JOSEPH v. STATE
(2022)LCN/16966CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/G/73C/2021
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
PC PETER JOSEPH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE THREE MODES OF PROVING CRIMINAL CASES
In kick starting the resolution of this issue, it is pertinent to reiterate that the law as long established by case law is that there are three modes of proof of criminal cases. They are as follows:
a) By direct evidence, to wit: by the testimonies of eyewitnesses, i.e., witnesses who watched, heard or witnessed the commission of a crime committed by the accused person(s);
b) By a confessional statement voluntarily made by the accused person wherein he owned up to the commission of the offence; and
c) By indirect evidence, to wit: circumstantial evidence which points clearly to the fact that the accused person, and no other, committed the offence charged.
See Olaoye V State (2018) LPELR-43601(SC) 13, C-F; Anyasodor V State (2018) LPELR-43720(SC) 14-15, F-C.
It is also entirely the prerogative of the prosecution to decide how it intends to establish an offence against an accused person. The Court does not concern itself with the method of proof as may be adopted by the prosecution provided that proof beyond reasonable doubt, as required by law, will be secured. Thus, in an attempt to secure conviction, the prosecution is at liberty to rely on the evidence of a witness or witnesses or on the proven confession of the accused person or on strong circumstantial evidence. See Umar V State (2014) LPELR-23190(SC) 36, A-C. PER SANKEY, J.C.A.
THE POSITION OF LAW ON CIRCUMSTANTIAL EVIDENCE
On the nature of circumstantial evidence that is considered sufficient to prove a criminal charge, Oputa, JSC in Adio V State (1986) LPELR-183(SC) 22-23, G-C, aptly put it this way:
“Circumstantial evidence can prove a case beyond reasonable doubt. The local case of Joseph Ogunbayode and others, (otherwise known as the Apalara case), is an excellent example of proof beyond reasonable doubt based purely on inferences from circumstantial evidence. It is often said that witnesses can lie but circumstances do not, so in that sense, circumstantial evidence affords better proof beyond reasonable doubt.” (Emphasis supplied)
Thus, the weight and effect of the circumstantial evidence acted upon by the trial Court cannot be belittled simply because there was no direct evidence. Circumstantial is one of the legitimate ways of proving a criminal charge before a Court of law. PER SANKEY, J.C.A.
THE POSITION OF LAW ON THE DOCTRINE OF LAST SEEN
The ‘last seen’ doctrine also indicates that any accused person charged with murder would be required to offer some explanation as to how the deceased met his death. In Haruna V AG Federation (2012) 9 NWLR (Pt. 1306) 419, the Supreme Court per Adekeye, JSC further explained the law in the following terms:
“The doctrine of ‘last seen’ means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal.”
In the locus classicus on this doctrine, in Madu V State (2012) LPELR-7867(SC) 51-52, F-D, the Supreme Court per Ariwoola, JSC, expatiated the doctrine thus:
“In the Indian Supreme Court case of Rajashkhanna V State of A.P. (2006) 10 SCC 172, the Indian Supreme Court noted as follows:
“The last seen theory comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible.”
However, in S.K. Yusuf V West Bengal (2011), the same Supreme Court after referring to its earlier stand above further held that where there is a long time – gap between the “last seen together” and the crime, and there is a possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”. Even if the time gap is less and there is no possibility of others intervening, it is said to be safer to look for corroboration.”
See also Oladapo V State (2020) LPELR-50553(SC) 16-17, D-A, Kolade V State (2017) LPELR-42362(SC) 53-54, E-B Mbang V State (2009 LPELR-1852(SC). PER SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Borno State delivered in Charge No. BOHC/25/CT12/2020 on 10th March, 2021 by A.B. Kumalia, J. It is a sister-appeal to Appeals Nos. CA/G/72C/2021 and CA/G/74C/2021.
The facts leading to the Appeal are that the Appellant, a Police officer, and two others were arraigned before the Borno State High Court on a one-count charge of culpable homicide punishable with death punishable under Section 224 of the Penal Code, Laws of Borno State. The case against them was that one Hassan Muktar was arrested by the Police for assaulting a police officer while on duty. The Appellant and the 3rd accused person, SPY Mohammed Muazu, along with one Sgt. Aminu, were detailed to arrest the deceased and PW3, Fatima Samaila (a sister of the deceased). The deceased was taken to Gwange Police Station along with his sister, Fatima (PW3) who was also alleged to have been involved in the assault. Upon his arrest, Hassan was alleged to have been beaten up by the Appellant, 3rd accused person and other policemen and dragged into the investigation room at the police station. PW4, the second in command of the team at the Station assigned the Appellant to record the statement of the deceased. While the Appellant was in the process of doing so, PW4 again instructed him to hand over the taking of the statement to the 1st accused person, Sgt. Ahmed Sani. The Appellant complied but stated that before he left, he pushed the deceased’s head and/or slapped him twice. However, when the deceased was in the investigation room with the Appellant and the other accused persons, his cries and shouts were heard outside by witnesses. The next morning, Hassan Muktar was pronounced dead on arrival in hospital, UMTH. The Appellant and the 1st and 3rd accused persons were subsequently arraigned and charged before the lower Court for culpable homicide not punishable with death under Section 224 of the Penal Code, Laws of Borno State.
The Appellant pleaded not guilty to the charge whereupon the Respondent adduced evidence in proof of the charge through seven (7) witnesses and nine (9) exhibits. The Appellant and the two co-accused persons testified in their defence, called one (1) other witness and tendered one exhibit through PW7. At the close of trial and the addresses of Counsel on both sides, the learned trial Judge found the Appellant and the co-accused persons guilty as charged and sentenced each of them to seven (7) years imprisonment without an option of fine.
Dissatisfied with the judgment, the Appellant filed an Appeal vide his Notice of Appeal on 17th May, 2021 wherein he complained on five (5) grounds. The sole relief sought in the Appeal is:
“AN ORDER allowing the appeal, setting aside the decision of the lower Court as it affects the Appellant and to discharge and acquit the Appellant.”
At the hearing of the appeal on 18-01-22, Emmanuel Bwala Esq., adopted the submissions in the Appellant’s brief of argument filed on 30-09-21 and settled by C.O. Toyin Pinheiro, SAN, in urging the Court to allow the appeal and set aside the Judgment of the trial Court. On his part, K.S. Lawan, Esq., Hon. Attorney-General of Borno State, adopted the arguments contained in the Respondent’s Brief of argument filed on 10-01-22, settled by him and deemed filed on 18-01-22, in urging the Court to dismiss the appeal.
The Appellant, in his brief of argument, distilled two issues for determination from the five (5) Grounds of Appeal, and the Respondent adopted the issues in its brief of argument. Thus, the appeal shall be determined on the two issues agreed upon by both parties. They are as follows:
1. “Whether from the totality of the evidence adduced during trial, the Respondent has proved the guilt of the Appellant to ground conviction for the offence of culpable homicide not punishable with death? (Grounds 1, 3 and 5)
2. Whether the admission in evidence of the written statement of PW4 as Exhibit A, and the reliance by the lower Court on the evidence of PW4 in convicting the Appellant, amounts to an infringement of the right of fair hearing to the Appellant and led to a miscarriage of justice? (Ground 2)”
ARGUMENTS
Issue one – Whether from the totality of the evidence adduced during trial, the Respondent has proved the guilt of the Appellant to ground conviction for the offence of culpable homicide not punishable with death?
Under this issue, learned Counsel for the Appellant sets out the three ingredients of the offence which must be proved for the prosecution to succeed in a charge of culpable homicide not punishable with death. He does not dispute that the deceased, Hassan Mukhtar, died. The first element of the offence is therefore proved, as conceded.
Counsel’s main contention however is that the Respondent did not prove that it was the Appellant who killed the deceased. In this regard, Counsel submits that the Respondent failed to lead evidence that linked the death of the deceased with the Appellant. He argues that the plank of the case of the Respondent and the judgment of the lower Court was anchored on the testimony of PW3, which he contends, did not link the Appellant to the charge. Counsel therefore submits that the conclusion drawn by the lower Court from the evidence adduced by the Respondent is speculative. He relies on Orisa V State (2018) 11 NWLR (Pt. 1631) 453, 471-472, H-B.
Counsel further submits that, whereas the lower Court relied on Exhibits E1 and E2 to hold that the Appellant took part in beating up the deceased as a result of which he lost consciousness and died, there was no evidence linking the Appellant to the said Exhibits. That the evidence relied upon by the lower Court fell short of the standard of proof required for the offence of culpable homicide not punishable with death. He relies on Aliyu V State (2000) NWLR (Pt. 644) 178, 196, A-D.
Counsel submits that the lower Court had an obligation to review, analyze and consider all the defenses put forward by the Appellant – Bala V State (2019) NWLR (Pt. 1676) 176, 186, E-G, per Peter-Odili, JSC. However, that in the instant case, it failed to ascribe any evidential value to the evidence of the Appellant who testified as DW2. Instead, in disregard of the evidence of the Appellant, it invoked the doctrine of ‘last seen’ against him. On what this doctrine entails, reliance is placed on Haruna V AG Federation (2012) 9 NWLR (Pt. 1306) 419, 447, D-E.
Counsel submits that the doctrine of ‘last seen’, which connotes that the Appellant was the last person seen with the deceased prior to his death, is inapplicable to the case since the evidence was that the Appellant did not take the statement of the deceased and that he closed from work at 6:30pm. He argues that anyone could have had access to the deceased at the police station after he left and at the hospital.
Counsel further contends that the lower Court relied on the extrajudicial statements of the other accused persons to convict the Appellant. He submits that the statement of co-accused persons cannot bind the Appellant such as to ground a conviction against him and relies on Babatunde V State (2018) 17 NWLR (Pt. 1649) 549, 565-566, D-G. He further submits that the medical evidence tendered in respect of the deceased, Exhibit I, did not state that the deceased sustained injuries arising from being beaten with Exhibits E1 and E2, as alleged by the Respondent. Thus, it was not helpful in proving the cause of death and this was fatal to the Respondent’s case. He relies on Okeke V FRN (2020) 18 NWLR (Pt. 18) 118, 154-155, A-C.
Counsel also contends that there were contradictions in the evidence of PW3 and PW5 on the alleged beating of the deceased, and these contradictions were fatal to the case of the Respondent – Olayinka V State (2007) 9 NWLR (Pt. 1040) 561, 584, E, per Tobi, JSC. In addition, he contends that the evidence of PW1, PW2, PW5 and PW7 was hearsay and lacked evidential value as none of them were at the scene of the alleged beating. He relies on Osho V State (2012) 8 NWLR (Pt. 1303) 288, G-H, 289, A-B and Section 37 of the Evidence Act, 2011.
Counsel finally contends that the Respondent having failed to prove the ingredients of the offence charged, issue one should be resolved in favour of the Appellant.
In response, learned Counsel for the Respondent also set out the ingredients to be proved in an offence of culpable homicide not punishable with death under Section 224 of the Penal Code, Laws of Borno State. He submits that it is not in dispute that Hassan Mukhtar died. Rather the question is how the deceased met his untimely death. For evidence in proof of this, Counsel referred to the testimonies of PW1 to PW7, as well as the exhibits tendered by the prosecution, in particular, Exhibit I. He submits that the Appellant admitted in Exhibits D and G, as well as in his oral testimony, that he was among those that went to arrest the deceased and brought him to Gwange Police Station, where he and the 3rd accused person beat up the deceased in the presence of PW3. Counsel submits that this evidence was not challenged or discredited by the Appellant. Instead, it was further corroborated by the evidence of PW5, PW6 and PW7 to whom the Appellant volunteered his extra-judicial statements, Exhibits D and G, which were admitted in evidence without objection.
Counsel also refers to the evidence of the Appellant in Court as DW2 where he admitted taking the deceased to the charge room and assaulting him by pushing his head and/or slapping him twice. He also relied on the evidence of PW4 and that of PW2, as well as Exhibits A, D and G. Counsel submits that Exhibits E1 and E2, incriminating objects, were found in the investigation room by PW6, where the Appellant had admitted in Exhibits D and G and in his oral evidence that he had taken the deceased into to get his statement.
Counsel submits that the presumption in the doctrine of ‘last seen’ was rightly relied on to convict the Appellant because the Appellant and the two other accused persons all admitted to have been together with the deceased from when he was arrested up till when the Appellant alleged that he closed from work. Counsel submits that the evidential burden of proof then shifts to the accused person to prove how the deceased met his death, and relies on Umar V State (supra) & Omoregie V State (2018) 8 NWLR (Pt. 1620) 125-126, E-H.
In respect of the issue of medical evidence in proof of cause of death, Counsel submits that where the evidence placed before the trial Court through the testimonies of witnesses establishes the cause of death, and where death was instantaneous or nearly so, it obviates the need for any medical evidence. Reference is made to the evidence of PW1 – PW7 and Exhibits A, B, E1, E2, F and I. He relies on Womem V State (2019) 9 NWLR (Pt. 1781) 295, 345, E-E; Abdullahi V State (2019) 16 WRN 145, 175.
On the third ingredient of the offence which is that the Appellant likely or probably intended to cause the death of the deceased, Counsel submits that this can be inferred from the act of the Appellant, the weapon used and the part of the body where the injury was inflicted. He referred to the admission of the Appellant that he took the deceased into the investigation room where Exhibits E1 and E2 were later found by PW6. This was sufficient to establish the Appellant’s intention to inflict such bodily injury on the deceased which led to his death. He refers to evidence of PW2 to PW6, and relies on Kolade V State (2017) 8 NWLR (Pt. 1566) 60, 118 (C-E).
Counsel submits that the statements of the Appellant, Exhibits D and G, were free and voluntary, confessional in nature and were admitted in evidence without objection. Therein, the Appellant admits to have brought in the deceased to the Police Station hale and hearty until he was taken back into his cell unconscious, where he later died. He relies on Ikpo V State (2016) 13 NCC 513, 543 & Kolade V State (supra) to submit that a confessional statement does not become inadmissible merely because it is retracted at the trial. He urged the Court to hold that the surrounding circumstances leading to the death of the deceased irresistibly leads to the conclusion that the Appellant caused the death of the deceased. Counsel finally urged the Court to resolve this issue in favour of the Respondent.
RESOLUTION OF ISSUE ONE
In kick starting the resolution of this issue, it is pertinent to reiterate that the law as long established by case law is that there are three modes of proof of criminal cases. They are as follows:
a) By direct evidence, to wit: by the testimonies of eyewitnesses, i.e., witnesses who watched, heard or witnessed the commission of a crime committed by the accused person(s);
b) By a confessional statement voluntarily made by the accused person wherein he owned up to the commission of the offence; and
c) By indirect evidence, to wit: circumstantial evidence which points clearly to the fact that the accused person, and no other, committed the offence charged.
See Olaoye V State (2018) LPELR-43601(SC) 13, C-F; Anyasodor V State (2018) LPELR-43720(SC) 14-15, F-C.
It is also entirely the prerogative of the prosecution to decide how it intends to establish an offence against an accused person. The Court does not concern itself with the method of proof as may be adopted by the prosecution provided that proof beyond reasonable doubt, as required by law, will be secured. Thus, in an attempt to secure conviction, the prosecution is at liberty to rely on the evidence of a witness or witnesses or on the proven confession of the accused person or on strong circumstantial evidence. See Umar V State (2014) LPELR-23190(SC) 36, A-C.
In the instant case, it is evident that the prosecution relied on circumstantial evidence as well as direct eye witness evidence, to establish the charge against the Appellant.
The charge against the Appellant was as follows:
“That you Ahmed Sani ‘M’ of Gwange Police Station, Peter Joseph ‘M’ of Gwange Police Station and Mohammed Muazu ‘M’ of Londin Ciki Ward of Maiduguri on or about the 19th July, 2019 at about 1700hrs, at Gwange Police Division Maiduguri which is within the jurisdiction of this Honourable Court committed culpable homicide not punishable with death in that you arrested, handcuffed and beat one Hassan Muktar ‘M’ (now deceased) with a police baton and cable wire until he became unconscious and died in your custody, an act which you knew was likely to cause death and that you thereby committed an offence punishable under Section 224 of the Penal Code Laws of Borno State.”
Section 223 of the Penal Code, the definition Section of the offence, provides:
“223. If a person by doing anything which he intends or know to be likely to cause death commits culpable homicide by causing the death of any person whose death he neither intends nor knows himself likely to cause death, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.”
Section 224 of the Penal Code provides the penalty for the offence as follows:
“224. Whoever commits culpable homicide not punishable with death, shall be punished with imprisonment for life or for any less term or with fine or with both.”
This provision also sets out the essential elements of the offence which must be proved in order to secure a conviction. They are:
a) The death of the person in question.
b) That such death was caused by the act of the accused.
c) That the accused intended by such act to cause death or that he intended by such act to cause such bodily injury as was likely to cause death or that he knew that such act would be likely to cause death or that he caused the death by a rash or negligent act.
In proof of the charge against the Appellant, the Respondent called a total of seven (7) witnesses and tendered nine exhibits in evidence. The summary of the evidence of each witness is adequately captured in the judgment of the lower Court at pages 2-4 of the Record of Appeal. PW1 and PW2 are the mother and father of the deceased respectively. They both testified to the fact that their son, Hassan Mukhtar is dead and that he was subsequently buried eleven (11) days later when the corpse was released to them. Of significance is that when the police officers (that included the Appellant and 3rd accused person), went to arrest the deceased and take him to Gwange Police Station, it was his father, PW2, who called him out from the house and handed him over to the Police. Thereupon, the deceased was handcuffed in his presence and taken away. It is clear from the evidence of PW2 that at the time Hassan was handed over to the Police, he was hale and hearty. There was no indication that he was ill or that he would succumb to death a few hours later in the custody of the Police.
PW3, Fatima Samaila, the sister of the deceased, was arrested along with him. She is also the closest thing to an eyewitness that testified in the case. Her evidence establishes that upon their arrival at Gwange Police Station, the police officers set upon the deceased and beat him up to a pulp with an electric cable. The beating was concentrated on his head and chest and they “matched” (trampled on) him even as they continued to beat him. She identified the 3rd accused person as being among the persons who beat up the deceased. She kept crying and begging them to stop. However, instead of stopping, they took him away to the investigation room where, even though she could not see what they were doing to her brother, she heard his cries and shouts. When they later brought him out to the counter at the Police Station, Hassan could not stand and walk but was supported by police officers. When they asked him questions, he also could not talk and so she answered the questions put to him. They assisted in taking him to the cell. From the counter, she heard him drawing deep breaths. After some time, she could not hear him again. In the morning, she was told that her brother, Hassan, was dead.
PW4 was Sgt. Musa Usman. He was at the Gwange Police Station as the second-in-command of the team when the 2nd and 3rd accused persons, along with Sgt. Aminu, brought in the deceased and PW3 (his sister Fatima) on an allegation of assault of a police inspector. After he confirmed the information from the inspector allegedly assaulted, he detained PW3 behind the counter. His evidence thereafter (at page 14 of the Record of Appeal) is as follows:
“I ordered Peter Joseph (2nd accused) to take the statement of the deceased. Then Sergeant Ahmed Sani (1st accused) came and I ordered him to take over the investigation from the second accused person. My in-charge came in and I told her about the case. She said she was aware. First, second and third accused were with the deceased. First accused took the deceased to detention. That’s all I know.”
Under cross-examination, PW4 stated as follows:
“Yes I was at the station when everything happened. I did not see anything.”
At this stage, Counsel for the Respondent applied to declare PW4 a hostile witness. Without ruling on the application, the lower Court admitted his extra-judicial statement to the Police made at State CID Maiduguri in evidence as Exhibit A. In Exhibit A made on 20-07-19, PW4 had stated as follows:“… while on this process our incharge w/insp Hajara Faruq came in and we started hearing crying voice in the investigation room, w/insp Hajara Faruq asked who is crying, I told her Peter and Muazu is in the investigation room taking statement from one suspect let me go and see them. On my way to the investigation room, I saw Sgt. Ahmed Sani coming out of the investigation (sic) with a batton (sic) in his hand. I entered the investigation room and found the suspect sitting on the floor handcoft (sic) behind not in front as he was brought, but already beatened (sic). All I know is that Sgt. Ahmed Sani, Pc Peter Joseph and Muazu Mohammed Spy were the persons who beat the male suspect because I met them in investigation room when I heard the suspect crying where Sgt. Ahmed Sani was having batton (sic) in his hand, Pc Peter Joseph having wire cable in his hand and Muazu Mohammed hold key to the handcuff (sic).” (Emphasis supplied)
The Appellant (PC Peter Joseph) was clearly identified by name through the combined testimonies and statements of PW3 and PW4 as being among the persons who viciously beat up the deceased on the date in question.PW5 was also a police officer at Gwange Police Station while PW6 was a Police officer at the State CID Maiduguri respectively. They separately investigated the allegation against the Appellant and co-accused persons. PW5 recorded the statements of the 1st and 3rd accused persons at Gwange Police Station on 20-07-19, while the appellant/2nd accused person wrote his statement himself. The first statement of the Appellant is in evidence as Exhibit D. Thereafter, when the accused persons were transferred to the State CID Maiduguri, PW6 was detailed to investigate. He again recorded the statements of the 1st accused and the Appellant/2nd accused person, and these were admitted in evidence as Exhibits F and G respectively. PW6 also inspected the scene of crime, i.e., the investigation room at Gwange Police Station where he recovered Exhibits E1 and E2, a broken police baton and an electric cable wire. PW7, DSP Clement Jafia of the State CID, was the leader of the investigation team. Based on the allegation of PW3, buttressed by the statement of PW4, that her brother was beaten up by the accused persons with a police baton and a cable wire, PW7 along with PW6 went to the investigation room at Gwange Police Station where they recovered a broken police baton and an electric cable wire. PW7 also recorded Exhibit H, the statement of the 3rd accused person.
Confronted with these pieces of evidence, the Appellant in his evidence as DW2, admitted that he pushed the head of the deceased twice. He also admitted that PW4 indeed detailed him to investigate the allegation of assault against the deceased and that he was in the investigation room at Gwange Police Station with the deceased, the 1st and 3rd accused persons. He later left and closed from work at 6:30pm. The next morning, upon resumption at work he was informed that the deceased was dead. In his first extra-judicial statement, Exhibit D, the Appellant completely denied the allegation against him, while in his 2nd extra-judicial statement, Exhibit G, at the State CID Maiduguri, he admitted slapping the deceased twice in the investigation room before the 1st accused ordered him and 3rd accused person to leave the room. The significance of this statement is that it establishes that the Appellant took part in beating up the deceased and it also places him squarely at the scene of crime with the deceased and his co-accused persons. It further buttresses the statement of PW4 in Exhibit A that when he (PW4) entered the investigation room to see why the deceased was shouting and crying, he found the Appellant holding a cable wire and the 1st accused holding a baton. Thus, the Exhibit G is a confessional statement to the extent that the Appellant confessed unequivocally to, at the very least, dealing two slaps on the deceased. PW3 also testified that the Appellant was one of the policemen who dealt blows on the deceased particularly on his head and chest with a cable wire and trampled on him before he was dragged into the investigation room.
Before going into the nitty-gritty of the evidence, it is appropriate to examine the findings of the trial Judge and examine how he arrived at the conclusion that the Respondent had established that it was the act of the Appellant, in conjunction with the acts of the other accused persons, that led to the death of Hassan Muktar. These findings are captured in detail at pages 55-59 of the Record of Appeal. Suffice it to say that the learned trial Judge placed heavy reliance on the statement of the Appellant, Exhibit G, as well as the evidence of PW3 and Exhibit A (the extra-judicial statement of the PW4) to convict the Appellant. It is not out of place to reproduce a few extracts from the trial Court’s findings which pertains to the Appellant in the judgment at pages 57-58 of the Record as follows:
“The PW3 also testified that the deceased was being beaten in the investigation room. She was hearing his cries and she begged Inspector Abdullahi to be patient, but he told her that until the other two people that were at large are brought to the station. There is overwhelming evidence on the fact that the deceased was beaten… Aside this further testimony of PW3 that about 8p.m. the deceased was brought to the counter he could not walk, he was held and supported to walk. They sat him on a chair and asked him his name. He could not talk, she was the one answering the questions put to him by the police. After that they wanted to put him into the cell, he could not walk and the person that had the cell key supported him into the cell. At the cell, she was hearing him breathing deeply until after some time he stopped. She began to think he was dead. These show that the deceased was beaten and he died shortly afterwards.
And as to the role played by the DW2, PC Peter Joseph stated in his testimony that he pushed the head of the deceased twice. Similarly, in his statement at the C.I.D. on 21st July, 2019, Exhibit G, he stated that he slapped the suspect twice. Even this shows that he is not telling the truth. There is inconsistency in both, in any case either slapping or pushing the head of the deceased is less likely to put him in the state described by the PW3, i.e., he could not walk, he could not stand and he could not speak. The second accused is not telling the truth. What he did to the deceased is more than pushing his head twice or slapping him twice. He took actual part in beating the deceased with the Exhibits E1 and E2, which made him unconscious and later led to his death…
Where a person was beaten and he died instantaneously or nearly so as in this case, it is obvious that the beatings he received caused his death. According to the PW3, he was beaten on the head and chest and they matched him. There is no wonder he did not recover after that beating…” (Emphasis supplied)
These findings are completely in tandem with the evidence placed before the trial Court. I cannot therefore fault the inferences drawn from the pieces of circumstantial evidence adduced by the Respondent.
From the findings, there is no doubt that the learned trial Judge found that the nature of evidence placed before him was circumstantial in nature. Therefore, the submission of learned Counsel for the Appellant that there was no direct evidence, to wit: eyewitness evidence, to establish that the Appellant participated in so brutally beating up the deceased such that it led to his death a few hours later, does not detract from the sound findings and inferences drawn by the lower Court based on the cogent and strong circumstantial evidence placed before it.
On the nature of circumstantial evidence that is considered sufficient to prove a criminal charge, Oputa, JSC in Adio V State (1986) LPELR-183(SC) 22-23, G-C, aptly put it this way:
“Circumstantial evidence can prove a case beyond reasonable doubt. The local case of Joseph Ogunbayode and others, (otherwise known as the Apalara case), is an excellent example of proof beyond reasonable doubt based purely on inferences from circumstantial evidence. It is often said that witnesses can lie but circumstances do not, so in that sense, circumstantial evidence affords better proof beyond reasonable doubt.” (Emphasis supplied)
Thus, the weight and effect of the circumstantial evidence acted upon by the trial Court cannot be belittled simply because there was no direct evidence. Circumstantial is one of the legitimate ways of proving a criminal charge before a Court of law.
The Appellant also takes up issues with the invocation of the doctrine of ‘last seen’ to draw inferences from the evidence against the Appellant. The doctrine of ‘last seen’ has been entrenched in our jurisprudence. The doctrine simply enjoins the Court in a criminal trial to draw an inference that a person who was last seen alive with a person who was later found to have been killed or murdered, was the murderer, depending on the ascertained evidence as to the manner in which the deceased died. Where there is evidence as to what led to the death of the deceased, the trial Court is justified in applying the doctrine of ‘last seen’ by inferring that it was the Appellant, who was the last person seen with the deceased, that killed him. The ‘last seen’ doctrine also indicates that any accused person charged with murder would be required to offer some explanation as to how the deceased met his death. In Haruna V AG Federation (2012) 9 NWLR (Pt. 1306) 419, the Supreme Court per Adekeye, JSC further explained the law in the following terms:
“The doctrine of ‘last seen’ means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal.”
In the locus classicus on this doctrine, in Madu V State (2012) LPELR-7867(SC) 51-52, F-D, the Supreme Court per Ariwoola, JSC, expatiated the doctrine thus:
“In the Indian Supreme Court case of Rajashkhanna V State of A.P. (2006) 10 SCC 172, the Indian Supreme Court noted as follows:
“The last seen theory comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible.”
However, in S.K. Yusuf V West Bengal (2011), the same Supreme Court after referring to its earlier stand above further held that where there is a long time – gap between the “last seen together” and the crime, and there is a possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”. Even if the time gap is less and there is no possibility of others intervening, it is said to be safer to look for corroboration.”
See also Oladapo V State (2020) LPELR-50553(SC) 16-17, D-A, Kolade V State (2017) LPELR-42362(SC) 53-54, E-B Mbang V State (2009 LPELR-1852(SC).
Aligning the law to the facts in the instant case, the evidence of PW3 and PW4, as well as Exhibits D and G, place the Appellant with the deceased in the investigation room on 19-07-19, a few hours before his death. He was seen in the room with an electric cable wire (Exhibit A). The cries and shouts of the deceased were heard by both PW3 and PW4 when the Appellant and his co-accused persons were alone with the deceased in the investigation room. Shortly thereafter on the same day, the deceased was assisted out of the room unable to walk and to talk. He was then taken to the police cell where his laboured breathing could be heard for some time by PW3 (who was sitting at the police counter), after which she could not hear him again.
Now, even though there was nothing to confirm the precise time when the deceased died, the Medical Report (Exhibit I) categorically stated that the 1st accused person (Sgt. Ahmed Sani) brought the deceased to the Accident and Emergency Ward of the hospital, UMTH, already dead. Thus, by the combined effect of the evidence of PW3, PW4, Exhibits A, G, E1, E2 and I, I am of the view that the learned trial Judge was right when he invoked the doctrine of ‘last seen’ against the Appellant. This is because, as it relates to the death of the deceased, the Appellant, in conjunction with the 1st and 3rd accused persons, where the persons last seen with the deceased in an enclosure, the investigation room at Gwange Police Station, where he was thoroughly beaten up. His agonized cries and shouts were clearly heard by the PW3 and PW4 (Exhibit A). Shortly thereafter, the deceased was brought out of the investigation room completely incapacitated as he could neither stand nor walk nor talk, but only managed to draw deep laboured breaths. Thus, his death sometime that same evening or night, but certainly before the 1st accused person conveyed him to hospital the next morning where he was pronounced dead on arrival (DOA), had a direct link to the persons who were with him when he was heard crying and shouting shortly before he died.
No evidence was adduced or placed before the trial Court of any intervening factor, such as the deceased being manhandled by any other person after his encounter with the Appellant and co-accused persons. Instead, PW3 categorically stated that the deceased was brought out of the investigation room a completely broken man and obviously in distress. He was then helped into a police cell where, after some time, she could no longer hear his laboured breathing. This evidence is unchallenged and uncontroverted. Therefore, the trial Court was right when it invoked the doctrine of ‘last seen’ against the Appellant and his cohorts, and acted on it.
As was held by Adekeye, JSC in Haruna V AG Federation (supra), the Appellant and two accused persons were the last persons to be seen in the company of the deceased, and the circumstantial evidence is overwhelming and leads to no other conclusion but that they caused the death of the deceased. In the circumstance, based on the facts of the case, there is no room for acquittal.
On the contention of the Appellant that there was no medical evidence to establish the cause of death of the deceased, it is true that in a charge of culpable homicide such as this, medical evidence, which includes a medical report, may be desirable to establish the cause of death. However, the law is trite that it is not a sine qua non of proof of death. This is because the cause of death may be established by sufficient, satisfactory and conclusive evidence showing beyond reasonable doubt that the death of the deceased resulted from the particular act of the accused. Thus, where death is instantaneous or nearly so, medical evidence ceases to be of any practical or legal necessity. In Ogba V State (1992) 2 SCNJ 106, 125, Akpata JSC opined:
“It must also be remembered that although medical evidence to the cause of death is desirable it is not essential in all cases of homicide. In the absence of medical evidence, the Court can infer the cause of death from the circumstances of the evidence adduced before it.”
See State V Sunday (2019) LPELR-SC./709/2013, 18-19, F-C, per Okoro, JSC, Tobi V State (2019) LPELR-46537(SC) 10-14, E-A, per Sanusi, JSC, Saleh V State (2018) LPELR-46337(SC) 20-22, E-A, per Augie, JSC.
Consequently, where there is evidence that the deceased was hale and hearty before the occurrence of an offending act and death is instantaneous or nearly so, and there is no break in the chain of events from the time of the act that caused injury to the deceased to the time of death, the death of the deceased will be attributable to that act, even without medical evidence of the cause of death.
In the case of Posu V State (2020) LPELR-52518(SC) 7-10, A, Eko, JSC relying on a previous decision of the Supreme Court on the issue of the necessity or otherwise of medical evidence in proof of the cause of death, stated as follows:
“The dictum of Karibi-Whyte, JSC in Eric Uyo V AG Bendel State (1986) 2 SC 1, 31, 32-33 on the principle of causation, which the Respondent’s Counsel drew our attention to, is quite apposite. The learned jurist stated:
“The principle of causation dictates that an event is caused by the act proximate to it and in the absence of which the event would not have happened – so long as the cause of death is traceable to the injury inflicted by the accused, he would be held criminally responsible. See R v. Holland (1841) 2 M & W 351 and R v. McIntyre (1847) Cox CC 379.”
The important consideration for determining responsibility is whether death of the deceased was caused by such injuries. See R v. Effanga (1969) 1 All NLR 339. Even without any medical evidence, the proximate connection between the act of the Appellant striking the deceased with a knife on the chest (as he admitted) and the deceased slumping and dying on the spot immediately, in the circumstance, erase any reasonable doubt that it was the act of the Appellant that caused the death of the deceased. Medical evidence, in the circumstance, is unnecessary. See Ayo Gabriel V The State (1989) 12 SCNJ 33 and Owenso V Agbehin (1967) NMLR 120. It is not in every case of homicide that medical evidence is imperative for proof of cause of death.” (Emphasis supplied)
Thus, in situations where, from the testimonies of the witnesses, the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such situation arises where death was instantaneous or nearly so.
In the instant case, there was no evidence of any intervening factor that could have caused or aggravated the death of Hassan Mukhtar. The death of the deceased could therefore be regarded as instantaneous since there was no break in the chain of causation that could be attributed to the death of the deceased besides having been beaten by the Appellant and others charged along with him, with slaps, a baton and an electric cable wire. In these circumstances, the fact that Exhibit I, the medical report, did not state the cause of death since the deceased was pronounced dead on arrival, cannot be regarded as fatal to the case. See also Ukpong V State (2019) LPELR-46427(SC) 27-28, A-C and Ahmadu V State (2014) LPELR-23974(CA) 60-61, C-F.
From the case, as presented by the Respondent through its witnesses, evidence abounds that the deceased died a few hours after he was beaten up by the Appellant and co-accused persons while in the custody of the police in the investigation room at Gwange Police Station. This evidence was not successfully controverted by the Appellant. Thus, based on the position of the law that a Court can infer the cause of death from the evidence and circumstances of the case, I am satisfied that the findings of the trial Court that the death of Hassan Mukhtar was caused by the acts of the Appellant and others, notwithstanding that no medical evidence was led by the Respondent, is infallible. I therefore decline to disturb it.
The third ingredient of the offence is whether the Appellant, by slapping and beating the deceased with a cable wire along with other persons, intended to cause his death or that he knew that death or grievous injury would be the likely result of his actions, the learned trial Judge considered the nature of the weapons used and the parts of the body upon which they were used in his Judgment. In particular, at page 59 of the printed record are the deductions that led to his findings and they are reproduced hereunder:
“On intent, it can be inferred from the nature of weapons used and the part of the body smack (sic). There is evidence that the deceased was beaten with Police baton and it even got broken, that shows the force with which the deceased was beaten. PW3 said the deceased was beaten before her eyes. They beat his head and chest and they matched on him. Beating someone with Exhibits E1 and E2 on the head and chest and matching him at the same time, leaves the Court in no doubt that accused persons cared not if the deceased died or they knew or had reason to believe he could die. A man intends the natural consequences of his act. See Section 19 Penal Code. From the foregoing, I hold that the accused persons knew death or grievous bodily injury was the result of their acts.”
These are logical and reasonable deductions made from the evidence highlighted. They are also in alignment with the law. See Kolade V State (2017) 8 NWLR (Pt. 1566) 60, 118, C-E. I therefore decline to tamper with them.
In addition, the submission of Counsel for the Appellant that the conviction of the Appellant was based on the statements of his co-accused persons is baseless, as my analyses and findings above clearly establish. The conviction was largely based on the evidence of PW3 and PW4, as well as Exhibits A, G, E1, E2 and I. On the assertion that the evidence of PW3 and PW5 were contradictory, there is nothing further than the truth. Contrary to the contention of the Appellant’s Counsel, PW3 did not testify that she saw any open physical injuries on the deceased. What she stated was that he could neither stand nor walk nor talk after his encounter with the Appellant and co-accused persons. She also witnessed when some police officers, including the Appellant and 3rd accused person, beat him up targeting his head and chest as soon as they arrived at Gwange Police Station, before he was taken into the investigation room. Thus, the fact that PW5 stated that he did not see any injuries on the corpse of the deceased, does not in any way amount to a contradiction of the evidence of the PW3. Besides, it is quite pedestrian and a matter of common knowledge that not all injuries sustained by a person are visible to the naked human eye. For instance, internal injuries, bone fractures, etc., can mainly be diagnosed upon the conduct of proper medical examinations and/or tests.
Finally, the evidence of PW2, PW5, PW6 and PW7 was not hearsay as they simply served as the connecting tissue between other relevant and admissible pieces of evidence amassed before the trial Court. To break it down, the evidence of PW2, the father of the deceased, confirmed that when the deceased was arrested from his home on 19-07-19, he was hale and hearty. He also testified that he was subsequently called to identify the corpse of his son on 20-07-19 at 11:00am at the hospital, which he did and thereafter buried him eleven (11) days after his death. PW5, PW6 and PW7 were investigating Police officers at Gwange Police Station and the State CID Maiduguri respectively, to whom the Appellant and other accused persons made their extra-judicial statements, some of whom also visited the scene of crime. Their evidence therefore only comprised of the actions they took in the course of their investigations into the circumstances of the death of Hassan Muktar. The law is trite that this in no way constitutes hearsay evidence.
On the retraction of the Exhibit G, the confessional statement of accused (wherein he admitted slapping the deceased twice) at trial, it is settled law that a confessional statement made by an accused person is, in law, the best pointer to the truth of the role played by the accused in the commission of the offence. Its subsequent retraction in Court does not render the confessional statement inadmissible. Rather, it is the duty of the Court to determine the weight to be attached to it. This can be done by testing its truthfulness and veracity by examining the statement in the light of other credible available evidence. In this regard, the Court should consider:
a. Whether there is anything outside the confessional statement to show that it is true;
b. Whether it is corroborated;
c. Whether the facts stated in it are true as far as it can be tested;
d. Whether the accused person had the opportunity of committing the offence;
e. Whether the accused person’s confession is possible;
f. Whether the confession is consistent with other facts ascertained and proved at the trial.
Thus, once a Court is satisfied that the accused made the statement and also as to the circumstances which give credibility to the contents of the confession, it can safely convict an accused on his retracted confessional statement. Nevertheless, it is desirable that there should be some corroborative evidence outside the confession which would make it possible that the confession is true. See Alao V State (2019) LPELR-47856(SC) 23-24, E-F,Darlinton V FRN (2018) LPELR-43850(SC) 17-18, D-A, Awosika V State (2018) LPELR-44351(SC) 63-64, C-A, Asuquo V State (2016) LPELR-40597(SC) 13, B-E, Osetola V State (2012) 17 NWLR (Pt. 1329) 251, 278, Idowu V State (2000) LPELR-1429(SC) 44-45, F-A and Dawa V State (1980) 8-11 SC 236.
In the instant case, the evidence of PW3 and PW4, as well as Exhibits A, D and G corroborate the confessional statement in every material particular by confirming even more than he confessed to doing. By PW3’s evidence in particular, the Appellant started beating the deceased from the time they arrived at Gwange Police Station even before he was dragged into the investigation room. Therefore, the learned trial Judge rightly acted on Exhibits D and G, the statements of the Appellant, where he admitted that he pushed the head of the deceased and slapped him twice.
Therefore, based on all the above findings, I find that, contrary to the submissions and contentions of learned Counsel for the Appellant, all three ingredients of the offence of culpable homicide not punishable with death under Section 224 of the Penal Code, were proved by credible evidence against the Appellant. I therefore resolve issue one against the Appellant and in favour of the Respondent.
Issue two – Whether the admission in evidence of the written statement of PW4 as Exhibit A, and the reliance by the lower Court on the evidence of PW4 in convicting the Appellant, amounts to an infringement of the right of fair hearing to the Appellant and led to a miscarriage of justice?
Under this issue, learned Counsel for the Appellant submits that the trial Court, having declared PW4 a hostile witness on the application of the Respondent under Section 231 of the Evidence Act, 2011, the Court was obliged to reject the evidence of the PW4 in its entirety. He relies on Popoola V State (2018) 10 NWLR (Pt. 1628) 485, 499, D-E; Ibeh V State (1997) 1 NWLR (Pt. 484) 632, 652, C-D. He argues that the trial Court, after declaring PW4 a hostile witness, still admitted his statement in evidence as Exhibit A. The contents of the statement are at variance with the oral testimony of PW4 in Court, whose credibility had not been impeached by the Respondent as required by law as the Respondent did not cross-examine PW4 as a hostile witness in order to impeach his credibility as required by Sections 231, 232 and 233 of the Evidence Act, 2011.
Counsel submits that the trial Court, having declared PW4 a hostile witness, it was estopped from admitting his statement in evidence as Exhibit A and relying on same. He relies on Udosen V State (2007) 4 NWLR (Pt. 1023) 125, 147, A-F to submit that the reliance by the lower Court on the evidence of PW4 was erroneous and prejudicial to the right of the Appellant to a fair and just trial, thus occasioning a miscarriage of justice.
Counsel further argues that pursuant to the trial Court’s declaration of PW4 as a hostile witness, he was not cross-examined by the Appellant. His veracity regarding Exhibit A was not tested and yet the trial Court relied on same to convict the Appellant; and so that this infringes the Appellant’s right to fair hearing under Section 36(1) (4) & (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He relies on Eze V FRN (2017) 15 NWLR (Pt. 1589) 433, 465, E. Counsel therefore urged the Court to hold that the lower Court erred in law when it relied on the evidence of PW4 and Exhibit A to convict the Appellant. He finally urged the Court to resolve this issue in favour of the Appellant.
In response, learned Counsel for the Respondent submits that by Section 231 of the Evidence Act and Section 237(1) (b) (3) (a) & (b) of the Criminal Procedure Code both the prosecutor and the defence have the right to cross-examine and re-examine a witness. Thus, the failure of any of the parties to exercise these statutory rights cannot be blamed on the other party.
Counsel submits that even after the statement, Exhibit A, was admitted in evidence, the lower Court ordered that same be served on the Respondent and thereafter adjourned the case for the Appellant to prepare to cross-examine PW4 on its contents and to prepare its defence. Yet on the return date, the Appellant neither cross-examined PW4 nor re-called him as a witness to discredit him as provided under Section 237 of the CPC. Counsel relies on the recent decision of the Supreme Court in Igwe V People of Lagos State (2021) 7 NWLR (Pt. 1776) 425, 451-452, H-A to submit that the lower Court acted rightly when it relied on the evidence of PW4 and Exhibit A. He therefore urged the Court to also resolve this issue in favour of the Respondent, and to dismiss this appeal and affirm the conviction and sentence of the Appellant.
RESOLUTION OF ISSUE TWO
The relevant provisions of the Evidence Act, 2011 governing the procedure where a witness is declared hostile are contained in Sections 230-237 of the Evidence Act, 2011. A close examination of the proceedings of the lower Court contained at pages 14-15 of the Record of Appeal discloses that there was a comedy of errors by both Counsel to the Respondent (Complainant/Prosecution) and Counsel for the accused persons, as well as on the part of the lower Court. In the first place, the submissions of learned Counsel for the Appellant are based on a false premise that PW4 was declared a hostile witness. He was not, and the Record of Appeal does not bear this out.
The record discloses that PW4 testified in chief and thereafter, he was submitted for cross-examination. It was while he was being cross-examined that he made a statement that caused the Respondent apply under Section 231 of the Evidence Act to have the witness declared as hostile. Upon the PW4 admitting that he made a statement at the Police at the State CID, the Respondent tendered the statement in evidence. The Appellant objected to its admission on the sole ground that he had not been served a copy of the statement. In ruling on the application, the lower Court admitted the statement in evidence and ordered that same be served on the Appellant before PW4 continues with his evidence. The case was thereafter adjourned for the Appellant to continue his cross-examination. On the adjourned date however, neither the Appellant nor the Respondent nor the trial Court brought up or referred to the matter of further examination or cross-examination of the witness. Instead, the case simply proceeded with the evidence of PW5. No further reference was made to the application made by the Respondent to declare the PW4 hostile nor was there any subsequent ruling on the application.
On the options available to the prosecution where a witness starts to give evidence contrary to what he already said in his depositions to the Police, the Supreme Court per Belgore, JSC (as he then was, later CJN) pronounced as follows in Ibeh V State (1997) 1389(SC) 20-21, A:
“Once the prosecution discovers a witness is giving evidence contrary to what he already said in his depositions to the police, the options are as follows: one, if the witness intimates before he goes into the witness box that he would change his story, the prosecution will apply to the Court that he would be called only for cross-examination as his evidence is contrary to his previous deposition. The Court will accede to this and the evidence of this witness will be of no value to either side. Secondly, if the witness resiles on getting into the witness box on his previous deposition on the same case, the prosecution applies to treat him as a hostile witness. In such cases, the witness will be declared a hostile witness if the Court rules so. But before ruling, the Court must be satisfied as to the discrepancy in his previous deposition and evidence on oath. Once satisfied, the Court will rule the witness a hostile witness to be cross-examined by the prosecution.” (Emphasis supplied)
From what transpired in Court, PW4 was never declared a hostile witness as the Court did not rule on the Respondent’s application and none of the parties followed through on the issue. In addition, since no ruling was delivered on the application to declare PW4 hostile, he was not subjected to cross-examination on his previous statement by the Respondent. Thus, PW4 was simply treated as a regular prosecution witness and so the lower Court considered and assessed his evidence in its totality.
As was held by the Supreme Court in Arehia V State (1982) LPELR-13, C-D, per Uwais, JSC, the duty of the prosecution to treat its witness as hostile is discretionary. The law is settled that where the credibility of a witness is successfully impeached, his evidence loses probative value – Obri V State (1997) LPELR-2194(SC) 12, D-E.
However, in this instance, based on the facts on record, PW4 was not declared a hostile witness and his credibility was not impeached. His evidence as given was merely allowed to stand and the lower Court ultimately decided on the weight to be ascribed to it, as it is entitled to. The question now is, did this stultify or circumscribe the Appellant’s right to fair hearing in any way and therefore occasion a miscarriage of justice? Put another way, was the Appellant’s right to fair hearing breached such as to occasion a miscarriage of justice?
I find myself unable to agree with the Appellant in his submissions on this. This is because at no time was the PW4 declared a hostile witness by the lower Court, therefore the provisions of the Evidence Act referred to by Counsel were not in any way breached. While it is correct that an application was made to declare PW4 hostile when, upon cross-examination, he denied that he witnessed anything, the Respondent subsequently abandoned the application. The Appellant went along with this as he also did not bother to further cross-examine the witness on the next date of hearing after he had been duly served the witness statement, Exhibit A. Instead, he seemed satisfied with the very brief cross-examination conducted on the previous date in which his sole complaint against the admission of the document in evidence was that he had not been served with it.
In the light of the evidence on record, I do not agree with the Appellant that his right to fair hearing was breached by the lower Court. Instead, the record discloses that when the Appellant drew the Court’s attention to the fact that he had not been served a copy of the statement, the lower Court immediately ended the proceedings for the day and ordered that the Appellant be served PW4’s statement before he continued with his cross-examination. Thereafter, the prosecution expressly stated that he had no more questions for PW4. Surprisingly, a similar response is recorded for the Appellant as cross-examination was “Nil” – page 15 of the Record.
On the adjourned date, the Appellant on his own volition, having since been served a copy of PW4’s statement, failed to further cross-examine PW4. He simply went along with the continuation of the proceedings when the Respondent called the PW5 to testify. It is trite that equity aids the vigilant and not the indolent. The Appellant certainly had a right to cross-examine the Respondent’s witness, but he did not. There is no apparent reason on record for why he chose not to. This failure can neither be laid at the door of the Respondent nor at the door of the lower Court.
In addition, even though PW4 admitted to making Exhibit A, the extra-judicial statement to the Police, he was neither cross-examined on it by the Respondent/Prosecution with a view to impeaching his credibility nor was he at any time declared a hostile witness by the lower Court. Since that is so, Sections 230 to 237 of the Evidence Act (supra) as it relates to how evidence from a witness declared hostile should be treated, are inapplicable to the instant case. Based on these, I find the Appellant’s submissions on this issue rather baseless. Therefore, I resolve issue two also against the Appellant and in favour of the Respondent.
Having resolved both issues against the Appellant, I find no merit in the appeal. It fails and is dismissed.
Accordingly, I affirm the judgment of the High Court of Borno State in Suit No. BOHC/MG/CR/25/2020 delivered on 10 March, 2021 by A.B. Kumalia, J., as well as the conviction and sentence of the Appellant.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of reading before now the lead judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA, just delivered.
My learned brother exhaustively considered the issues presented to us for determination and I agree with the reasoning and conclusions arrived at, in the lead judgment, that the appeal has no merit, and it is also dismissed by me. In the end result the judgment of the lower Court delivered on the 10th of March, 2021, in Charge No. BOHC/25/CT12/2020, is hereby affirmed.
I abide by the consequential orders made in the lead judgment.
EBIOWEI TOBI, J.C.A.: I have read the lead judgment delivered by my learned brother, J. H. Sankey, JCA. My Lord has exhaustively covered the field in all the issues and matters arising from the judgment of the lower Court, the grounds of appeal and the submission of Counsel. My Lord did not only cover the field but stated the proper position of the law involved. I agree with the reasoning and conclusion therein. The lower Court was therefore in sound footing in convicting the Appellant for the offence he was charged under Section 224 of the Penal Code.
I adopt the judgment as mine and have nothing useful to add except to warn Police Officers that while carrying out their statutory duty of arrest, investigation and detention they must do so within the confines of the law and with the fear of God. They are not allowed by law to misuse their statutory power or indeed to use their power arbitrarily. Section 341 of the Police Regulations Cap P19 made pursuant to Section 46 of the Police Act makes any Police Officer who misuses his power to be liable. See Rev. Polycarp Mathew Odiong vs Assistant Inspector General of Police, Zone 6, Calabar (2013) LPELR-20698 (CA). The apex Court made this point clearly in Chief Gani Fawehinmi vs IGP & Ors (2002) LPELR-1258 (SC) in these words:
“It is inconceivable that such wide powers and duties of the police must be exercised and performed without any discretion left to responsible police operatives. Unless a statute which confers powers or imposes duties expressly or by necessary implication excludes the exercise of discretion, or the duty demanded is such that leaves no room for discretion, it is my view that discretionary powers are implied and whenever appropriate, exercised for salutary ends. In R. v Commissioner of Police of the Metropolis ex parte Blackburn (1968) 2 Q.B 118 at 136 Lord Denning M.R. observed inter alia: “Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere.”
No Court should accommodate the misuse of power by any Police Officer. The lower Court rightly in my view did not and His Lordship of this Court in the lead judgment has not. I will also not allow this. I condemn the action of the Appellant. For every human action, there are consequences and so the power drunk Appellant will have to pay for his action that has claimed human life.
For the above reason and much more for the fuller reasons in the lead judgment delivered by my learned brother, J. H. Sankey, JCA, I also dismiss this appeal as lacking in merit.
Appearances:
Emmanuel Bwala, Esq., with him, G. Yunusa, Esq. For Appellant(s)
K.S. Lawan, Esq., Hon. Attorney General Borno State, with him, S.A. Idrissa, Esq., DPP, E.H. Mohammed, Esq., PSC and H. Umar Esq., SC. For Respondent(s)
