UMARU SANI V. THE STATE (2013)

UMARU SANI V. THE STATE

(2013)LCN/5938(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 19th day of February, 2013

CA/K/231/C/2009

RATIO

EVIDENCE: BURDEN OF PROOF: BURDEN OF PROOF IN CRIMINAL MATTERS

”It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime of a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. 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. 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.” Per ABIRU, J.C.A.

EVIDENCE: CIRCUMSTANTIAL EVIDENCE: WHAT DOES IT ENTAIL

”In Obinna Osuoha v. State (2010) 16 NWLR (pt. 1219) 364 at 375 the Court held that: “Circumstantial evidence is proof where direct testimony of eye witness is not available, the Court is permitted to infer from the facts proved the evidence of others that may be logically inferred”. Similarly in Jua v. State (2010) 4 NWLR (pt. 1184) 217 at 222 the Court held that; “An accused person can be convicted of the offence of culpable homicide punishable with death if there exists cogent and compelling circumstantial evidence to the fact that the accused person killed the victim”.” Per ABOKI, J.C.A

EVIDENCE: CONFESSIONAL STATEMENT: CONFESSIONAL STATEMENT DOES NOT BECOME INADMISSIBLE BECAUSE A IT IS DENIED AS NOT BEEN MADE

”Now, it is settled law that a confession does not become inadmissible merely because a defendant denies having made it. The denial of a statement made by a defendant to the police is only an issue of fact to be decided in the Judgment and it is not an issue which affects admissibility of the statement – Akpa Vs State (2008) 14 NWLR (Pt 1106) 72, Sule Vs State (2009) 17 NWLR (Pt 1169) 33, Mbang v. State supra, Nwokearu V. State 2010) 15 NWLR (pt 1215) 1 and Dele V. State supra.” Per ABIRU, J.C.A

CRIMINAL LAW AND PROCEDURE: CULPABLE HOMICIDE: ESSENTIAL INGREDIENTS

”A charge of culpable homicide punishable with death is the same as a charge of murder and 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; (ii) 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 Vs. State (2011) 4 (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 not to be proved – Sabi V. State supra.” Per ABIRU, J.C.A.

CRIMINAL LAW AND PROCEDURE: PROVOCATION: ESSENTIAL INGREDIENTS

”In James Biruwa v. State (1985) 3 NWLR (pt. 11) 167, the Court held that: “Provocation in law consists mainly of 3 elements. (1). Provocative act. (2). The loss of self-control both actual and reasonable (3). Proportionality of retaliation”. Per ABOKI, J.C.A

JUSTICES

ABDU ABOKI 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

UMARU SANI Appellant(s)

AND

THE STATE Respondent(s)

ABDU ABOKI, J.C.A: (Delivering the Leading Judgment): This is an appeal against the decision of the Kaduna State High Court No. 4 delivered on 24th February, 2009 by Gideon Isa Kurada J.

The brief facts of the case are that the appellant on or about the 12th day of August, 2002 at Adebo Village in Birnin Gwari stabbed one Ibrahim Yusuf with sharp knife on his neck, who died instantly.
On the 5th day of May, 2005, the appellant was charged for the offence of culpable Homicide punishable with death.
At the trial, the prosecution (hereinafter called the respondent) called 4 witnesses and tendered 4 exhibits in its bid to establish its case against the appellant, on the other hand, the appellant testified for himself and tendered no exhibit.
At the conclusion of the trial, the appellant was found guilty and accordingly sentenced to death by hanging.
Aggrieved bythe said decision, the appellant appealed to this Court through a notice of appeal.
Briefs of argument were in accordance with the relevant rules of this Court duly filed and exchanged and at the hearing of this appeal, the parties duly adopted and relied on the arguments and submissions contained in their respective briefs of argument.
In the appellant’s brief of argument, the following issues for determination were raised:

“(i). WHETHER the learned trial judge was right to have convicted the appellant for the offence of culpable homicide punishable with death without the respondent having proved the elements of the offence. (GROUND TWO)

(ii). WHETHER the learned trial judge was right to have convicted the appellant without affording him the option of further cross-examining the Pw3 and Pw4 personally or through a counsel, (GROUND ONE)

(iii). WHETHER the learned trial judge was right to have convicted the appellant without properly considering the defences available to him (GROUNDS 3 AND 4)

(iv). WHETHER the decision of the trial Court is supportable and warranted, having regards to the totality of evidence before it. (GROUNDS 6 AND 7)”.

On the other hand, the respondent in its brief of argument formulated the following issues for determination to wit:
“(i) Whether the trial Court was right to have convicted the appellant for the offence of culpable homicide punishable with death.

(ii) Whether the circumstantial evidence adduced by the prosecutor can sustain the judgment of the trial Court”.

The issues formulated by the respective parties for the determination of this appeal are similar. I however prefer the 1st issue formulated by the learned counsel to the appellant and I adopt same for the consideration of this appeal. It reads as follows:

On the said issue, learned counsel to the appellant in his brief of argument submitted that the lower Court erred in law when it convicted the appellant for the offence of culpable homicide punishable with death, when the respondent had not successfully established all the ingredients of the said offence.
Learned counsel referred the Court to the cases of
Ochemeje v. The State (2008) SCNJ page 143,
Maiyaki v. State (2008) 15 NWLR (pt. 212),
Daniel v. The State (1991) 8 NWLR (pt. 443) 715,
Gira v. The State (1996) 4 NWLR (pt. 428) 1,
Obudu v. The State (1999) 6 NWLR (pt. 198) 433,
Ogba v. State (1992) NWLR (pt. 222) 164 and section 221 of the Penal Code.

He submitted that the decision of the lower Court was erroneous in view of the fact that no evidence was adduced which tends to establish the fact that the appellant intended causing the death of the deceased person. He argued that in the absence of such evidence, the lower Court ought not to have convicted the appellant.
Learned counsel to the appellant referred the Court to the cases of Gracie Akinfe v. The State (1988) 3 NWLR (pt. 85) 729 at 744 – 745.
Learned counsel maintained that the judgment of the lower Court was faulty because the respondent had not established its case against the appellant beyond reasonable doubt as required by the law.
He cited to the Court the cases of Mufutau Bakare v. The State (1987) NWLR (pt, 52) 579 at 587 – 588,
Ishaiki Manga v. The State (1993) 3 NWLR (pt. 279) 108 at 124 – 125 and the testimonies of Pw1 – Pw3.

Learned counsel contended that the failure of the lower Court to provide the appellant through his counsel with the opportunity to further cross-examine Pw2 and Pw3 before discharging the said witnesses amounted to an infraction of the appellant’s right to fair hearing.
He referred the Court to the provision of section 36(6)(b), (c), and (d) of the Constitution of the Federal Republic of Nigeria 1999 and the cases of Solomon Ogboh and anor v. The Federal Republic of Nigeria (2002) 4 SCNJ 393 at 403 and Umaru v. The State (2009) 3 SCNJ 33 at 38 line 1 – 15.
Learned counsel to the appellant insisted that the lower Court erred in law when it failed to accord the appellant the benefit of the defence of provocation, since the offence he was charged with was committed in the heat of passion.
Learned counsel cited the provision of section 221(1) of the Penal Code and the cases of Shande v. State (2005) All FWLR (pt. 279) page 1342 at 1354, page 1356, R v. Green (1955) 15 WACA 73,
Nweke v, The State (1979) NCAR 42 at 46 lines 5 -6.
He insisted that the lower Court ought to have applied a subjective test and accordingly avail the appellant the defence of provocation.
Learned counsel to the appellant referred the Court to the cases of

Nweku Unugu v. The State (supra),
Adamu Kumu v. State (1967) 1 All NLR 289,
Malam Zakari Ahmed v. The State (2006) All FWLR (pt. 339) page 801 at 818,
Sani Adisa v. The State (1991) NWLR (pt. 169) 490
Annabi v. State (2008) All FWLR (pt. 431) 895 at 911.

In conclusion, he urged the Court to resolve this issue in favour of the appellant.
On the other hand, learned counsel to the respondent in his brief of argument contended that the lower Court was not in error when it convicted the appellant for the offence of culpable homicide punishable with death, and that the respondent had proved all the ingredients of the said offence.
Learned counsel referred the Court to the cases of
Agbo v. State (2006) 6 QCCR page 48 at 87-88, Emoga v. State (1997) 1 NWLR (pt. 483) page 615 at 622,
State v. Danjuma (1997) 5 NWLR (pt. 506) at 529,
Miller v. Minister of Pension (1994) 2 All ELR page 372 at 373,
Kaza v. State (2008) 32 WRN 46, pages viii, xi and x of the record and the testimonies of Pw3, Pw4 and Dw1.
Learned counsel to the respondent maintained that there where ample circumstantial evidence which the lower Court relied on in convicting the appellant.
Learned counsel cited in support of his submission the cases of
Akpan v. The State (2001) 7 SCJN 567 at 582,
The State v. Ogunbunjo (2000) 1 SCJN 86 at 103,
Akinmoju v. The State (2000) 4 SCJN 179 at page 184,
Sule Ahmed (aka Eze) v. The State (2001) 1 SCJN page 9.
In conclusion, learned counsel to the respondent ured the Court to dismiss this appeal.
In Akpan v. State (2007) 2 NWLR (pt. 1019) 500 at 503-504, the Court of Appeal held that:
“By virtue of section 221 of the Penal Code, the ingredients of the offence of culpable homicide punishable with death are:
(a). that the death of a human being actually took place;
(b). that such death was caused by the accused;
(c). that the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.
All the ingredients must be proved or co-exist before a conviction could be secured. Failure to establish any of the ingredients would result in an acquittal”.

In the instant appeal, the respondent through the testimonies of Pw2-Pw3 as well as exhibits 2-4, clearly established the fact that the death of a human being had occurred.
On the next ingredient i.e. whether the accused person caused the death of the deceased, Pw4 cross-examination stated thus:
“I have forgotten the date of the incident. I did not welcome deceased when he came. The accused pushed me out of the room when he entered my room and saw me with the deceased. From that point I went to seek for help I did not see what happened but it was my brother Idris that told me what happened. It did not take me time to return to the scene when I went to seek for help. I can not estimate the time. I do not know the time when my brother Idris entered my room and met the accused and the deceased. I personally heard the deceased ask “are your going to kill me?” I was by the door steps of the room when I heard the deceased say so. My senior brother Idris was then holding the accused when the deceased was asking the question. I did not see the accused stab the deceased I only saw him with a knife”.
The only incrimination evidence which Pw4 gave against the appellant vis-a-vis the cause of death of the victim was that she heard the victims uttering the word “are your going to kill me” and that she saw the appellant holding a knife”. Pw3 also claimed to have seen the appellant holding a knife.
The question that must be asked at this juncture is whether there are circumstantial evidence pointing to the fact that the appellant committed the offence upon which he was convicted and sentenced to death.

In Obinna Osuoha v. State (2010) 16 NWLR (pt. 1219) 364 at 375 the Court held that:
“Circumstantial evidence is proof where direct testimony of eye witness is not available, the Court is permitted to infer from the facts proved the evidence of others that may be logically inferred”.
Similarly in Jua v. State (2010) 4 NWLR (pt. 1184) 217 at 222 the Court held that;

“An accused person can be convicted of the offence of culpable homicide punishable with death if there exists cogent and compelling circumstantial evidence to the fact that the accused person killed the victim”.

It is also pertinent to emphasize that the appellant had in the course of his examination admitted that he was at the scene of the crime i.e. the room where the deceased’s body was found, and that during a scuffle that ensued between him and the deceased, the deceased fell on a broken mirror. See page 41 of the record.
In Exhibits 2 and 3, the appellant clearly stated that he stabbed the deceased on his neck with a knife. Learned counsel to the appellant raised objection against admitting the said exhibits 2 and 3 in evidence based upon the premise that the said exhibits were not authored or signed by the appellant, but overruled by the lower Court. The objects had relegated the said exhibits into a “retracted confessional statement”. But notwithstanding the relegation of the said exhibits, a Court of law can still rely on them to convict an accused person if the following conditions have been fulfilled.
“(a). there is anything outside the confession to show that it is true?
(b). it is corroborated?
(c). the relevant statements made in it are of facts true as far as they can be tested?
(d). the accused person has the opportunity of committing the offence charged?
(e). the confession is possible?
(f). the confession is consistent with other fads which have been ascertained and have been proved?”
See Ogudo v. State (2011) 202 LRCN 11.
Similarly, in Gabriel v. State (2010) 6 NWLR (pt. 1190) 280 at 290, the Court held that:
“The fact that an accused person retracts his confessional statement does not mean that the Court cannot act on it and convict accordingly as the case may justify. However, if a confession is retracted, there should be some corroboration no matter how slightly. But a conviction will not be quashed merely because it is based entirely upon the evidence of a confession by an accused”.
In the instant appeal, there are snippets of circumstantial evidence which tend to corroborate and strengthen the content of exhibits 2 and 3 that it was the appellant that stabbed the deceased on the neck. For instance, the appellant admitted that he fought with the deceased at the scene where the victim’s body was found, Pw4 stated that she saw the appellant with a knife and she also heard the deceased pronouncing the words “are your a going to kill me” and exhibit 4 clearly showed that the corpse of the deceased had 2 deep stab wounds around the jugular of the neck.
On the last ingredient which the prosecution must establish in order to secure a conviction for the offence of culpable homicide punishable with death i.e. whether the accused intentionally caused the death of the deceased or that the accused knew that death would be the probable consequence of his act. In Audu v. State (2003) 7 NWLR (pt. 820) 516 at 525, the Court held that:
“A man is presumed to intend the natural consequences of his act. Accordingly, whereby an unlawful act, he causes another person grievous bodily harm leading to the death of that person and he would be guilty of murder irrespective of his intention”
In the instant appeal, the respondent before the lower Court had adduced evidence which clearly showed that the appellant stabbed the deceased with a knife on his neck. Specifically, exhibit 4 stated that the cause of the death of the deceased was as a result of:-
“Irreversible Hypovolalonie shock due to massive Hemorrhage as a result of damage to jugular vien”.

Thus by stabbing the deceased with a knife on a very sensitive and delicate part of the body like the neck, leaves no one in doubt that the appellant either intended causing the death of the deceased or that the appellant wanted to inflict a grievous bodily injury on the deceased that would ultimately lead to his death.
On the contention of the learned counsel to the appellant that the lower Court had failed to avail the appellant with the defence of provocation which might have operated in favour of the appellant, I discovered upon a perusal of the judgment of the lower Court, that the lower Court had properly examined whether the defences of self-defence and provocation operated in favour of the appellant and it accordingly held that none of the said defences could have availed the appellant. I do not see how the defence of provocation could have operated in favour of the appellant who stabbed an unarmed person with a knife on his neck. I am satisfied that the act of the appellant was disproportional. In James Biruwa v. State (1985) 3 NWLR (pt. 11) 167, the Court held that:
“Provocation in law consists mainly of 3 elements.
(1). Provocative act.
(2). The loss of self-control both actual and reasonable
(3). Proportionality of retaliation”.
It is very clear from the evidence placed before the lower Court that it was not in error when it failed to avail the appellant with the defence of provocation.
The learned counsel to the appellant had contended that the failure of the lower Court to accord the appellant the opportunity to recall Pw2 and Pw3 for the purpose of further cross-examining had occasion a breach of the appellant’s Fundamental Right. On the 7/12/07, sequel to an application that was made by the learned counsel to the appellant to recall Pw2 and Pw3 for the purpose of further cross-examination, the lower Court granted the said application and the case was adjourned to 28/1/08 for the purpose of further cross-examination of Pw2 and Pw3. On the said 28/1/08, Pw2 and Pw3 were not in Court and the case was further adjourned to 22/02/08 for further cross-examination of Pw2 and Pw3. The case was subsequently adjourned to 14/7/08, and later to 3/10/08 for further cross-examination of Pw2 and Pw3.
When the case ultimately came up on 3/10/08, learned counsel to the appellant was not in Court and the Court adjourned the case to 3/11/08 for defence.
On the said 3/11/08 when the case came up, learned counsel to the appellant opened his defence.
What the learned counsel to the appellant ought to have done if he was still desirous of further cross-examining Pw2 and Pw3 was to tender his apology and reasons as to why he was absent at the last adjourned and then consequently apply to the lower Court to recall Pw2 and Pw3 for the purpose of further cross-examining them.
Surprisingly on 3/11/08, the then learned counsel to the appellant failed to take the appropriate step but rather proceeded to open the appellant’s defence.
Being the architect of his own misfortune, the appellant cannot now bamboozle this Court with his untenable contention that his Fundamental Right had been infringed upon. The lower Court having provided both parties with the opportunity to present their case before it but which the then learned counsel to the appellant failed to utilized, the appellant cannot now contend before this Court that his Fundamental Right had been infringed upon.
In conclusion it is clear from the totality of the evidence before the lower court both circumstance and confessional that it was not in error when it convicted the appellant for the offence of culpable homicide punishable with death.
This issue is resolved in favour of the respondents. There is no merit in this appeal and it is hereby dismissed. The conviction and sentence imposed by the lower court in its decision delivered on 24th February, 2009 is hereby affirmed.

ITA G. MBABA, J.C.A: I agree completely with the lead judgment of my Lord ABOKI JCA, just delivered in this appeal.
The evidence were over whelming that Appellant caused the death of the Deceased, who was harmless at the time Appellant fought him and stabbed him on the neck with a knife in a room. His retracted confessional statement (Exhibits 2 and 3) had admitted the offence and this was corroborated by the evidence of Pw3 who saw the Appellant with the knife in the room, and of Pw4 who saw him running out of the room after killing the deceased. Pw4, the former wife of the accused, also saw him with the knife in the room, and after she was dragged out of the room by the Appellant, she heard Ibrahim (the deceased) asking the Appellant: “Are you going to kill me?”
The medical report which said the deceased died of shock due to massive haemorrhage as a result of damage to jugular vein, further corroborated the evidence of the Appellant (as per the Exhibits 2 and 3), and even his oral evidence in court, which showed he had fought with the deceased in the room.
The evidence of pw4, who confirmed seeing the Appellant with the knife and hearing the deceased asking the Appellant “Are you going to kill me? clearly presented the stage which may have led to the fury that made the Appellant to kill the deceased. JEALOUSY! seeing his former wife in a room with another man in the night was capable of such madness! But can it be justified, when the Appellant had divorced the pw4. The answer is capital No!
Appellant cannot claim he did not intend to cause the death of the deceased, as his intention can be inferred by the weapon he used and the point of impact which the Appellant hit the deceased.
In the case of MICHEAL v. STATE (2008) 13 NWLR (Pt. 1104) 361 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… 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…”
See also the recent decision of this court in SAMBO GALADIMA & ORS v. THE STATE: CA/K/142/C/2010, delivered on 8th February, 2013 (pages 33 to 35 thereof).
By applying the knife on the neck of the deceased, as per the evidence, there is no doubt that Appellant intended to slaughter the deceased as a goat or NAMA, or at least cause the deceased grievous bodily harm, thus satisfying the requirement of section 221 of the penal code where of Appellant was tried, for culpable homicide.
With this and the fully reasons in the lead judgment, I too dismiss the appeal and abide by the consequential orders in the lead judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A: I agree with the reasoning and conclusions in the lead judgment delivered by my learned brother, Aboki, JCA. I wish to make some additional comments.
This is an appeal against the judgment of the High Court of Kaduna State in Charge No KDH/KAD/10C/2003 delivered on the 24th of February, 2009 by Honorable Justice Gideon Isa Kurada. The Appellant was charged with culpable homicide punishable with death contrary to the provisions of section 221 of the Penal Code Law and he was alleged to have stabbed one Ibrahim Yusuf with two sharp knives on the neck on or about the 12th of August, 2002 at Adebo village in Birnin Gwari Kaduna State and thereby caused his instant death. The Prosecution called four witnesses and tendered four exhibits in proof of its case while the Appellant alone testified in his defence. At the conclusion of trial, the Appellant was found guilty and sentenced to death by hanging by the lower court.
The central issue for determination in this appeal is whether the Prosecution led credible, cogent and sufficient evidence before the trial Court to sustain the charge against the Appellant.
It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime of a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. 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. 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.
A charge of culpable homicide punishable with death is the same as a charge of murder and 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; (ii) 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 Vs. State (2011) 4 (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 not to be proved – Sabi V. State supra.
It was not in contest at the trial that the said Ibrahim Yusuf 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 Appellant 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 122) 354. This point was made by the Supreme Court in Oforlete V. State (2000) 12 NWLR (pt 631) 415 thus:
“In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence.”
In State v. Okpala (2012) 3 NWLR (pt. 1287) 388, the Supreme Court stated that as a general rule, the cause of death in a murder case is a medical question to be established on the evidence of a registered medical practitioner. The Prosecution in the instant case presented medical evidence as the cause of death of the deceased. The prosecution tendered the post mortem report prepared by the General Hospital Birnin Gwari as Exhibit 4. According to the post mortem report, the deceased died by reason of two deep stab wounds around the jugular of the neck which damaged the jugular vein and resulted in irreversible hypovolalonie shock due to massive hemorrhage.
On showing a causal link between the cause of death and the acts of the Appellant, 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 Prosecution tendered two confessional statements which it said were made voluntarily by the Appellant at the Anti Homicide Section of the State Criminal Investigation Department of the Police in Kaduna State on the 15th of August, 2008 and at the Birnin Gwari Police Division, Kaduna State on the 13th of August, 2002 as Exhibits 2 and 3 respectively through the first and second prosecution witnesses. The Appellant denied making the two statements. The lower court in its judgment stated thus on the making of the two statements by the Appellant:
“The Accused gave no reason to convince me or to show that the PW1 and PW2 lied against him that he volunteered statement to them which they recorded in English Language although the Accused made the statements in Hausa language. And I have no reason to disbelieve their evidence. Besides, I have carefully looked at the signatures of the accused on both Exhibits and they are very similar or the same, showing that the same person signed them. As I have said, Exhibit 3 was made on 13/8/2002 at Birnin Gwari while Exhibit 2 was made on 15/8/2002 at Kaduna. If the signatures were made by persons other than the Accused person, they would have been different. Furthermore, the statements are not thumb printed as claimed by the Accused, rather they are signed as stated as stated by the PW1 and PW2. I find as a fact, therefore, and I hold, that the Accused person indeed made Exhibits 2 and 3 to the PW2 and to the PW1 and he signed them. I do not believe that the PW1 and PW2 created the stories in Exhibits 2 and 3 and stated all that is said therein even when they were not in Adebo Village and they never knew the Accused, his former wife or the deceased. I reject the evidence of the Accused that he never made or signed the Exhibits. It is an afterthought.” (See page 72 of the records).
The lower Court thereafter went ahead to consider the contents of the two confessional statements and stated thus:
“I have read Exhibits 2 and 3. In Exhibit 3, dated 13-8-2002, the accused stated that he went to his former wife’s house (Amina) on 12/8/2002 and he met her with one man by name Ibrahim Yusuf in one room. He went to the room and wanted to enter they refused and he forced himself into the room. Ibrahim started to fight and at that time, he had a knife in his possession and he removed it and “chuk” (stabbed) him with the knife. Danladi and Danjuma who live in the house went out and met them. Later he left for his house.
In Exhibit 2, dated 15-8-2002, the Accused said it was Ibrahim and his former wife, Amina that fought him. All the same, he still maintained that he brought out a knife from his waist, which he always had in order to defend himself, and used it to stabbed (sic) Ibrahim Yusuf on the neck and Ibrahim Yusuf fell down there. In both Exhibits, the accused clearly confessed that he stabbed the deceased with a knife on the neck.
He also said in Exhibit 2 that the deceased fell down there. In my view, the confessional statements are direct and positive. The deceased died soon after he was stabbed (see pages 72 to 73 of the records)
The Appellant did not appeal against these findings of the lower Court and made no complaint against them in this appeal. The Appellant will be deemed to have accepted the findings and the appellate Court will not interfere with them – Nwaolisah V. Nwabufor (2011) 14 NWLR (pt 1268) 600.
Now, it is settled law that a confession does not become inadmissible merely because a defendant denies having made it. The denial of a statement made by a defendant to the police is only an issue of fact to be decided in the Judgment and it is not an issue which affects admissibility of the statement – Akpa Vs State (2008) 14 NWLR (Pt 1106) 72, Sule Vs State (2009) 17 NWLR (Pt 1169) 33, Mbang v. State supra, Nwokearu V. State 2010) 15 NWLR (pt 1215) 1 and Dele V. State supra. What is required is that before the court would believe and act on such a retracted confession it should subject the confessional statement to the following tests:
i. whether there is anything outside the confession which shows that it may be true;
ii. whether it is corroborated in any way;
iii. whether the relevant statements of facts made in it are mostly true as far as
they can be tested;
iv. whether the defendant had the opportunity of committing the offence;
v. whether the confession is possible; and
vi. whether the alleged confession is consistent with other facts that have been ascertained and established.
See the cases of Osuagwu V. State (2009) 1 NWLR (pt 1123) 523, Kabiru V.
Attorney General, Ogun State (2009) 5 NWLR (pt. 1134) 209, Nwokearu v. State
supra and Dele v. State supra.
The lower court found corroboration and evidence outside the confession in the testimonies of the four prosecution witnesses which supported the truth of the facts contained in the confessional statements. The third prosecution witness, one Idris Shuaibu, testified in examination in chief that he was sleeping in his room at about 12 midnight on the day in question when he heard a noise and he woke up and he came and met the Appellant stabbing the deceased with a knife and that when he asked the Appellant what was happening, the Appellant ran away. He testified that he saw blood flowing from the deceased and that the Appellant was with a knife and that he saw the deceased lying down on the floor. Under cross-examination, the third prosecution witness stated that the scene of the incident was his sister’s room which was closely linked to his room and that he went to his sister’s room immediately he heard the noise and that he met the deceased already fallen down and the Appellant who was standing and he reiterated that when he asked the Appellant what happened, the Appellant ran away.
The first prosecution witness, the police officer who took over the investigation of the case at the State Criminal Investigation Department, stated that the Appellant was transferred to his office along with a knife in a sheath recovered by the Birni Gwari Police Station and he tendered the knife as Exhibit 1. He testified under cross-examination that the color of Exhibit 1 was brownish black and when the Appellant was transferred with Exhibit 1, he removed the knife from its sheath and showed it to the Appellant and the Appellant said that it was the knife that he used and that there were dried blood stains on the knife. The second prosecution witness, the police officer who first investigated the case at the Birni Gwari Police Station, stated that the complaint was made at the Police Station by the third prosecution witness and that he recovered the knife used by the Appellant through the complainant who witnessed the incident and collected the knife from the Appellant. He said the knife was in sheath and he identified Exhibit 1 as the knife.
These pieces of evidence clearly corroborate and give truth to the contents of the confessional statements of the Appellant. The nature of the injury stated in the post mortem report to have caused the death of the deceased is consistent with the injury the Appellant confessed that he inflicted on the deceased. It is trite that a conviction can be sustained on a free and voluntary confession of a defendant notwithstanding that he retracted the confession – Solola V. State (2005) 11 NWLR (pt 937) 460, Osuagwu V. State (2009) 1 NWLR (pt 1123) 523, Arogundade V. State (2009) 6 NWLR (Pt 1136) 165, Oseni V. State (2011) 6 NWLR (Pt 1242) 138. The lower Court was correct in its finding that the Prosecution led credible evidence to establish the second ingredient of the offence against the Appellant.
On the third ingredient, Counsel to the Appellant referred to the statement of the learned trial Judge in the judgment that:
“As for the third ingredient, I can say straight away that none of the prosecution witnesses gave any evidence of any intention of the Accused to kill the deceased. There is no evidence that the Accused person declared any such intention.”
Counsel submitted therefrom that the Prosecution thus failed to prove the third ingredient of the offence beyond reasonable doubt and the nature of the intention of the Appellant when he entered the room where the incident occurred was not shown.
With respect to Counsel to the Appellant, his submission was rather mischievous as he quoted the learned trial Judge only in part. The learned trial Judge continued:
“However, it is the law that intent can be inferred from the acts of the Accused and the rule is that a man is taken to intend the natural and probable consequence of his own act. Intention to kill can also be properly inferred from the nature of the weapon used and the part of the body attacked.
From Exhibits 2 and 3, the Accused intentionally brought out a knife and stabbed the deceased with it on the neck. In my view the part of the body attacked and the weapon used, (a lethal weapon), shorn, that the Accused had intention to kill the deceased. The intent can be inferred from the weapon used and the Part of the body attacked, and I so infer.” (see pages 75 to 76 of the records)
The position of the learned trial Judge is very consistent with the present state of the law. 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 supra. 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. This Court cannot thus fault the finding of the lower Court on the third ingredient of the offence.
The Prosecution led credible and cogent evidence to establish the charge against the Appellant. It is for these reasons, and the more detailed reasons contained in the lead judgment, that I too dismiss this appeal and affirm the judgment of the lower Court.