SEBO BELLO V. THE STATE (2011)

SEBO BELLO V. THE STATE

(2011)LCN/4782(CA)

In The Court of Appeal of Nigeria

On Thursday, the 3rd day of November, 2011

CA/IL/C.14/2011

RATIO

STANDARD OF PROOF: WHETHER WHENEVER THE COMMISSION OF A CRIME BY A PERSON IS DIRECTLY IN ISSUE, IT MUST BE PROVED BEYOND REASONABLE; WHETHER ANY ELEMENT OF DOUBT IN RELATION TO ANY OF THE INGREDIENTS, THE DOUBT IS TO BE RESOLVED IN FAVOUR OF THE ACCUSED PERSON

A good starting point in the resolution of this issue is the well-known and most quoted maxim of our criminal law; that, whenever the commission of a crime by a person is directly in issue, it must be proved beyond reasonable. Not only that, the prosecution has the duty, which is an unshifting burden, to prove all and not merely some of the ingredients of the offence, charged beyond reasonable doubt. That is, the standard of proof is such that if there is any element of doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person. See Owe V. Queen (1961) 2 SCNLR 354; Omogodo V. State (1981) 5; SC Hassan V. State (2001) 4 NWLR (pt. 704) and Tanko V. State (2008) 16 NWLR (pt. 114) p. 597 at 632, paras D-F. In the case of Okoro V. State, (1988) 12 SCNJ p.191, the apex court (per Karibi-Whyte, JSC) explaining the reason for this strict demand on the prosecution said: “it is both constitutional duty imposed on the court, and the right conferred on the accused by the Constitution to ensure the purity of our criminal justice administration that the presumption of innocence of the accused is maintained inviolate. Accordingly, even where the point was not taken by the accused or his counsel, being fundamental to the jurisdiction of the court, it should be taken by the court… Where no case has been made out against the accused at the end of the case of the prosecution, asking him to answer the charge against him is a reversal of the constitutional provision by asking him to establish his innocence… The protection of the accused, presumed to be innocent, cannot be curtailed by the strength of the case founded on suspicion however strong. A conviction must be founded on evidence establishing the guilt of an accused beyond reasonable doubt”. PER TIJJANI ABDULLAHI, J.C.A

CULPABLE HOMICIDE PUNISHABLE WITH DEATH: THE ESSENTIAL INGREDIENTS THAT THE PROSECUTION MUST ESTABLISHED IN ORDER TO PROVE A CASE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH UNDER SECTION 221 OF THE PENAL CODE AGAINST AN ACCUSED PERSON

CIRCUMSTANTIAL EVIDENCE: WHETHER CIRCUMSTANTIAL EVIDENCE CAN GROUND A CONVICTION

The evidence adduced by the prosecution is circumstantial and can a circumstantial evidence ground a conviction? It has been held in a plethora of decided authorities that circumstantial evidence can ground a conviction. However for such evidence to ground a conviction it should irresistibly lead to one conclusion, the guilt of the accused. See Peter Igho v. The State (1978) 3 SC P.87, Popoola v. Police (1964) NMLR p. I; Taylor and Others v. R. 21 C.A.R. p.20 and Paulinus Udedibia v. State (1976) 11 SC 133 at 139. PER TIJJANI ABDULLAHI, J.C.A

CIRCUMSTANTIAL EVIDENCE: POSITION OF THE LAW WHERE CIRCUMSTANTIAL EVIDENCE IS CAPABLE OF TWO INTERPRETATIONS, ONE AGAINST AND THE OTHER IN FAVOUR OF THE ACCUSED

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

SEBO BELLO Appellant(s)

AND

THE STATE Respondent(s)

TIJJANI ABDULLAHI, J.C.A (Delivering the Leading Judgment): At the Kwara State High Court, holden at Ilorin, Coram I. B. Garba (J) the appellant herein (as an accused person) was charged with the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code on the 28th day of July, 2010. The charge against him reads thus:
“That you SEBO BELLO on or about the 24th day of December, 2006 at Bweru Fulani Camp via Yashikiri within the jurisdiction of this court committed culpable homicide punishable with death in causing the death of one Juliya Bio by cutting her on the neck with a cutlass and thereby committed an offence punishable under Section 221 of the penal Code.”
The case for the prosecution as can be gleaned from the record of proceedings was that on or about the 24th day of December 2006 at Bweru Fulani Camp, the appellant caused the death of the deceased, his wife by cutting her neck at about 2.00am.
On that fateful day, the appellant was said to have visited his wife, the deceased, who was then staying in her parents, house after child’s birth in accordance with the Fulfiled Culture and tradition. The cry of the deceased’s baby alerted the father of the deceased who went to the hut where the deceased was allegedly sleeping with the appellant around 2.00am only to find the deceased in a pool of her blood. The appellant was nowhere to be found. He was later arrested and arraigned before the court for trial.
On the 27th October, 2008 when the charge was read and explained to the appellant, he pleaded not guilty and the case proceeded to hearing. The appellant was found guilty and convicted of the offence of culpable homicide as charged. The learned trial judge held inter alia thus:
“In view of the above findings, I could not but agree with the prosecution that the charge of culpable homicide punishable with death is proved against the accused. He is therefore convicted as charged having found him guilty of the offence.”
The learned trial judge then sentenced the appellant to death by hanging until he is pronounced dead. That was on the same day he was convicted i.e. 28/07/2010.
Dissatisfied with the decision of the lower court, the appellant approached this court and expressed so by filing a notice of appeal which carries four grounds of appeal and sought for the following reliefs:
(a) That the appeal be allowed.
(b) That the conviction and sentence be quashed:
Learned counsel for the appellant, in a brief settled by Olalekan Yusuf Esq. distilled from the four grounds, two issues for determination to wit:
“1. Whether the conviction of the appellant can be supported having regard to the totality of evidence before the trial court. (Related to Grounds 1 & 3).
2. Whether there was a causal connection between the acts of the appellant and the acts leading to the death of the deceased. (Related to Grounds 2 & 4).”
For his part, learned counsel for the respondent did not formulate any issue for determination but adopted the two issues distilled for determination by the appellant’s counsel.
On the 10th of October, 2011, when the appeal came before us for hearing, learned counsel for both parties adopted their briefs as their arguments in the appeal. Learned counsel for the appellant, Mr. Yusuf adopted his brief dated and filed on the 16th February, 2011. Learned counsel urged us to allow the appeal and discharge and acquit the appellant.
On the other hand, learned counsel for the respondent, Mr. Mumini, Director of Public Prosecution, Kwara State, Ministry of Justice, adopted his brief dated and fifed on 18th March, 2011. He urged us to dismiss the appeal and affirm the judgment of the lower court.
From the onset, let me say that, Judges who sit to hear appeals are at liberty and have the power to adopt or even formulate issues that in their view would determine the real question in appeal. See Ikegwuocha v. Ohawuci (1996) 3 NWLR (pt. 435) p. 146, Aduku v. Adejoh (1994) 5 NWLR (pt. 346) p. 582 and Barde Egwa v. Moses Ciroma Egwa (2007) 1 NWLR (pt. 1014) pg.71 at p.76.Consistent with the above adumbration, the issues for determination formulated by the appellant’s counsel, on a close examination would reveal the fact that any of them taken, considered and resolved can determine the real question in this appeal. This being the case, this appeal will be considered and determined on issue number one as distilled by the appellant’s counsel.
ISSUE NO. 1
Issue No. 1 is whether the conviction of the appellant can be supported having regard to the totality of evidence before the trial court. Learned counsel began his consideration of this issue by restating the well known and most quoted maxim of our criminal law that; whenever the commission of a crime by a person is directly in issue, it must be proved beyond reasonable doubt by the prosecution; the burden never shifts and the proof must be beyond reasonable doubt. Once there is doubt that doubt must be resolved in favour of an accused person. For this proposition, learned counsel cited and relied on the cases of Tanko v. The State (2008) 16 NWLR (Pt.1114) page 597 at 632, paras D-F and Hassan v. State (2001) 6 NWLR (PART 709) p.286.
It is the contention of the learned counsel that in discharging the burden of proof alluded to above, the prosecution is required to produce plausible and credible evidence which may be direct; or if circumstantial it must be of such quality and cogency that a court could safely rely on it in coming to its decision. In support of this contention, learned counsel relied on the cases of Tanko v. The State (supra) at 636 -637, paras H-B and Adetola v. The State (1992) 4 NWLR (pt. 235) p.267.
Learned counsel further contended that for a successful prosecution of an accused charged under section 221 of the penal code, the ingredients listed below must be proved beyond reasonable doubt and they are:
(a) That the death of a human being has actually taken place;
(b) That such death has been caused by the accused person or persons.
(c) That the act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as:
(i) the accused knew or had reason to know that death would be the probable and not only the likely consequence, of his acts; or
(ii) the accused knew or had reason to know that death would be probable and not only the likely consequence of any bodily injury which the act was intended to cause.
See State v. Azeez (2008) 14 NWLR (part 439) @ 477, paras F-H. Also see Shande V. State (2005) 1 NWLR (part 907), page 219 @ 238, paras D-G.
Learned counsel submitted that the prosecution faired in its duty to discharge the duty of proving the charge against the appellant beyond reasonable doubt by failing to establish ingredients listed supra against the appellant. Learned counsel further submitted that the prosecution only succeeded in proving the 1st ingredient to the effect that deceased had died but her death was not linked to the act of the appellant and neither was any reasonable evidence of intention to cause death on the part of the appellant adduced before the trial court.
On the evidence of pw3, the father of the deceased, who was closest in proximity to the crime, learned counsel posited that pw3 admitted to not seeing the appellant killing the deceased but that he was alerted by the cry of the deceased’s baby and on getting to the hut of the deceased, he met her in the poor of her blood and suddenly concluded that the appellant was the culprit, just because, he claimed, the appellant visited them on the fateful day. This according to the learned counsel, made the witness (pw3) father of the deceased to inform the village head and a man-hunt was launched that led to the arrest of the appellant wherein he (appellant) told them that it was the will of God to kill his wife.
It is the contention of the learned counsel that though the evidence of PW3 established the fact that the deceased was killed but it fell short of establishing that it was the act of the appellant that caused the death of the deceased. The mere fact that appellant visited the deceased on the day of the incident bears no convincing and reasonable correlation with the death of the deceased, learned counsel further contended.
Learned counsel posits that the testimony that the appellant confessed to his captors that it was the will of God to kill his wife cannot be wholesomely relied upon, especially because such a statement could not have been a product free from coercion, force and apprehension of danger to his life at the time the statement was made.
Learned counsel contended that, the testimony of PW3, who is the father of the deceased ought to be treated with due caution as evidence of a close relative could be tainted with emotion and sentiments. The testimony, he further went on, ought to be treated as that of an interested party and must be scrupulously scrutinized and ought generally not to be given the same weight as the testimony of a disinterested witness. In support of the contention learned counsel relied on the cases of Maiyaki V. The State (2008) 3 NWLR (PT. 1075) page 429 at 455, paras B-D and Babalola V. Wellington (1998) 11 NWLR (PT. 572) 167.
It is the contention of the learned counsel that a court of law is not permitted to speculate, whether in civil or criminal proceedings. Relying on the case of Aiguoreghian V. The State (2004) 3 NWLR (pt. 860) p.367 at p.407, learned counsel submitted that the last seen principle as impliedly relied upon by the learned trial judge is not applicable in the instant case as there was no cogent and direct evidence before the trial court that the appellant was the person last seen with the deceased. On the evidence of PW2, it is the contention of the learned counsel that his evidence as the investigation police officer at best, only proves the 1st ingredient of the offence that, the death of a human being had actually taken place without more. It is his further contention that the holding of the learned trial judge to the effect that the accused actually admitted killing the deceased, his wife, because his wife regarded him as the commonest man in the society who cannot name his new child is erroneous. Learned counsel held the view that the statement was made in connection with the ill-fated confessional statement of the appellant which the learned trial judge rejected. It is trite law, learned counsel went on, that a rejected evidence cannot form the basis of findings of the court.
Learned counsel submitted that the evidence proffered by the prosecution herein lacks in exactitude and ought to be construed as raising a reasonable doubt in favour of the appellant. Learned counsel relied on the case of Ajose v. State (2002) 7 NWLR (part 766) p.302 at 0.319 paras D-E.
Learned counsel is of the view that the finding of the learned trial judge that, ‘the appellant embarked upon unremorseful denial and sojourn of blatant lies and described this as an episode of a betrayed husband’ is not borne out of the evidence before the court. Learned counsel submitted that, quite apart from the fact that lies told by an accused person do not relieve the prosecution of the burden of proof, an accused person enjoys the right of presumption of innocence under the Nigerian Criminal Justice. He referred us to section 36(6)(5) of the constitution of the Federal Republic of Nigeria, 1999 and the cases of Chianugo V. the state (2002) 2 NWLR (Pt. 750) p.225 at 236 and Shande V. State (2005) 1 NWLR (pt. 907) p.218 to buttress his submission on this point. We were urged to resolve this issue in favour of the appellant.
For his part, learned counsel for the respondent, J. A. Mumini, DPP, Kwara State Ministry of Justice submitted that the expression, prove beyond reasonable doubt as a cardinal principle of criminal liability is not and should not be taken for prove beyond every shadow of doubt. In criminal trials, the expression prove beyond reasonable doubt as contained in section 138 (1) of the Evidence Act is twin ford, that is, that an offence has been committed and that no other person other than the accused committed the offence. It is when these two essential elements have been established that the prosecution is said to have established its case beyond reasonable doubt. Learned counsel relied on the case of Miller v. Minister of Pensions. (1947) 2 All ER 372 of 373 H per Denning J (as he then was).
Learned counsel after reproducing in extenso the judgment of the learned trial judge as it relates to the standard of proof required in a criminal trial and how the appellant was linked to the death of the deceased, submitted that the prosecution has established the case of culpable homicide against the appellant beyond reasonable doubt as all the constituent ingredients of the offence were sufficiently proved before the trial court.
Learned counsel further submitted that although, no direct eye witness account of the gruesome murder of the deceased was available to testify for the prosecution, the prosecution was able to call in circumstantial evidence to establish a direct nexus between the death of the deceased and the act of the accused person which caused the death.
Learned counsel submitted that the efficiency of circumstantial evidence in proving cases beyond reasonable doubt was espoused by the Supreme Court in Amusa Opoola Adio and Anr v. The State (1986) 4 SC, 194 at pp, 219-220 per Oputa JSC. Learned counsel went on, to contend that, the appellant wrongly contended in his brief of argument that there was no link between the death of the deceased and the act of the appellant.
The contention of the learned counsel for the appellant as adumbrated above, learned respondent’s counsel went on, cannot stand the evidence led by the prosecution before the trial court. In the peculiar circumstance of this case, one pertinent question that should bother the mind of a reasonable tribunal is why did the accused/appellant who came to visit his wife at his in-laws place decide to escape at the hour of the night without any ceremony of course the only plausible answer to the above poser is that he decides to escape after the murder of the deceased learned counsel further contended.
On the evidence of PW3, the father of the deceased, learned counsel conceded that the testimony of a blood relation of a deceased person against the accused in a trial for a capital offence needs to be taken with caution but he submitted that it is not the law that the fact of existence of a relationship between the deceased and the prosecution witness by itself necessarily disqualifies his testimony. There must be something more than the mere relationship to warrant treating the testimony of such witness differently from other witnesses, learned counsel further submitted. For those submissions, learned counsel relied on the cases of Nwaemerji V. The State (1997) 4 NWLR (Pt. 497) 65 at 77-78 and Ubani V. The State (2003) 39 WRN 5t at 56.
Learned counsel after setting out a large portion of the evidence of PW3, the father of the deceased, submitted that with the pieces of evidence so set out, one would wonder what else the witness is expected to say to establish the fact that both the accused, the deceased and their only child slept in the hut on the fateful day. Learned counsel further submitted that the reference to ‘their hut’ in the evidence of PW3 Obviously refers to the accused/appellant and his deceased wife.
Learned counsel alluded to the submission of the learned counsel for the appellant in paragraph 4.10 wherein he held the view that the appellant’s admission of killing his wife is borne out from the rejected statement sought to be tendered through PW2, is erroneous against the following background:
“(a) The statement allegedly made by the appellant in the presence of the investigating police officer PW2 amount to an oral confession or an admission which is admissible in law. See Iyinola Omisore V. The State 3 NCC 60 at 69.
(b) PW3 in his testimony said when the accused/appellant was arrested by the police and the vigilante he made similar confession that it was the will of God to kill her”.
Learned counsel submitted that these two pieces of evidence cannot by any shred of imagination be said to be made in relation to the statement rejected in evidence by the learned trial judge. It is trite that confession can both be written or oral. It follows therefore that the mere fact that a confession was made orally does not in anyway detract from its legal relevance.
It is the submission of the learned counsel that on the evidence before the court, the prosecution has been able to establish its case beyond reasonable doubt as the evidence adduced before the trial court points to no one else but the appellant as the murderer of the deceased in this case. He urged us to resolve this issue in their favour.
RESOLUTION OF THE ISSUE
A good starting point in the resolution of this issue is the well-known and most quoted maxim of our criminal law; that, whenever the commission of a crime by a person is directly in issue, it must be proved beyond reasonable. Not only that, the prosecution has the duty, which is an unshifting burden, to prove all and not merely some of the ingredients of the offence, charged beyond reasonable doubt. That is, the standard of proof is such that if there is any element of doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person. See Owe V. Queen (1961) 2 SCNLR 354; Omogodo V. State (1981) 5; SC Hassan V. State (2001) 4 NWLR (pt. 704) and Tanko V. State (2008) 16 NWLR (pt. 114) p. 597 at 632, paras D-F.
In the case of Okoro V. State, (1988) 12 SCNJ p.191, the apex court (per Karibi-Whyte, JSC) explaining the reason for this strict demand on the prosecution said:
“it is both constitutional duty imposed on the court, and the right conferred on the accused by the Constitution to ensure the purity of our criminal justice administration that the presumption of innocence of the accused is maintained inviolate. Accordingly, even where the point was not taken by the accused or his counsel, being fundamental to the jurisdiction of the court, it should be taken by the court… Where no case has been made out against the accused at the end of the case of the prosecution, asking him to answer the charge against him is a reversal of the constitutional provision by asking him to establish his innocence… The protection of the accused, presumed to be innocent, cannot be curtailed by the strength of the case founded on suspicion however strong. A conviction must be founded on evidence establishing the guilt of an accused beyond reasonable doubt”.

It is pertinent to state at this juncture that in order to prove a case of culpable homicide punishable with death under section 221 of the penal code against an accused person, the law requires the prosecution to prove the following essential ingredients listed hereunder:
“(a) That the death of a human being has actually taken place;
(b) That such death has been caused by the accused person or persons.
(c) That the act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as:
(i) the accused knew or had reason to know that death would be the probable and not only the likely consequence of his acts; or
(ii) the accused knew or had reason to know that death would be probable and not only the likely consequence of any bodily injury which the act was intended to cause.
See State v. Azeez (2008) 14 NWLR (part 439) @ 477, paras F-H. Also see Shande v. State (2005) 1 NWLR (part 907), page 218 @ 238, paras D-G.”
Let me also state that the ingredients listed supra must co-exist and must each be positively proved beyond reasonable doubt before an accused person can be convicted. Where one or all of the ingredients are not proved, the prosecution cannot be said to have made out a case against an accused person and that such an accused is bound to be discharged and acquitted.
Now, having stated the law and all that, the question to be asked at this stage is; can it be said from the evidence adduced by the prosecution against the appellant, that the offence of culpable homicide punishable with death under Section 221 of the Penal Code has been proved beyond reasonable doubt as held by the learned trial judge?
To answer the question posed above, recourse had to be made to the evidence adduced by the prosecution in support of the charge laid against the appellant. A close look at the evidence adduced by the prosecution reveals the fact that there was no eye witness to the commission of the crime. The evidence adduced by the prosecution is circumstantial and can a circumstantial evidence ground a conviction?
It has been held in a plethora of decided authorities that circumstantial evidence can ground a conviction. However for such evidence to ground a conviction it should irresistibly lead to one conclusion, the guilt of the accused. See Peter Igho v. The State (1978) 3 SC P.87, Popoola v. Police (1964) NMLR p. I; Taylor and Others v. R. 21 C.A.R. p.20 and Paulinus Udedibia v. State (1976) 11 SC 133 at 139.

It has also been held that where circumstantial evidence is capable of two interpretations one against and the other in favour of the accused, then there was no proof beyond reasonable doubt. See State V. Muhtari Kura (1975) 2 SC 85 at 89. It was also held that where the facts accepted by the court called for an explanation and non was forthcoming, such circumstantial evidence was sufficient proof beyond reasonable doubt of the guilt of the accused. See Francis Tete Lawson and others V. The State (1975) 4 SC p.115.
Now, which evidence circumstantially linked the appellant with the murder of the deceased? As can be gleaned from the record of proceedings the deceased’s father who testified as PW3 and who was the closest in proximity to the crime testified as follows:
“PW3
Muslim. Male. Adult. Sworn on Holy Quran. Speaks Fulfude. I am Bio Umoru of Beru-Yashikira. I know the accused as my son in-law. There was no quarrel between my daughter and her husband (accused). But just one day the accused killed his wife. On the day of the incident at about 2 a.m. I heard the shout of their child. I then went to their hut where I met my daughter dead in a pool of blood. On that day the accused came on a visit to us. Whereas his wife had earlier been with us before the arrival of the accused. When I discovered that the accused had killed his wife, I then went out to tell the village head. The village head asked the police and the vigilante to go and bring the accused where the accused said it was the will of God to kill her.”
Whilst being cross-examined by the learned counsel for the appellant, he further averred thus:
“I am the father of the deceased wife of the accused. Myself and the mother of the deceased were in support of their marriage. It is true the deceased gave birth to the child in my house. According to our Fulfude culture, after the wife (deceased) would have been pregnant for 2 months or above she will come to her father’s house to deliver there and so, the deceased was in my house for 5 or 6 months before this incident. By our fulfude culture, the wife after delivery will stay in her parent’s house for about 6 months to one year. But this incident occurred 3 months after the delivery of the child by the deceased. The accused never requested for the return of the deceased after delivery either from me or from her mother. There was no any move to take the deceased from the accused and be given to another man, as there was no quarrel between them. I did not see the accused killing the deceased but met her in a pool of blood. The incident occurred at my compound in Baru where the accused cut the neck of the deceased”.
“Re-Exam: Nil:”
A close look at the testimony of this key witness for the Prosecution would clearly and indeed reveal that the deceased died, but there was no reasonable evidence before the trial Court from which any connection could be made between the death of the deceased and the act of the appellant. There was indeed evidence as testified by the witness that the appellant visited his house where the deceased was staying but there was no evidence as to the time the appellant visited the deceased. There was also no evidence as to whether or not the appellant slept with the deceased on the fateful day or he left before the deceased retired to her bed. This piece of evidence becomes crucial in view of the fact that the incident was said to have taken place around 2.00 a.m. The mere fact that the appellant visited the deceased on the day in question bears no convincing and reasonable correlation with the death of the deceased. On this score I cannot agree more with the learned counsel for the appellant when he submitted thus.
“Neither should the witness testimony that the appellant confessed to his captors that it was the will of God to kill his wife be wholesomely relied upon, especially because such a statement could not have been a product free from coercion, force and apprehension of present danger to his life at the time the statement was uttered. It should be pointed out here that the PW3 told the court that there was a joint man-haunt of the police and the vigilante for the capture and arrest of the appellant.”
It is instructive to pause here and state that, the findings of the learned trial judge that the appellant was sufficiently linked with the commission of the offence of killing the deceased, as against any other person at the time of about 2.a.m on the 24th day of December, 2006, when no other person slept with the deceased apart from the appellant, in view of what I adumbrated supra is gravely erroneous as is not borne out of the evidence before the Court.
I am of the considered view that it can be said that the evidence proffered by the prosecution herein lacks in exactitude and cannot be said to have led to only one conclusion, the guilt of the appellant. The fact that the appellant visited the house of PW3 alone cannot and ought not to be inferentially equated as giving rise to the ‘Last Seen Principle’ as the learned trial judge has done in this case. The visit may in the best case scenario, give rise to suspicion and suspicion in Law, no matter how strong can never be a ground for conviction in the absence of cogent and compelling evidence. See the case of Onah v. State (1985) 3NWLR (pt.12) P.236.
It is noteworthy to observe that this Court, per our erudite emeritus justice Niki Tobi (JCA) as he then was once held thus:
“Murder as an offence, carries a capital punishment. In order to convict an accused of murder, the prosecution must prove that the accused and no other person or persons committed the offence. Once there is any doubt, the slightest doubt, in the mind of the trial judge that some other person other than the accused committed the offence of murder, the trial judge must as a matter of our adjectival law resolve-the doubt in favour of the accused person. (underlining supplied by me for emphasis.) See Ajose v. The State (2002) 7 NWLR (pt. 766) p.302 at 319, paras D-E.
Again, in the case of Gambo Garba V. The State, unreported Appeal NO. CA/J/226C/2O05, this Court per I. G. Mbaba, J.C.A. said:
“I hold that, going by the evidence adduced before the trial court, that court was not right to have convicted the appellant and sentenced him to death. The case of the prosecution was replete with doubts and was wanting.
The work of a judge is a very delicate and sacred job especially as he is sometimes vested with the power to play God in determining the fate of his fellowmen. The office must be exercised in deep humility and utmost case and deference to the rule of law and fear of God, such that, if it becomes inevitable to pronounce on the death (or any punishment) of an accused person arraigned before him, after due trial, the evidence adduced and the law will stand to vindicate him in his decision.”
This brings me to the well-known maxim of our criminal jurisprudence that, justice delayed is justice denied. As a corollary to this, one cannot be wrong to say that justice rushed is equally justice denied. The question to be asked at this stage is this, can it be said that justice was not rushed in this matter? This question must be answered in the affirmative in view of the inexplicable reason why the statement of the appellant said to be confessional was rejected in evidence without conducting a trial-within-trial, simply because the prosecuting state counsel had conceded that same was obtained involuntarily in spite of the evidence of PW2 who recorded the statement of the appellant.
It is now settled beyond peradventure that once a statement is objected on the ground of involuntariness, a trial-within-trial should and ought to be conducted with a view of finding out whether or not the statement is admissible in evidence.

It is my considered view and I hold same very strongly that, justice in the words of the erudite emeritus Justice of the apex court, Irekefe, JSC, (as he then was) of blessed memory would cease to be just, if viewed only from the end of the accused. There must be justice from the end of the accused. There must be also justice from the end of the wronged. See Nafiu Rabiu V. The State (1980) NSCC 291 at 311 (paras 5-10).
Again, in the case of Okegbu V. The State (1979) 11 SC 56 at 68 also reported in (1979) NSCC 151 at 180 (para 45), our departed learned law lord, Aniagotu, JSC pointedly held that:
“It so often happens that in murder cases the defence usually talks of justice only in relation to the accused person. Very often justice as it affects the victim of the murder charge is either forgotten or ignored by the defence. But just as it is essential that justice be done to the prisoner, so must it also be done to the deceased who, even in the lonely depths of his grave, cries out loudly for the circumstances of his death to be justly examined and justice meted to him.”
I say no more on this aspect of the appeal under consideration.
Be that as it may, in the light of all that has been said, this issue must be resolved in favour of the appellant and against the respondent. The appeal of the appellant is meritorious and it is hereby allowed. The conviction and the sentence of the appellant are hereby quashed. The appellant is discharged and acquitted forthwith.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in advance the exhaustive judgment of my learned brother, T. Abdullahi (PJ) J.C.A. I agree with the said closely reasoned judgment, just pronounced.
The fact that the P.W.3 was the father of the deceased did not make his evidence for the respondent suspect, nor was the P.W.3 cross-examined to suggest he had the motive or tendency to give biased evidence against the appellant. P.W.3’s evidence was, therefore, not tainted. See Alo Chukwu v. The State (1992) 1 NWLR (pt. 217) 225, Ogunnezee v. The State (1998) 58 LRCN 3512, Aserta & Anor v. The State (1982) 4 S.C 78 @ 92.
The P.W.2, police sergeant Yahaya Kareem, was the investigator of the case. He spoke to the appellant through an interpreter, one Aliyu Galadima, who interpreted what the appellant told him from Fulfude or Fulani into English. It was in the course of the said investigation that the P.W.2 stated that the appellant told him that he “actually admitted killing the deceased, his wife, because his wife regarded him as the commonest man in the society who cannot name his new child.” (See P.W.2’s evidence on page 33 of the record of appeal).
Since the P.W.2 did not understand Fulfude or Fulani language and got the above quoted piece of information from the appellant who spoke through an interpreter, the said interpreter should have testified in the case to supply credence to the said damaging statement. He did not testify. The said piece of evidence is, therefore, hearsay. For it was held by the then Federal Supreme Court in the case of Zakwakwa of Yorro v. The State (1960) 5 F.S.C. 12 @ 13 that:
“…if it was P.C. Musa who did the interpretation, and not L/Cpl. Umoru, then since P.C. Musa was not called as a witness and subject to cross-examination, the Hausa version and English version are hearsay.”
The court below was, with respect, in error to have relied on the said piece of hearsay evidence as one of the reasons to find the appellant guilty of the offence charged. (See reasoning (5) @ page of the record of appeal).
The finding made by the court below that the appellant slept with the deceased and was linked with her murder (see page 51 of the record of appeal vis-Ã -vis the scanty evidence of the P. W. 3 @ page 35 thereof and the appellant’s evidence in denial @ page 43-44 of the same record of appeal.) was not supported by evidence in the record of appeal and should not have influenced the court below to draw the inference that the appellant was the only person seen with the deceased before her death and was, on that account, guilty of her murder on the doctrine of last seen alive.
The court below referred to the evidence of the appellant as “a sojourn of lies” which influenced it to find against appellant in its judgment. But mere telling of lies by an accused person is not evidence of guilt. It may arise from fear, temerity, stupidity or the anxiety of the accused person to save himself without relieving the prosecution of the burden of proving the guilt of the accused beyond reasonable doubt. See Okpere v. The State (1971) 1 All NLR page 1 @ page 5.The circumstantial evidence gathered from the evidence of P.W.3 was, therefore, not complete or unbroken chain of evidence. In other words, it was inconclusive and meagre to draw the reasonable inference therefrom that the appellant and no other person (unknown) murdered the deceased. See Ukorah V. The State (1977) N.S.C.C 218 @ 222 as follows:
And, again, the learned author of Wills on Circumstantial Evidence on the same page makes reference to a direction of the Court (and to which, we think, we should draw attention, with approval) in the case of Emperor v. Browning 39 I.C. 322 where it was stated:
“in a case in which there is no direct evidence against the prisoner but only the kind of evidence that is called circumstantial, you have a two-fold task; you must first make up your minds as to what portions of the circumstantial evidence have been established, and then when you have got that quite clear, you must ask yourselves, is this sufficient proof? It is not sufficient to say, ‘if the accused is not the murderer, I know of no one who is. There is some evidence against him, and none against anyone else. Therefore, I will find him guilty.’ Such a line of reasoning as this is unsound, for experience shows that crimes are often committed by persons unknown who have succeeded in wholly covering their tracks.” (my emphasis).”
For the above reasons and the more detailed reasons given by my learned brother Abdullahi, J.C.A., in the judgment just pronounced by him, I too would allow the appeal and abide by the consequential orders contained in the said judgment.

ITA GEORGE MBABA, J.C.A: The decision of the court below, convicting the Appellant for murder, was founded on circumstantial evidence, following the curious rejection of the alleged confessional statement by the Appellant.
Learned Counsel for the Prosecution had applied to tender the statement of the Accused person as identified by the PW2 (Investigation police Officer – I.P.O), as an Exhibit in the case. It was objected by the Counsel to the Appellant “on ground of involuntariness”. Interestingly, the learned Counsel for the Prosecution (D.P.P.) conceded and said: “I concede to the objection of the Learned Counsel for the accused on the ground of involuntariness”.
Of course, the Trial Judge, there and then, ruled that the statement sought to be tendered was not taken voluntarily and the same was rejected. (See Pages 34 and 35 of the Record)
That placed extra burden on the prosecution to prove the guilt of the Appellant as it became obvious that the prosecution had no more record before the court to show that the Appellant (Accused) had even been confronted with the charge leveled against him and afforded opportunity to deny it or state his own side before being charged to Court!
The entire arraignment procedure, therefore, became questionable (See Section 36 (5) (6) (a) (b) of the 1999 Constitution). By even conceding that Appellant did not make statement to the police voluntarily (that is, that the alleged confessional statement was extracted under duress), the prosecution had undermined their case, and were putting the court on notice, by so doing, of their defective process of arraignment, to be wary.
To rely on a circumstantial evidence to ground conviction in a murder trial, such evidence must be cogent, complete and point, conclusively, at the direction of the accused person as the last reasonable explanation of the cause / source of the death of the deceased. See the case of EBENEHI V. THE STATE (2009) ALL FWLR (Pt.458) 251. In the case of OSUOHA V. THE STATE (2010) 16 NWLR (Pt 1219) 364, held 17, this Court, founding on myriad of leading authorities had held, on the nature of circumstantial evidence that can ground conviction, as follows:
“Circumstantial evidence sufficient to support a conviction in a criminal trial, especially murder, 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 fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The cause of death must be linked to the act of the accused, with certainty and clarity and not on the basis of conjecture, imagination or loose induction and it must be proved that the accused knew that his act will result in death or did not care whether the death of the deceased will result from his act.” AKPA V. STATE (2008) 14 NWLR (Pt. 1106) 72; KADA V. STATE (1991) 8 NWLR (Pt.208) 134; AHMED V. STATE (2001) 18 NWLR (pt. 746) 622; OMONGA V. STATE (2006) 14 NWLR (pt. 1000) 532 referred to.
In this case, there is no direct or positive evidence that links the Accused (Appellant) with the death of his wife, apart from the mere assertion of the PW3 (the father of the deceased), who strongly accused the Appellant, but could not come up with any tangible evidence to buttress his suspicion. He (PW3) merely said that the Accused person visited the wife in his (PW3’s) compound. He did not say whether the Accused went to stay with the wife when he visited and/or was with her before she was killed. He merely said:
“…Just one day the accused killed his own wife. The day of the incident, at about 2a.m, I heard the shout of their child. I then went to their hut where I met my daughter dead in a pool of blood. On that day the accused came on a visit to us…. when I discovered that the accused had killed his wife, I then went out to tell the village head …” (pages, 35 and 36 of the record)
Under cross examination, he said:
“…. I did not see the accused killing the deceased but met her in a pool of blood. The incident occurred at my compound…”
PW3’s evidence further revealed that there was no quarrel between the Accused and his wife before the incident, which cast more doubt on his assertion that Accused killed the wife! No other evidence corroborated the suspicion of the PW3.
I think the learned trial judge was therefore in error when he held that “the Accused slept in the same hut with the deceased” (that night). (See page 50 line 28 and 29 of the Record) That must have led him to the wrong and perverse conclusion that the offence was proved.
The Judge can only pronounce his judgment based on the evidence before him and not on a whimsical feeling or deductions or inference that appeals to emotion and conjecturing. This becomes more so in a criminal matter that carries capital punishment as the only option / sentence. That is why every judge must act with extreme caution in the assessment of the evidence before him, and the law stipulates stringent method / procedure to establishing the guilt of an accused, to ensure that no innocent person is punished unjustly and wrongly. This approach may leave some loop hole for exploitation by criminals, but that accord with the law, which reckons with our human frailties, since the judicial process is manned by human beings not God.
I think it is proper to observe this strict principle to proof of guilt in criminal trials in order to protect the innocent, when throwing dragnet against criminals even in a crime invested society. See the case of ONAFOWOKAN V. THE STATE (1987) 7 SCNJ 233 at 243 to 244; GARBA V. the STATE (unreported decision of this Court) in CA/J/226C/2005, delivered on 9/12/10, page 22 thereof.
Even if the guilty manages to escape justice, there is this belief and it is a fact of common knowledge that a criminal may succeed in evading justice some of the time, yet the day of reckoning remains, sooner or later!
It is for this reason and other reasons, more elaborately made in the lead judgment by my learned brother, TIJJANI ABDULLAHI JCA, the draft of which I had the privilege to read and agree with completely, that I too hold that this appeal has merit and should be allowed.
Accordingly I allow the Appeal and abide by the consequential orders in the lead judgment.