made reference to pictures, where the trial Court acknowledged that fact, but it was never tendered before the trial Court in evidence, Counsel queried. However, the only evidence attached to the proof of evidence had undergone several photocopies, which according to the Court was “deliberately done to fade out photo image” in a further submission. Counsel pick hole on how the trial Court reached its decision on the nature and extent of any stab wounds without pictures to collaborate same, or even the autopsy of the deceased and the testimony of a Medical Doctor who examined the dead body in the hospital, and hence, termed the evidences as contradictory and nothing more.

Counsel threw caution on the serious nature of trial on a capital offence, that care must be taken by the Court to ensure that the evidence produced by the prosecution point irresistibly to the guilt of the appellant. He urged the Court to hold that this is not the case in this appeal as there are many uncertainties with regard to the evidence of persons who saw, took and reproduced the faded pictures with doubt on the identity of the deceased. He cited the cases of Oforlete v. State (2000)12 NWLR (Pt. 681) P.415 and State v. Gwangwan (2015)13 NWLR (Pt. 1477) P.600.

He maintained that in arriving at the nature of injury leading to the death of the deceased, nothing was placed before the trial Court to ascertain their nature or extent to know if the injury was man made or caused by the deceased’s slip and fall on broken Shisha Pot as pointed by the testimony of DW2. Absent of evidence to that effect, he stated that a material contradiction on the prosecution evidence, places a burden on the trial Court to hold that the charge was not proved beyond reasonable doubt – and this the trial Court failed on this aspect of the case. He relied on the cases of Osuoha v. State (2010)16 NWLR (Pt.1219) 364 and Ekanem v. The State (2012) All FWLR (Pt. 631) 1587 @1610.

Counsel finally, submitted that the holding of the trial Court was not satisfied by evidence on record, but only exercised it ingenuity to supply or imagine evidence as to the extent and nature of the injury sustained in the body of the deceased. While urging this Court to resolve this issue in favour of the appellant, he relied on the following cases: Adebiyi v. Umar (2012) 9 NWLR (Pt. 1305) P.279, The State v. Usman (2005)1 NWLR (Pt. 906) P.80; Princewell v. The State (1994) 6 NWLR (Pt. 353) P.703; Udegbunam v. FCDA & Ors. (2003) 10 NWLR (Pt. 829) P. 829; and Deriba v. State (2016) LPELR – 40345 (CA).

Counsel for the respondent while canvassing this issue submitted that the comment made by the trial Court below is a mere obiter dictum which has no legal impact on the judgment and therefore, occasioned no miscarriage of justice to the appellant. The said statement is as follows:
“Before I put a full stop to this judgment, I will like to say a word or two about the conduct of the police who were involved in the investigation of this crime. PW4 in his evidence stated how he helped a policeman at Maitama General Hospital by turning the deceased and even removing his trousers for pictures of all the injuries to be taken and that six pictures shots were taken. Surprisingly, no such pictures were tendered. The only picture that was attached to the proof of evidence had undergone several photocopies, which was deliberately done to fade out the photo image. This is shameful and most unprofessional.
(pages 773-774 Vol. II of the record of Appeal).

That the trial judge made the comment only after the appellant had been convicted and sentenced to death and therefore, not part of the main judgment of the Court.
He urged this Court to so hold and resolve this issue against the appellant.

In criminal trial, conviction is not based on sufficiency of evidence because the proof is that of proof beyond reasonable doubt. The issue of obscure photographs was not in the domain of the trial Court. The lamentation of the learned trial judge over the conduct of the police investigation has nothing to do with the substance of the case. It was made obiter. It has not been shown anywhere that it occasioned miscarriage of justice in this case. The issue is of no consequence and has nothing to do with the merit of case. This issue as argued is resolved against the appellant.

Issue Nine:
This issue is – whether the Honourable trial Court was not wrong to have delved into the realm of metaphysics, sentiments and emotion to reach a decision to convict the appellant as opposed to relying on empirical evidence.
Counsel for the appellant submitted that when delivering a valid judgment, that it is the evidence adduced at the trial that must be relied upon or evaluate, and that the trial Court cannot depart from the evidence adduced. He cited the case of State v. Oladotun (2011) 10 NWLR (Pt. 1256) Page 542. That it is the duty of the Court to examine the substance of the case, thus the reliance by the trial Court on metaphysical/philosophy of improbable and probable do not accord with the evidence proffered before the Court. That it is safe to say that, considering the wordings of the judgment and the evaluation of the unreliable evidence adduced by the prosecution, which led to the conviction, the trial judge reached its decision based on sentiments and emotion. He relied on the case of Abubakar & Anor. v. Joseph & Anor. (2008) 13 NWLR Part 1104 P.307.

Counsel pointed out that the trial Court went into the realm of spirituality to reach its decision and did not evaluate the evidence before it, therefore giving the impression that the Appellant had already been convicted before the trial commenced. He cited the case of Hassani v. State (2011) 3 NWLR Part 1234 Page 235.

Counsel urged this Court that morality has no place in law and the judgment of the trial judge was riddled with sentiment which has no place in our judicial system and also resolve this issue in favour of the appellant.

Counsel submitted that all the evidence tendered by the respondent before the trial Court were cogent and reliable evidence which the trial Court rightly relied to convict the appellant. He asserted that the judgment of the trial Court was based on proper evaluation of all admissible evidence before the Court and the trial Court arrived at a just determination as exemplified in the judgment.
Counsel urged this Court to resolve this issue against the appellant.

Under this issue, the argument was on same comments of the trial judge. The style and language of writing the judgment are not of serious concern to the merit of this case. Those philosophical expressions thought of, are side lines which have no impact on the solid and meritorious consideration of facts before the Court by the trial Court. This issue therefore, is resolved against the appellant.

From the foregoing, all that is summed up can be put clearly and firmly thus: The appellant early on the fateful day saw a nude picture of a strange lady popping up on the phone of the deceased, her legitimate husband. The appellant was jolted and she became vehement that the deceased must grant her divorce. The request for divorce was clad with a devastating alternative. The alternative of failure to grant the divorce was to cut off the private part of the deceased. The alternative turned out not to be a mere verbal threat. The appellant early in the confrontation picked a bottle to use, on the deceased, the bottle was seized. She picked knives to use, she was stopped by the PW1, who she admitted in her evidence knew all the facts. The appellant went out for a friend’s bridal showers and returned home after some hours yet, the issue was still boiling in her. At a point, the PW1’s evidence indicated that the appellant peeped and pried on the location of the deceased and discovered that the deceased was still with his friends, so she went back and waited until the friends left. Then she resumed the fight and eventually the deceased from all the circumstances, died through the wounds he sustained from the fight. The appellant testified that when the deceased fell on the floor during the fight he was calling her to help him but she refused to rescue the deceased from dying until she changed her mind and came to pick the deceased to the hospital.

On arrival at the hospital, the deceased was confirmed dead. There was no intervening circumstance. No intervening encounter between the deceased and any other person other than the appellant. It was the appellant that lifted him from the floor in his distress and claimed she removed the broken bottle stuck to his chest before conveying the deceased to the hospital. The deceased did not make it alive to the hospital for any medical help by way of medication or whatever. He was pronounced dead on arrival at the hospital. These facts and circumstances were before the trial Court and the Court rightly considered them concrete enough to secure the conviction of the appellant. Those circumstances lead cogently, strongly and unequivocal to the conclusion that the act, conduct or omission of the appellant caused the death of the deceased person. The conclusion of the trial Court cannot in the light of the facts on record before us be faulted. Having resolved all the issues against the appellant, it is my conclusion that this appeal is lacking in merit.

The appeal is hereby dismissed. The judgment of the trial Court delivered on the 27th day of January, 2020, is affirmed. Consequently, the conviction and sentence of the appellant are hereby affirmed.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity to read in draft the lead judgment delivered by my learned brother, Stephen Jonah Adah, JCA.

I agree entirely with the reasoning and conclusion reached therein. I therefore dismiss the appeal. I also affirm the judgment of the Court below delivered on 27th day of January 2020.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; STEPHEN JONAH ADAH JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

Joe – Kyari Gadzama (SAN), Olusegun O. Jolaawo (SAN), with them, Mohammed Monguno Esq., Regina Roli Okotie-Ebo Esq., Dr. Cyril Obika Esq., and Akinlabi Akingbade Esq. For Appellant(s)

James Idachaba Esq., with him, Fatima Shehu Esq., U. Edosa Samuel Esq., and Mayowa Adeboye Esq. For Respondent(s)

Appearances:

Joe – Kyari Gadzama (SAN), Olusegun O. Jolaawo (SAN), with them, Mohammed Monguno Esq., Regina Roli Okotie-Ebo Esq., Dr. Cyril Obika Esq., and Akinlabi Akingbade Esq.For Appellant(s)

James Idachaba Esq., with him, Fatima Shehu Esq., U. Edosa Samuel Esq., and Mayowa Adeboye Esq.For Respondent(s)

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