SAMBO ALH. GALADIMA v. THE STATE
(2013)LCN/5903(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of February, 2013
CA/K/142/C/2010
RATIO
CAUSATION: WHETHER A COURT CAN DISPENSE WITH MEDICAL REPORT OR IS NOT BOUND BY MEDICAL EVIDENCE IN PROOF OF THE CAUSE OF DEATH OF A DECEASED
I agree, completely, with the learned Counsel for the Respondent, that where death occurs on the spot, upon an attack on a victim of an unlawful assault by assailant(s), who used lethal weapon(s) on the delicate or fatal part of the body of the assailed, an eye witness account of the attack would readily and conclusively pin the act of the assailants to the cause of death of the deceased, and so production of the lethal weapon or medical evidence of the cause of death, though desirable, would be dispensable, in the circumstance. See the case of ONYIA V. STATE (2006) 11 NWLR (Pt. 991) 267 at 292 (held 11 and 12), where my Lord, IBIYEYE JCA (as she then was) said: “11. In murder cases, a court can dispense with medical report or is not bound by medical evidence in proof of the cause of death of a deceased. It is so because even with or without medical report, a trial court can still infer the cause of death provided there is clear and sufficient evidence that death of the deceased was the direct result of the unlawful act of the accused person to the exclusion of all other reasonable possible causes. In other words, medical evidence is not a sine qua non in all cases of murder. Where the victim dies and the evidence leaves no doubt as to the manner of cause of death, medical evidence may be dispensed with. Thus, where a man was attacked with lethal weapon and died on the spot, it is hardly necessary to prove that cause of death. It can properly be inferred that the wound inflicted on the deceased caused his death. In the instant case, it was established that the act of the appellant who hit the deceased with a dagger on his left breast led to the death of the deceased. The irresistible inference was that the act of the appellant caused the death of the deceased. Medical evidence would only support the inference; IBAKURI V. STATE (1965) NWLR 163; BWASHI V. STATE (1972) 6 SC 93; ILORI V. STATE (1980) 8 – 11 SC 81; UYO V. A.G., BENDEL STATE (1986) 1 NWLR (Pt. 17) 418; EHOT V. STATE (1993) 4 NWLR (Pt. 290) 644; EFFIONG V. STATE (1998) 8 NWLR (Pt. 562) 362; BEN V. STATE (2005) 11 NWLR (Pt. 936) 335; IGAGO V. STATE (1999) 14 NWLR (Pt. 637) 1 referred to (Pp 291 – 292, paras. H – D; 296, PARAS. C-G) 12. Where in a murder case eye witnesses’ accounts bear out an accused person as the killer of the deceased with a lethal weapon and where the deceased died on the spot, the offence has patently been proved beyond reasonable doubt and in such a case medical evidence and even the weapon used to perpetrate the heinous act cease to be practical legal necessity or sine qua non to establish the cause of death. (ULUEBEKA V. STATE (2000) 7 NWLR (Pt. 665) 404; EFFIONG V. STATE (1998) 8 NWLR (Pt. 562) 362; ONWUMERE V. STATE (1991) 4 NWLR (Pt. 186) 428 REFERRED TO.) (P, 292, Paras, E – H)” Per ITA G. MBABA J.C.A
CRIMINAL LAW: ESSENTIAL ELEMENT OF THE OFFENCE OF CULPABLE HOMICIDE
In the case of MICHEAL V. THE STATE (2008) 13 NWLR (Pt. 1104) 361 at 377, my Lord MUSDAPHER JSC (as he then was). Held: “It is also trite that a basic and essential element of the offence of culpable homicide required to be proved that the cause of death must be linked to the act or omission of the accused. See DARA KADA V. THE STATE (1991) 8 NWLR (Pt. 208) 134; NWAKEDI V. C.O.P. (1977) 3 SC 35. Where the deceased died on the spot soon after an injury was inflicted by the accused person, the accused person will be guilty of causing the death. See ADAMU V. KANO NA (1956) SCNLR 65; BAKURI v. THE STATE (1965) NMLR 163.” Per ITA G. MBABA J.C.A
EVIDENCE: REQUIREMENT OF THE LAW ON THE PROSECUTION TO PROVE BEYOND REASONABLE DOUBT
It has been stated several times that the requirement of the law, that a criminal charge has to be proved beyond reasonable doubt,”does not mean proof beyond any shadow of doubt. Once the proof drowns the presumption of innocence of the accused, the court is entitled to convict him, although there could exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless, and pins him down as owner of the mens rea or the actus reus or both, the prosecution has discharged the burden placed on it. See the diction of TOBI JSC in the case of GOLDER DIBIE V. STATE 2007) 9 NWLR (Pt. 1038) 30 at 56 – 57. See also MICHEAL V. STATE supra) at 384. Per ITA G. MBABA J.C.A
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
HABEEB A. ABIRU Justice of The Court of Appeal of Nigeria
Between
SAMBO ALH. GALADIMA
HARUNA ALH, GALADIMA
SHABE ALH. GALADIMA Appellant(s)
AND
THE STATE Respondent(s)
ITA G. MBABA J.C.A (Delivering the Leading Judgment): Appellants, with two other persons, were accused person in charged No. IDU/21C/96 at the Jigawa State High Court, presided over by Hon. Justice A. S. Tahir. They were tried for Culpable Homicide, offence punishable by death and at the close of the case for the prosecution; the learned trial Court discharged the 4th and 5th Accused persons, leaving the 3 Appellants to defend themselves. At the close of the entire trial the Court found them guilty, and sentenced them to death by hanging, pursuant to section 221 (b) of the Penal Code Law.
Appellants could not pursue their appeal until their case was assigned to the Chambers of A. S. Mukhtar and Co, by the Attorney General of the Federation, under the prison Decongestion Programme of the Federal Government.
Appellants filed their Notice of Appeal, upon being granted leave to do so by this Court, on 4/3/2010, and disclosed 8 grounds of Appeal, as PER PAGES 57 to 63 of the Record of Appeal.
Appellants filed a Joint Brief of Argument on 6/7/2010 and distilled five (5) Issues for the determination of the Appeal, as follows:
“(1) Whether it was established that the appellants had a pre-conceived idea to kill the deceased. (Grounds 1 and 2 of the Appeal)
(2) Whether the Appellants could be said to have conspired and actually killed the deceased.
(3) Whether the prosecution could be said to have proved beyond reasonable doubt that it was the act of the Accused persons that actually caused the death of the deceased.
(4) Whether the Appellants could be said to know that death of the deceased would be the natural consequence of their act assuming, without conceding, that they attacked her.
(5) Whether death sentence by hanging is not too harsh a punishment on the Appellants in the circumstances”
Issues 2 and 3 (argued together) were distilled from grounds 5, 6 and 7 of the Appeal; Issue 4 from grounds 3 and 4 and Issue 5 from grounds 7 and 8. Appellants also filed a Reply Brief on 25/10/2011, on being served with the Respondents’ Brief of Argument.
The Respondent filed its Brief on 11/10/2011, with the leave of Court, and distilled a sole issue for determination, namely:
“Whether from the totality of evidences (sic) adduced before the trial court, the learned trial judge was right in convicting the Convicts/Appellants for the offence of Culpable Homicide punishable with death and sentenced them to death accordingly.”
The Appeal was heard on 17/1/2013, when the counsel, on behalf of the Parties, argued the Appeal and urged us, accordingly.
A brief facts of the case at the Lower/court shows that Appellants, with 2 other persons were accused of killing one Safiya Nomau (female) by attacking and hitting her with stick and a hoe on the head and other parts of her body. The prosecution called five witnesses to prove the charge, among them 2 eye witnesses of the offence. The medical doctor who conducted the postmortem examination was, however,not called as a witness. The scene of crime was a disputed land, where the PW2 said the Appellants met the deceased and killed her, using stick and a hoe.
He (PW2) reported the case to their Village head and the Appellants confessed the offence before the Village head, PW3; PW3 corroborated the report of the PW2 and the confession by the Appellants. The deceased body was conveyed to the hospital and the matter reported to the Police for investigation. The Police confirmed injuries on the head and body of the deceased.
The Learned trial court found each of the Appellants guilty of culpable homicide punishable with death, contrary to section 221 (b) of the Penal code, convicted and sentenced them to death. See Page 46 of the record.
Arguing Issue one, OTUNBA SANYA OGUNKUADE ESQ. (who settled the brief), submitted that the prosecution had not shown in evidence that Appellants had a pre-conceived plans to kill the deceased; that the Learned trial judge conclusion (on this) was faulty and had no facts to support it; that the evidence of Pw2 on this which the Court relied on was hearsay. He referred to page 14 of the Record, where Pw2 said the Accused persons’ family held a meeting where they (family member) planned to kill the deceased, if they saw her in the disputed land, but said that he was told all that. He submitted that this evidence was not plausible, but the Court believed it and that of the Pw4, on the dispute over the land, to convict the Accused: He added that even the Pw4 had told the court that the deceased never quarreled with the accused persons, when their Civil Case was going on. He then wondered what would have been the basis of the alleged meeting and plan to kill the deceased.
Counsel urged us to disbelieve the Prosecution and reverse the findings of the trial court.
On Issues 2 and 3, which the Appellants’ counsel argued together, he submitted that the trial court wrongly believed the evidence of the prosecution witnesses, that Appellants’ attack on the deceased occasioned her death; that the lower court failed to consider the defences put forward by the Appellants; he argued that the prosecution did not prove that Appellants, indeed, attacked the deceased, and that her death was a direct consequence of their actions, removing any other possibilities; that by law the prosecution in a murder charge must prove the cause of death with certainty. He relied on the case of FRIDAY AIGUOREGBIAN and ANOR. V. THE STATE (2004) 3 NWLR (Pt. 860) 36, holding 4.
Counsel said that the 1st and 2nd Appellants had denied having any confrontation with or attacking the deceased, and their evidence on that was unshaken; that even though the 3rd Appellant, in his evidence, claimed that the deceased and her husband confronted him and the other Appellants on the disputed farm land, that all they did was to defend themselves by disarming the deceased husband and pushing him away from attacking them; that the trial court convicted the Appellants principally on the evidence of the Pw2 and Pw4, who claimed to be eye witnesses, whereas the conclusion of the trial Court and the belief of the evidence of the purported eye witnesses were erroneous and lacked any factual or credible basis. Counsel reproduced the relevant evidence of the Pw2 and Pw4 and called attention to the areas he questioned their veracity and concluded that the Pw2 was a planted and tainted witness and that the evidence of the two were contradictory, unreliable and incredible. He urged us to disbelieve the Pw2 and Pw4, and relied on the case of AMOS AJOSE v. THE STATE (2002) 7 NWLR (Pt. 8) 302 at 321; OLUDOTUN OGUNBAYO v. THE STATE (2002) 15 NWLR (Pt. ?) 76 at 91 and 103.
Counsel further submitted, that in view of and contradictions in the testimonies of Pw2 and Pw4 (heavily relied upon by the trial court), the identity of the attackers of the deceased, and who among them did what, and what led to the death, cannot be said to be ascertained with the required certainty; that it is not for the court to pick and choose which of the conflicting evidence he wants to use. He relied on the case of GAMBO MUSA V. THE STATE (2007) 11 NWLR (Pt. 1045) 202 AT 214 – 215; OMBOGU V. STATE (1974) 9 SC 1; NWABUEZE v. STATE (1988) NWLR (pt, 86) 16; BOY MUKA v. STATE (1976) 10 SC 305 AND DOGO v. STATE (2001) 3 NWLR (Pt. 699) 12 at 92.
He submitted that since the 2 witnesses (pw2) and Pw4) were the only people who claimed to have witnessed the killing, and their evidence are unreliable and discredited, it cannot be said that the ingredient of actus reus has been established – that is, whose act (of the Appellants) actually caused the death of the deceased; that that must be proved beyond reasonable doubt. He relied on the case of Friday Aiguoreguian and another V. State (Supra) at 414 – 415 where ONU JSC said:
“The cause of death of the deceased should be established with certainty, because the act which caused the death is in most cases a certain act.”
Counsel further submitted that failure of the prosecution, to prove the cause of death by medical evidence is fatal to their case; that even though the body of the deceased was taken to the Hospital, after her death no evidence of any post mortem examination was offered by the prosecution to show the actual cause of death; that the medical report was necessary as the evidence of the witnesses did not explain the gravity of injury, allegedly, inflicted on the deceased, and that it was the injury that eventually led to the death of the deceased. He submitted that in this case, it could not be said that the attack unleashed on the deceased (if any) by the Appellant, caused her death; that the withholding essential evidence (of medical report) raises questions and creates serious doubts as to the link between the alleged act of the Appellants and the death of the deceased, He cited the case of EDOHO V. THE STATE (2006) 5 NWLR (Pt.865) 17 at 46, where it was held that medical report is desirable to prove the cause of death in murder trials.
Appellants’ Counsel further submitted that the evidence of the 3rd Appellant cannot help the prosecution; that all he (3rd Appellant) said was that the other 2 Appellants, were in the farm when the deceased and her husband met them; that that evidence for whatever it is worth, cannot be used as evidence against the other accused persons, especially as the Co-accused did not adopt the same or agree with it. He relied on the case of STATE VS. SQN. LEADER ONYEUKWU (2004) 14 NWLR (Pt. 893) 340 at 378 – 379, as per MUSTAPHER JSC;
“…. evidence of one defendant cannot in a criminal trial be received as evidence either for or against another defendant, the reason being otherwise there would be a great danger that one defendant would be tempted to exculpate himself at the expense of his co-defendant.”
Counsel urged us to resolve this issue in the Appellants favour and allow the appeal.
On Issue 4, Counsel submitted that even where Appellants were held to have unleashed the attack on the deceased that they could not be said to have known that death would be the probable consequence of their act. He added that the proof of this vital ingredient rests squarely with the prosecution; that the prosecution must show, in evidence, the very parts of the body the attack was unleashed and the gravity of the injury sustained. He re-asserted the need for medical report to say what, infact, caused the death. He relied on the case of YOUNG UGWU V. THE STATE (2002) 9 NWLR (Pt.771) 90 at 11 and quoted Kalgo JSC
“…. Cause of death can be proved by direct or circumstantial evidence. It can also be inferred were the person injured or attacked died immediately. But in the instant appeal, there is no evidence of medical or otherwise as to what type of injury was suffered by the deceased as a result of the attack on him, or that the act of the Appellant was the cause of his death. The direct evidence required to prove cause of death must be such as would connect the death of the deceased person with the act of the accused. This may include the evidence of the medical officer who examined or performed post mortem examination on the deceased and certified that the injuries inflected on the deceased by the Accused are those that caused the death, particularly, if the deceased did not die in the course of the act of his assailant.”
Counsel urged us to hold that medical report was desirable in this circumstance as Appellants had denied attacking the deceased; that evidence of the so called witnesses could not be relied upon; there was no evidence to show injury sustained and its gravity/depth, and it could not be said with certainty whether the deceased died at the scene or at the hospital.
He urged us to resolve it for the Appellants.
On Issue 5, Appellants contended that, without prejudice to our findings as to whether Appellants’ acts (if any) could be linked to the death of the deceased, and whether they could be said to have known that death would result, that the sentence of death by hanging, placed on them by the lower Court was too harsh and not commensurate with the alleged acts.
He argued that there was conflict as to the weapon used in beating the deceased; that while Pw2 said sticks were used, he later said it was a hoe that was used in hitting her; that Dw3 (3rd Appellant) rather said the deceased was the one who wanted to hit them with the hoe; that regrettably no post mortem report was tendered to resolve all that – the type of object used which would have inferred the intention of the attackers; that in the circumstances, if the trial court could not acquit the Appellants, it ought to have sentenced them to a milder punishment, prescribed in Section 224-226 of the Jigawa State Penal Code, under which Appellants were tried; that by Section 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”
By Section 225:
“Whoever causes the death of any person by doing any act not amounting to culpable homicide, but done with the intention of causing hurt or grievous hurt, shall be punished with imprisonment for a term of which may extend to fourteen years or fine or with both.”
And by Section 226;
“Whoever causes the death of any person by doing any act not amounting to culpable homicide, which constitutes an offence punishable with imprisonment for one year or any greater punishment or by any act done in committing such an offence, shall be punished with imprisonment for a term which may extend to ten years or with fine or with both.”
Counsel urged us to intervene and give a milder sentence to the Appellant, pursuant to Sections. 224 – 226 of the State Penal Code, if the conviction and sentence for culpable homicide cannot be upturned,
He urged us to allow the Appeal.
In his argument the Respondent’s Counsel, SABO SULAMAN KIYAWA Esq. (CSC), (who settled the Brief) said that the offence of culpable Homicide, under Section 221(b) of the Penal Code is punishable with death; that the relevant paragraph says:
“Except in the circumstances mentioned in Section 222, culpable homicide shall be punished with death:
(a) If the…
(b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequences of the act or of any bodily injury which act was intended to cause.”
He submitted that to succeed in a charge of culpable homicide, punishable with death, the prosecution must prove beyond reasonable doubt the essential ingredients of the offence, namely:
(1) That the deceased had died.
(2) That the death resulted from the act of the accused.
(3) That the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
He relied on the case of OGBA v. STATE (1992) 2 NWLR (Pt.222) 164 AT 198; AKINFE V. STATE (1988) 3 NWLR (pt. 85) 729; ONAH v. STATE (1985) 3 NWLR (pt. 12) 236 AIGUOREGHIAN V. STATE (2004) 3 NWLR (pt.860) 367 AT 422 – 423 and AKPA v. STATE (2008) 14 NWLR (Pt. 1106) 72 AT 90.
Counsel submitted that the said ingredients have been proved in this case and he reproduced the pieces of evidence of the Pw1, Pw2, Pw3, Pw4 and Pw5, which he claimed established each of the said ingredients, He relied particularly on the evidence of Pw2 and Pw4, who were eye witnesses of the killing, and how it occurred, as well as what each of the Appellants did to the deceased, to cause her death. See paragraphs 5.07 to 5.10 (pages 8 and 9) of the Brief of the Respondent.
Counsel submitted that the evidence by the prosecution was unshaken and uncontradicted by the Appellants and so the trial Court had a duty to act on it. He relied on the case of OFORIETTE V. THE STATE (2000) 12 NWLR (pt.415) 436.
On the Appellants’ allegations that the evidence of Pw2 and Pw4 were full of contradictions and inconsistencies, Respondent’s Counsel submitted that there was neither contradiction nor discrepancy in the evidence of the prosecution, that what Appellants’ Counsel referred to as contradictions in Appellants’ brief were actually minors discrepancies. For instance, Counsel said that the Appellants argued that:
(i) Pw4 did not mention that he saw Pw2 at the scene.
(ii) Pw4 did not testify about the fact that the deceased and her husband were conveyed to the General Hospital, as done by the Pw2.
(iii) Pw4 (sic) said he found the deceased and her husband dead covered with ‘Zana’ mat.
(iv) The prosecution did not call the neighbor of the deceased mentioned by Pw4.
Counsel submitted to the effect that such were only minor differences in reporting (if at all), which did not affect the material facts in their testimonies; that it was not true that PW4 did not see the PW2, as he had stated that he met Pw2 (page 17 of the Records) and even described the clothes worn by the Pw4 (page 18 of the records). On the point that witness reported of seeing the husband and wife dead, Counsel said that that was explained under Reexamination, when the witness explained that the husband of the deceased was not breathing when they were conveyed to the hospital, but he later regained consciousness. (Page 16 of the Record).
Counsel further submitted that even if such minor discrepancies were to be taken as contradictions, such would be minor discrepancies and not material contradictions to affect the evidence. He relied on the case of AKPA V. THE STATE (Supra) at 93 – 94, where Tobi JSC said:
“A contradiction can only help a murder accused if it is material and affects the live issue or issues in the matter. A contradiction can only help murder accused if it relates to a fact which must be determined before the Court can arrive at a proper verdict. For contradiction in the evidence of prosecution witnesses to affect conviction it must raise doubt as to the guilt of the accused.”
Counsel also relied on the case of Dagayya V. The State (2006) 7 NWLR (Pt. 980) 637 at 664; OGUNBAYO v. THE STATE (2007) 8 NWLR (Pt. 1035) 157 at 184, on contradiction, that can be considered material or immaterial in a case.
He added that human faculty may miss details, while testifying due to lapse of time and error in narrating in order of sequence. He also relied on OCHEMAJE v. THE STATE (2008) 15 NWLR (Part 1109) 57 at 88, and MAIYAKI v. THE STATE (2008) 15 NWLR (Pt. 1109) 173 at 206.
On the point that the prosecution did not call a particular witness or tender medical report, Respondent submitted that it is not the law that the prosecution must call a particular witness to succeed; that even one witnesses of truth can found a conviction, except in a case were corroboration of the witness is required. He relied on AKPA V. THE STATE (Supra) at 95; He added that failure to call a particular witness does not amount to withholding evidence under Section 149 (d) of the Evidence Act, as there is a difference between evidence and witnesses. He relied on the case of BABUGA V. THE STATE (1996) 7 NWLR (Pt. 460) 279 at 291; OGUONZEE v. THE STATE (1988) 6 NWLR (Pt. 551) 521 at 553.
Counsel further argued that medical evidence/report is not always mandatory to establish the case of the prosecution, though it may be desirable. He relied on the case of ONYIA V. THE STATE (2006) 11 NWLR (Pt.991) 267 at 292; MACHAEL v. THE STATE (2008) 13 NWLR (Pt. 1104) 361 at 977, where Musdapher JSC (as he then was) said;
“It is trite that a basic and essential element of offence of culpable homicide, required to be proved that the cause of death must be linked to the act or omission of the accused. See DARE KADA V. THE STATE (1991) 8 NWLR (Pt.208) 134; NWOLEDI V. COP. (1997) 3 SC 35. Where the deceased died on the spot soon after an injury was inflicted by an accused person, the accused person will be guilty of causing the death. See ADAMU V. KANO NA (1956) SCNLR 65; BUKARI V. THE STATE (1965) NMLR 163.”
Counsel further submitted that in this case there was evidence that the Accused persons (Appellants) admitted the offence before the Village head, who also testified as Pw3 and affirmed the same. See the evidence of Pw2 and Pw3. He added that a court can convict on the confessional statement of an accused person, even where the same was orally made. He relied on the case of ISMAIL V. THE STATE (2008) 15 NWLR (Pt. 1111) at 621.
On the issue of intention, whether the Accused intended to cause death or had knowledge that death or grievous bodily harm was the probable consequence his act, Counsel for the Respondent submitted that the Respondent had discharged the duty, and he relied on the evidence of Pw2, Pw3, Pw4 and Pw5.
Counsel argued that it is difficult to prove intention by express means. Thus, the Courts normally resort to implied means to establish this crucial ingredient of offence, taking into consideration the weapons used and the place the injury was inflicted; that in this case once the prosecution established common intention of the Appellant, all of them became bound by the act or omission of each of them which committed the offence.
Counsel relied on Section 79 of the Penal Code to say that since the Appellants were charged together for culpable Homicide, under Section 221 (b) of the Penal Code that the act or omission of each of them was binding on all of them; that the section states:
“When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him done” See Section 79 of the Penal code, and MICHAEL V. THE STATE (supra) at 378 – 379.
Counsel traced the conflict between the Appellants and the deceased which culminated in the act that led to the death of the deceased to land dispute; saying that that formed a basis for considering the intention of the Appellants, that they, being men, descending on a woman at once, beating her with sticks and hoe, could infer their intention to cause death or grievous bodily harm to the victim. Also Counsel said the weapon used in the attack, sticks and hoe, and the part of the body, hit (body and head) spoke much about Appellants’ intention. He relied on the case of STATE V. USMAN (2005) 1 NWLR (Pt. 906) 80 at 133, LAMBA KUMBI v. BAUCHI NA (1963) NWLR 49 at 50; MICHAEL v. THE STATE (Supra) AT 377:
“Whether death is a likely or probable consequence of a person’s act is a question of degree. If a weapon is used the question will generally resolve itself by a consideration of the weapon used, the part of the body where it was struck and the amount of force used… A thin stick is not as dangerous as a sword, knife or other lethal weapon; a blow struck on a limb is not as dangerous as a blow struck on the head; a hard below is more dangerous than a light one. All these are matters which a trial court must consider, where the accused person’s ‘knowledge’ of the consequences of his act is relevant.”
Counsel relied on the evidence of the eye witnesses (Pw2 and Pw4) who stated the weapon used (stick and hoe (magirbi)), and the part of the body hit (head and other parts of the body); he said that Pw2, under cross examination, gave detail on what each Appellants did, during the attack:-
“Haru (2nd Appellant) beat the deceased on the shoulder and on the head… Shabe (3rd Appellant) went with a hoe (magirbi) and cut her on the head… Sambo (1st Appellant) beat the deceased on the head with a stick…”
(page 14 of the Record);
Counsel said further that the Pw3 (Village head) said, under cross exam:
“There was a cut on her head, there were many on the shoulders and her back…”
He also referred to evidence of Pw5 (IPO), who said; “I saw blood on the body of the deceased. I saw injury on her head.”
Counsel said all these pieces of evidence were neither shaken nor contradicted and must be accepted in proof of the issue in contest. He relied on the case of AHABNU V. OMOKORO (2003) 8 NWLR (Pt.821) 190 at 206 -207.
In addition to this circumstantial evidence to prove the intentions of the Appellants, Counsel said there was evidence from Pw2, Pw4, that Appellants had a meeting, where they plotted to kill the woman that Pw3 (sic) said.
Before I reach the farm I saw all the accused … going towards the place where the deceased woman wanted to erect a hut. I then heard them saying kill her, kill her, meaning the deceased woman.”
Counsel said that the evidence of the Appellants, at the trial, did not deny the offence that Dw1 (1st Appellant) did not raise any defence; 2nd Appellant (Dw2) pleaded alibi, but under cross examination admitted being the one who started the fight, but that he did nothing to her (deceased); Dw3 (3rd Appellant) was more fair and credible when he said all of them (Appellants) were at the scene; that there was a fight between them and the deceased, and that they were trying to defend themselves when attacked by the deceased and her husband!
Counsel submitted that the findings of the trial court on the issue cannot be substituted; that it is settled law that where a trial court unquestionably evaluates the evidence and appraises the facts of a case, it is not the business of Appellate court to substitute its own views for that of the trial court. He relied on the case of EZUKWU V. UKACHUKWU (2004) 17 NWLR (pt. 902) 227.
Thus, Counsel urged us to refuse the plea by the Appellants’ Counsel for this Court to substitute the sentence with a lesser punishment, saying that the same cannot be entertained/granted; that if there is evidence to support a particular conclusion of a trial Court, an appellate Court which could have come to a different conclusion should restrain itself and respect the conclusion of the trial court that saw and heard the witnesses; that the appellate Court can only interfere with findings and conclusion of a trial Court, if the same were perverse, unsupported by evidence adduced at the trial, and occasioned a miscarriage of justice (SOLOLA V. THE STATE (2005) 2 NWLR (Pt. 957) 460 at 488).
Counsel also relied on NNAMMAH v. STATE (2005) 9 NWLR (Pt. 929) 147 at 165, to say that the law is trite that where a mandatory sentence of death is prescribed by law for an offence, the court cannot impose a lesser sentence.
He urged us to resolve the issues against the Appellant and dismiss the Appeal.
In his Reply Brief on points of law, Counsel for the Appellants observed that the Respondent’s Counsel had variously claimed the evidence of PW2, PW3 and PW4 as those of eye witnesses; he argued that the said PW2, PW3 and PW4 never said they were at the scene of crime; that it is only a witness who actually witnessed (i.e. was at the very scene, at the material time) that could be regarded as an eye witness, in law. He submitted that address of Counsel cannot take the place of evidence, and so Respondent’s address to that extent should be disregarded.
RESOLUTION OF ISSUES
I shall adopt the issue as distilled by the Respondent in considering this appeal, as the same appears to have adopted and beautifully summarized the five issues distilled by the Appellants, and I think, the five issues can be considered, as proposed by the Respondent, together. Appellants’ Counsel had argued issue 1 separately, issues 2 and 3 together, and the other two issues separately.
A close look at the issues 1 to 4, shows that they are all complaining against Appellants’ conviction, in the light of the evidence adduced, questioning whether a pre – conceived idea to kill the deceased was established, and whether it could be said that they conspired and actually killed the deceased; whether it was proved beyond reasonable doubt that their act actually caused the death, and that they knew that death would be the natural consequence of their said acts (assuming they attacked the deceased). The last issue complains against the death sentence, by hanging, questioning whether it was not too harsh, and whether a lesser punishment could not be substituted. The main question, therefore, is:
Was the trial judge right, from the totality of the evidence adduced, to convict the Appellants for offence of culpable Homicide punishable with death, and sentencing them, accordingly, to death?
Appellants’ complaints as to whether they had a pre-conceived idea or intention to kill and/or conspired to kill or actually killed Safiya Nomau (the deceased) were resolved by the trial court in the positive, when it held:
“In my view, in this case, the accused persons had the intention to cause death or to cause such injury that would result in death. It is hardly incredible that blows struck by (3) able – bodied men of the stature of the accused persons in this case, with sticks and hoe on a woman (the deceased) could not cause her death or cause bodily injuries…”
(Page 44 of the Records)
That finding by the trial court was rooted in evidence adduced by the prosecution, especially of PW2 and PW4, who said they witnessed the attack of the deceased and her husband by the Appellants with stick and hoe (magirbi).
The PW2 and PW4 had told the court as follows:
PW2: “On Friday night the deceased that is when she was alive) reported to her ward head that since she was not given the land she would go to her father’s land and erect a hut, she also notified the Village head of her intention. The Galadima family members also planned that if they see the deceased in the land they would kill her…” (Underlining mine) – page 13 of the Records
PW4: “Before I reached the farm I saw all the accused… going towards the place where the deceased woman wanted to erect a hut, I then heard them saying kill her, kill her, meaning the deceased woman. I retreated back – wards and waited when they started beating her I hide myself…” (Page 17 of the Records)
That clearly shows evidence of pre-conceived idea and plan to visit the deceased with evil (death), following the disagreement or dispute over a piece of land, if she dared to go to the land. That evidence of prior intention to kill the deceased, and their acting in concert to achieve their objective, when they attacked her, was not punctured or refuted by the Appellants, either under cross examination or in their defence. If anything, the 3rd Appellant, testifying as DW3 on page 28 of Records, confirmed the attack at the farm, saying that it was the deceased who actually used the hoe trying to beat the 1st Accused, twice, but he dodged and pushed her away and she fell down; that the deceased’s husband then rushed to her rescue with two knives, one in his hand and the other tied to his waist; that he (deceased husband) started cutting his (DW3) leg, but to no avail. His brother got hold of the deceased’s husband and seized the knife away!
Appellants have not faulted the findings of the trial court on those piece of evidence, which established pre-conceived idea (intention) to commit the offence, and their acting in concert to realise it. After all, where there is an agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve that objective, evidence of conspiracy is established. See the case of POSU V. STATE (2011) 3 NWLR (Pt. 1234 393; ADEJOBI v. STATE (2011) 12 NWLR (Pt. 1261) 347 at 378 – 379, where RHODES – VIVOUR JSC said:
The offence of conspiracy is complete when two or more persons agree to do an unlawful act or to do a lawful act by unlawful means. Concluded agreements can be inferred by what each person does or does not do in furtherance of the offence of conspiracy. It is immaterial that the persons had not met each other. See OKOSUN & ORS V. A – G. BENDEL STATE (1995) VOL. 16 N.S.C.C. (Pt. 11) PG. 1327, (1985) 3 NWLR (Pt. 12) 283; ONOCHIE & ORS V. THE REPUBLIC (1966) VOL. 4 N.S.C.C. PG, 73; (1966) 1 SCNLR 204; LIGALI & ANOR V. THE QUEEN (1959) VOL. 1 N.S.C.C. PG.4, (1959) SCNLR 14.”
Appellants had queried whether it was proved beyond reasonable doubt that it was their act that actually caused the death of the deceased, especially as the sticks used in beating the deceased and the hoe used on her head, were not tendered and as there was no medical report to explain what, infact, killed the deceased. They also quarreled with the reliance of the trial court on the evidence of PW2 and PW4 as eye witnesses, alleging that their evidence were inconsistent and contradictory and so discredited and tainted.
The Respondents Counsel had submitted that the evidence of PW2 and PW4 who witnessed how the deceased was killed, were consistent, unchallenged and credible; that minor discrepancies traceable to disharmony in detail, due to human ability/disability in narration of events, or recollection cannot be taken as material contradictions. He relied on AKPA V. THE STATE (SUPRA) and other cases earlier reproduced in this judgment. The Respondent had also submitted that, where there is eye witness of murder, that the killer used lethal weapon in committing the offence and that the deceased died on the spot or soon after the attack, production of the implement used and/or medical evidence to establish the cause of death will not be mandatory, though it may be desirable. ONYIA V. STATE (2006) 11 NWLR (Pt. 991) 267 at 292; MICHEAL v. STATE (2008) 13 NWLR (Pt. 1104) 361 at 377.
I agree, completely, with the learned Counsel for the Respondent, that where death occurs on the spot, upon an attack on a victim of an unlawful assault by assailant(s), who used lethal weapon(s) on the delicate or fatal part of the body of the assailed, an eye witness account of the attack would readily and conclusively pin the act of the assailants to the cause of death of the deceased, and so production of the lethal weapon or medical evidence of the cause of death, though desirable, would be dispensable, in the circumstance. See the case of ONYIA V. STATE (2006) 11 NWLR (Pt. 991) 267 at 292 (held 11 and 12), where my Lord, IBIYEYE JCA (as she then was) said:
“11. In murder cases, a court can dispense with medical report or is not bound by medical evidence in proof of the cause of death of a deceased. It is so because even with or without medical report, a trial court can still infer the cause of death provided there is clear and sufficient evidence that death of the deceased was the direct result of the unlawful act of the accused person to the exclusion of all other reasonable possible causes. In other words, medical evidence is not a sine qua non in all cases of murder. Where the victim dies and the evidence leaves no doubt as to the manner of cause of death, medical evidence may be dispensed with. Thus, where a man was attacked with lethal weapon and died on the spot, it is hardly necessary to prove that cause of death. It can properly be inferred that the wound inflicted on the deceased caused his death.
In the instant case, it was established that the act of the appellant who hit the deceased with a dagger on his left breast led to the death of the deceased. The irresistible inference was that the act of the appellant caused the death of the deceased. Medical evidence would only support the inference; IBAKURI V. STATE (1965) NWLR 163; BWASHI V. STATE (1972) 6 SC 93; ILORI V. STATE (1980) 8 – 11 SC 81; UYO V. A.G., BENDEL STATE (1986) 1 NWLR (Pt. 17) 418; EHOT V. STATE (1993) 4 NWLR (Pt. 290) 644; EFFIONG V. STATE (1998) 8 NWLR (Pt. 562) 362; BEN V. STATE (2005) 11 NWLR (Pt. 936) 335; IGAGO V. STATE (1999) 14 NWLR (Pt. 637) 1 referred to (Pp 291 – 292, paras. H – D; 296, PARAS. C-G)
12. Where in a murder case eye witnesses’ accounts bear out an accused person as the killer of the deceased with a lethal weapon and where the deceased died on the spot, the offence has patently been proved beyond reasonable doubt and in such a case medical evidence and even the weapon used to perpetrate the heinous act cease to be practical legal necessity or sine qua non to establish the cause of death. (ULUEBEKA V. STATE (2000) 7 NWLR (Pt. 665) 404; EFFIONG V. STATE (1998) 8 NWLR (Pt. 562) 362; ONWUMERE V. STATE (1991) 4 NWLR (Pt. 186) 428 REFERRED TO.) (P, 292, Paras, E – H)”
In the case of MICHEAL V. THE STATE (2008) 13 NWLR (Pt. 1104) 361 at 377, my Lord MUSDAPHER JSC (as he then was).
Held:
“It is also trite that a basic and essential element of the offence of culpable homicide required to be proved that the cause of death must be linked to the act or omission of the accused. See DARA KADA V. THE STATE (1991) 8 NWLR (Pt. 208) 134; NWAKEDI V. C.O.P. (1977) 3 SC 35. Where the deceased died on the spot soon after an injury was inflicted by the accused person, the accused person will be guilty of causing the death. See ADAMU V. KANO NA (1956) SCNLR 65; BAKURI v. THE STATE (1965) NMLR 163.”
There is strong evidence from 2 persons who witnessed when the deceased was killed and how, and the weapons used – sticks and a hoe. The PW2, under cross-examination, even gave detail of how the assailants hit the deceased, and with what, when he said:
“Haru (2nd Appellant) beat the deceased on the shoulder and on the head… Then shabe (3rd Appellant) went with a hoe (Magirbi) and cut her on the head…Sambo (1st Appellant) beat the deceased on the head with a stick.” (page 14 of the Record)
Evidence of all the PWs shows that the deceased died on the spot after the attack, while her husband was injured and beaten to unconsciousness.
The PW3 (Village head), who was called to the scene said:
“I found the deceased … dead covered with zana mat. There were cut on both husband and wife’s bodies. There was a cut on her head, there were many on the shoulders and her back.”
PW2, who witnessed the attack, said:
“On reaching the farm I also saw Haru then I saw Sambo and Shade, Hassan. They killed the deceased with sticks and hoe; they cut her on the head I then ran to the Village head of Magarya and inform him. Haru beat the deceased first two times with a stick Sambo also used stick in the beating. I saw Hassan come with a spear but I was a frightened I therefore ran away to report…”
PW4 said:
“Before I reached the farm I saw all the accused… going toward the place where the deceased woman wanted to erect a hut. I then heard them saying kill her, kill her, meaning the deceased woman, I retreat (sic) backwards and waited when they started beating her I hide (sic) myself I heard someone, her neighbor saying shame, shame to yourselves, all of you (the accused) beating a woman or killing her… they went away and I and some people carried the deceased under the tree … she was covered with zana mat.”
There is unity in the evidence of the prosecution witnesses on the material points, of, what the accused did to the woman to cause her death.
I cannot spot any material contradiction in the evidence, as the complaints which Appellants raised, as pointed out by the Respondent’s Counsel, are minor discrepancies as to detail in narration by the witnesses. In the case of OCHEMAJE V. THE STATE (2008) 15 NWLR (Pt. 1109) 57, the Supreme Court, per NIKI TOBI, JSC said:
“That is why the law says that contradictions which are not material or substantial will go to no issue. The main interest of the court is that witnesses are in union or unison as to the happening of the event but give different versions in respect of the peripheral surrounding the event.”
For instance, Appellants’ claim that PW2 did not say he saw he PW4 at the scene, or that PW2 said the deceased and the husband were conveyed to the General Hospital, whereas PW4 claimed himself and some people carried the deceased under the tree and covered her with a mat, are all immaterial and cannot be said to be contradictions on the material point, or at all. They were rather complementary. Also the evidence of PW3, under cross-examination, that he found the deceased and her husband dead covered with zana mat, was explained, during re – examination, when he said that the husband was not breathing when they conveyed them to the hospital, but he (husband) later regained consciousness. That could not assail the credibility of the prosecution evidence on the material point.
I think, in this case, the material evidence was that crucial to the establishing the offence of culpable homicide, that is, the acts of the Appellants to the said Safiya Nomau, which caused her death and their intention to kill her or cause her grievous bodily harm. The evidence of the prosecution on this was solid and unshaken, especially as there was evidence that the death of the woman occurred on the spot, at the scene of crime, following the attack on her by the Appellants.
It has been stated several times that the requirement of the law, that a criminal charge has to be proved beyond reasonable doubt,”does not mean proof beyond any shadow of doubt. Once the proof drowns the presumption of innocence of the accused, the court is entitled to convict him, although there could exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless, and pins him down as owner of the mens rea or the actus reus or both, the prosecution has discharged the burden placed on it. See the diction of TOBI JSC in the case of GOLDER DIBIE V. STATE 2007) 9 NWLR (Pt. 1038) 30 at 56 – 57. See also MICHEAL V. STATE supra) at 384.
Appellants had argued that even where they were held to be the ones who unleashed the attack on the deceased on the day in question, that they could not be said to have known that death would be the probable consequence of their act; that the proof of this vital ingredient rests on the prosecution, squarely. Of course the Respondent took up the challenge, by referring us to the evidence of the prosecution relating to the attack, the intention of the Appellants, the weapons used, and the parts of the body on which the injuries were inflicted on the deceased, to prove their knowledge.
In the case MICHEAL V. STATE (supra) holding 3, the Supreme Court held:
“In a charge of culpable homicide, the nature of weapon used, its weight and size are in the circumstances of the case essential in determining whether the conviction should be one of culpable homicide punishable with death or not.”
It was further held in that case on page 377 as follows:
“Whether death is a likely or probable consequence of a person’s act is a question of degree. If a weapon is used the question will generally resolve itself by a consideration of the weapon used, the part of the body where it was struck and the amount of force used… A thin stick is not as dangerous as a sword, knife or other lethal weapon; a blow struck on a limb is not as dangerous as a blow struck on the head; a hard blow is more dangerous than a light one. All these are matters which a trial court must consider, where the accused person’s ‘knowledge’ of the consequences of his act is relevant.”
Thus, Appellants should have known or were expected to know that 3 of them, men with stature, as observed by the trial court, descending on a poor woman, and in a state of anger, with sticks and a hoe, and dealing blows and cuts on her body and head, as shown in evidence, was likely to result in the death of their victim or in grievous bodily harm.
By section 221 (b) of the Penal Code, whereof Appellants were charged, knowledge is presumed or inferred:
“If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to course.”
The cause of the disputes that resulted in the conflict that led to the death of the deceased was struggle over land, It is sad that land has always been a cause of death even as it is also a source of life. Often times, aggrieved combatants over land, at the time of their madness and fury, fail to realise that the land, which they fight and kill to claim, is just a gift by God to humanity to walk and live on, that nobody has absolute right over it, and that the land will remain to mock them (their foolishness of fighting over it), as each combatant will be entitled to only a little space (about 6 feet and 3 feet), free, to rest his remains, at the end, whether he struggles for it or not! Land always remains to swallow the greedy. Such is the futility of human struggles, and the sooner one realizes it, the saner his conduct and attitude towards land and, in fact, every material possession!
Was the sentence harsh and capable of being substituted with a lesser punishment? Appellant had prayed for substitution of the death sentence by hanging with a lesser offence, if we cannot overturn the conviction and sentence of the Appellants. He suggested sections 224 to 226 of the Jigawa State Penal Code for our consideration, for the purpose of the lesser punishment.
It is difficult to reason through this submission by learned Counsel for the Appellants, considering the fact that Appellants were tried for culpable homicide, under section 221 (b) of Jigawa State Penal Code, read along with section 79 of the same law. They were not tried under any of the sections Appellants want us to consider for the reduction of the sentence. Neither did the trial court, at the end of the trial, hold that the evidence proved a lesser offence as per section 218 of the Criminal procedure Code, which allows, the courts, including this court to convict an accused person on a lesser offence or an offence he was neither charged nor pleaded, if the evidence adduced at the trial so permits. See the case of EZEJA V. STATE (2008) 5 SC (Pt. 11) 74 at 91.
As rightly submitted by the Respondent’s Counsel, the trial was based on section 221 (b) of the Penal Code, the findings of the court were based on the evidences in furtherance of that trial and where there is no prove that the findings were perverse and/or not supported by the evidence (thus, resulting in a miscarriage of justice), there is no way the appellate Court can substitute or abandon the findings of the trial court, with another, arbitrarily, or substitute the sentence, which is the terminal of the charge and evidence led to prove it. See the case of SOLOLA V. THE STATE (2005) 2 NWLR (Pt. 937) 460 at 488; ADENIYI v. FRN (2012) ALL FWLR (Pt, 646) 575 at 589 where this court held:
“By the provisions of section 179 (1) and (2) of Criminal Procedure Act, the court can convict an accused person on a lesser offence disclosed by evidence at the end of trial, if the main charge fails. But that can only apply where the offence proved is aft or element of the offence charged, or related to it. The offences should be related, having the same or common means of proof, or similar/related ingredients for establishing commission, but the lesser offence, being so called, because the severity of it is less than the main offence, and the punishment thereof is, accordingly, reduced, reduced…”
I therefore resolve the issues against the Appellants and, on the whole, hold that the Appeal has no merit and should be dismissed. It is accordingly dismissed as I uphold the decision of the learned trial court convicting the Appellants and sentencing them to death for Culpable Homicide under section 221 (b) of the Jigawa State, Penal Code, read jointly with section 79 of the same law.
DALHATU ADAMU, J.C.A: I have been privileged to go through the leading judgment by my learned brother Mbaba, JCA. I fully agree with his reasoning and conclusion that the appeal should be dismissed.
HABEEB A. O. ABIRU, J.C.A: I have had the privilege of reading in draft before now the lead judgment just delivered by my learned brother, Mbaba, JCA. His Lordship has, in his usual manner, painstakingly considered and resolved the issues in contention in this appeal. I agree with the reasoning and conclusions. I wish to make some comments.
This is an appeal against the judgment of Honorable Justice A. S. Tahir of the Jigawa State High Court in Charge No IDU/21C/96 delivered on the 10th of October, 2001. The Appellants were charged with two counts having a common intention to commit culpable homicide punishable with death and culpable homicide punishable with death. They were alleged to have conspired to kill and to have killed one Safiya Nomau, a female, by attacking and hitting her with sticks and a hoe on the head and other parts of her body. The matter went to trial and the Prosecution called five witnesses while the three Appellants testified in their own defence. At the conclusion of trial, the Appellants were found guilty on both counts and sentenced to death by hanging.
The singular issue for determination in this matter, as identified in the lead judgment, is whether the Prosecution led credible, cogent and sufficient evidence before the trial Court to sustain the charge against the Appellants.
It is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. By virtue of section 138 (1) of the Evidence Act, where the commission of crime by a party is in issue in any Proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal. It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. This is because the law will fail to protect the community if it admits fanciful possibilities to deflect the course of justice. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt Uzoka V. Federal Republic of Nigeria (2010) 2 NWLR (Pt 1177) 118, Jua V. State (2010) 4 NWLR (Pt 1184) 217, Ike V. State (2010) 5 NWLR (Pt 1186) 41, Gabriel V. State (2010) 6 NWLR (pt 1190) 280, Garba V. State (2011) 14 NWLR (pt 1266) 98 and Sabi V. State (2011) 14 NWLR (Pt 1268) 421.
The first count against the Appellant, common intention to commit culpable homicide punishable with death, is akin to a charge of conspiracy.
The courts have stated that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means and that the actual agreement alone constitutes the offence of criminal conspiracy and it is unnecessary to prove that the act has in fact been committed – Omotola V. State (2009) 7 NWLR (Pt 1139) 148 and Yakubu V. Federal Republic of Nigeria (2009) 14 NWLR (Pt 1160) 151. The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other, and concluded agreements can be inferred by what each person does or does nor do in furtherance of the offence – Shurumo V. State (2010) 19 NWLR (Pt 1226) 73. Conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. It is based on common intent and purpose and once there is such evidence to commit the substantive offence, it does not matter what any of the conspirators did – Sule V. State (2009) 17 NWLR (Pt 1169) 33.
Counsel to the Appellants argued profusely in his brief of arguments that the Prosecution did not lead credible evidence to show that the Appellants had a pre-conceived plan to kill the deceased. Counsel obviously overlooked the unchallenged testimony of the fourth prosecution witness that, on the day in question, he saw the Appellants going towards the place the deceased was making efforts to erect a hut on the farm in dispute between the parties and he heard the Appellants saying “kill her, kill her, meaning the deceased woman”. The learned trial Judge accepted this testimony of the fourth prosecution witness and Counsel to the Appellants has not challenged or faulted the lower Court’s acceptance of the testimony on this appeal. This piece of evidence clearly showed that Appellants went to the farm that day with a common intention to commit culpable homicide.
With regards to the second count of culpable homicide punishable with death, which the same as a charge of murder, it has been held in a plethora of cases that the essential ingredients that the prosecution must prove in order to secure a conviction are (i) that the deceased died; (it) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence see, for example, Sule V. State (2009) 19 NWLR (Pt 1169) 33, Nkebisi V. State (2010) 5 NWLR (Pt 1188) 471, Mbang V. State (2010) 7 NWLR (Pt 1194) 431, Usman V. State (2011) 3 NWLR (Pt 1233) 1, Uluebeka V. State (2011) 4 NWLR (Pt 1237) 358. The Prosecution must meet the above ingredients through credible evidence. The three ingredients must co-exist and where one of them is either absent or tainted with any doubt, then the charge is said nor to be proved – Sabi V. State (2011) 14 NWLR (Pt 1268) 421.
It was not in contest at the trial that the said Safiya Nomau was dead and as such the first ingredient was agreed by the parties. On the second requirement of whether it was the act of the Appellants that caused the death, the law is that to establish this ingredient beyond reasonable doubt, the Prosecution must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellants – Udosen V. State (2007) 4 NWLR (pt 1023) 125, Oche V. State (2007) 5 NWLR (Pt 1027) 214 and Ekpoisong V. State (2009) 1 NWLR (Pt 1122) 354. Counsel to the Appellants made heavy weather of the fact that no autopsy report was tendered in evidence showing the cause of death and submitted that this was fatal to the case of the prosecution as there was nothing to show that it was the alleged attacks unleashed on the deceased by the Appellants that killed her.
It is settled law that in a murder charge, much as medical evidence is desirable to establish the cause of death, it is clearly not a sine qua non as cause of death may be established by sufficient satisfactory and conclusive evidence showing beyond reasonable doubt that the death of a deceased resulted from the particular act of a defendant. Thus, where death is instantaneous or nearly so, medical evidence ceases to be of any practical or legal necessity – Essien V. State (1984) 3 SC 14, Azu V. State (1993) 6 NWLR (Pt 299) 303, Akpa V. State (2008) 14 NWLR (pt. 1106) 72. In Ben V. State (2006) 16 NWLR (Pt 1006) 582, where the deceased was struck on the head with a stick and he fell down unconscious and never regained consciousness until he was pronounced dead some hours later in the hospital, the Supreme Court held that the trial Court rightly found that the cause of death was the lethal blow to the head without a need for medical evidence.
In Adekunle V. State (2006) 14 NWLR (Pt 1000) 717, where the deceased was shot by the defendant and was rushed to the hospital for treatment and died on the next day, the Supreme Court held that medical evidence was unnecessary and that the gun shot was the cause of death. In the instant case, there were unchallenged evidence in the testimonies of the second prosecution witness that the deceased was attacked and hit on the head with sticks and a hoe. There was also unchallenged evidence in the testimonies of the second, third and fourth prosecution witnesses that the deceased died immediately or shortly after the attack on her and that it was her corpse that was conveyed to the hospital and the body was released to them and she was buried. It is clear from the circumstances of the death that it was the attack that caused the death of the deceased. Medical evidence of the cause of death was unnecessary.
On showing a causal link between the cause of death and the acts of the Appellants, it is trite that Prosecution can prove this either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive – Emeka v. State (2001) 14 NWLR (pt. 734) 666, Nigerian Navy v. Lambert (2007) 18 NWLR (Pt 1066) 300, Jua v. State supra, Mbang v. State (2010) 7 NWLR (pt 1194) 431, Dele v. State (2011) 1 NWLR (pt. 1229) 508. In the instant case, the second prosecution witness gave a graphic eye witness account of the attack carried out on the deceased by the three Appellants with sticks and a hoe stating who did what to the deceased and with what instrument. The witness reaffirmed her testimony under cross-examination and gave additional details. The testimony was corroborated by the fourth prosecution witness and by the evidence of the third and fifth prosecution witnesses as to the nature of the injuries they found on the body of the deceased. The trial court accepted these testimonies. The Appellants have not faulted these testimonies on this appeal and they clearly establish the second ingredient of the offence. The third requirement is whether the Appellants caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. This is what is known as “specific intention” necessary for sustaining a murder charge. It is the law that a person intends the natural consequences of his action and if there was an intention to cause grievous bodily harm and death results, then he defendant must be held culpable for the offence of murder – Nwokearu v. State (2010) 15 NWLR (pt. 1215) 1. In order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused – Iden v. State (1994) 8 NWLR (pt 365) 719.
Thus, in Ejeka V. State (2003) 7 NWLR (pt 819) 408, where the appellant stabbed the deceased with a jack knife at a fragile part of the body such as the heart, the Supreme Court held that this clearly explained that the appellant’s intention was to cause grievous injury to the deceased. Similarly, in Nwokearu v. State supra, where the appellant stabbed the deceased in the stomach with a knife, the Court of Appeal held that this showed an intention by the appellant to cause grievous harm to the deceased. In the instant case, the unchallenged testimony was that the Appellants, three able bodied men, hit the deceased, a female, on the head and on her body with sticks and a hoe many times over leaving cuts on her head, shoulder and back. It is clear that the Appellants intended to cause the deceased grievous injury. The third ingredient was established by the Prosecution.
The Prosecution led credible and cogent evidence to establish the charge against the Appellants. It is for these reasons, and the more detailed reasons contained in the lead judgment, that I also dismiss this appeal and affirm the judgment of the lower Court. I abide the consequential orders in the lead judgment.
Appearances
OTUNBA SANYA OGUNKUADE ESQ. with him FATIMA OJO (Mrs.)For Appellant
AND
SULEH UMAR ESQ. (DCL) with him SABO SULAIMAN KIYAWA ESQ.
(CSC); HUSSAINI ABDULLAHI ESQ (ACSC) and M.A. LAMIN ESQ. (PSC)For Respondent
