GAMBO AHMADU v. THE STATE (2014)

GAMBO AHMADU v. THE STATE

(2014)LCN/7101(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of April, 2014

CA/K/290/C/2013

RATIO

INGREDIENTS TO BE PROVEN TO SECURE A CONVICTION FOR CULPABLE HOMICIDE

It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative of the following ingredients of the offence: (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. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Sabi Vs State (2011) 14 NWLR (Pt.1268) 421, Obi Vs. State (2013) 5 NWLR (Pt.1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt.1391) 298. It must, however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke Vs. State (2013) 16 NWLR (Pt.1381) 556 and Babarinde Vs. State (2014) 3 NWLR (Pt.1395) 568. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

DUTY OF COURT: EVALUATION OF EVIDENCE

It is trite that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception.
The second is to thereafter weigh the evidence in the con of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (pt.1256) 574, Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt.1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt.1266) 1. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

CIRCUMSTANCE IN WHICH YOUNG OFFENDERS MAY BE SUBJECT TRIAL BY JUVENILE COURT

It is trite that young persons are criminally responsible for their criminal acts or omission. All young offenders are subject to trial by Juvenile Courts except in two cases.
(1) where the charge is one of homicide
(2) where the Juvenile is charge jointly with an adult. The trial shall take place in a regular court, but in cases of homicide, a Juvenile Court can conduct a preliminary inquiry into matter but can not proceed to full trial of the offence, if a prima facie case is established. PER DALHATU ADAMU, J.C.A

EVIDENCE: CONFESSIONAL STATEMENT

It is a trite law that confessional Statement is one of the three(3) ways of proving guilt of an accused person as enumerated in the case of Ojo vs. FRN (2008) 11 NWLR (Pt.1909) pg. 67 of 513 aras F – G.
Confessional statement was held to be best in proving guilt of an accused person, Emeka vs. State (2001) 5 MJSC 1 at 12 paras A – B and Ojo vs. FRN (supra). Consequently, the Supreme Court in the case of Adio vs. State (1986) 2 NWLR (Pt. 24) 581 at 593 per Oputa JSC held thus:

“How is a case proved beyond reasonable doubt?
Case can be proved by direct oral evidence…
Circumstantial evidence can prove a case beyond reasonable doubt ….it is often said that witnesses can lie but circumstance do not, so in that sense, circumstantial evidence affords better proof beyond reasonable doubt. But far and above those two method is the voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. That is why such a confession by itself alone is sufficient without further corroboration to warrant a conviction. And there cannot be such conviction unless the trial court is satisfied that the case has been proved beyond reasonable doubt.”

Similarly, Tobi JSC in hid characteristic incidity on the efficacy of confessional statement stated in the case of Akpa vs. State (2008) 14 NWLR (Pt. 1106) 72 at 95 paras C – D thus:

“Confession in criminal procedure like admission in civil procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence, borrowing the daily axion comes out from the mouth of the house, who is the accused person, what better evidence than that? He knows or know what he did and he says or said it in court. Is there need for any further proof? I think not.”
Thus, a confessional Statement which is direct and positive and voluntarily made can be used in convicting the accused person. PER DALHATU ADAMU, J.C.A

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

CFR Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

H.A.O. ABIRU Justice of The Court of Appeal of Nigeria

Between

GAMBO AHMADU Appellant(s)

AND

THE STATE Respondent(s)

DALHATU ADAMU, J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of High Court, Kazaure Judicial Division, Jigawa State, presided over by Hon. Justice Ahmed Gumel. The appellant was brought before the trial court upon a charge dated 28th July, 2009. According to what appears on the record of proceedings, the charge was indicated to have been read out to the appellant. It was also indicated on the record that the appellant speaks Hausa. It is also on record that the charge was read to the appellant in Hausa language vice versa by the court’s Registrar Umar Murtala.

At the trial the prosecution called 4 witnesses namely:

1. Mallam Haruna Liman
2. Hussaini Haruna
3. James Biba (CP)
4. Cpl Muhammed Musa as (PW1 – 4).

The prosecution also tendered the purported confessional Statement of the appellant, which was admitted and marked as Exhibit P1 and P1A, Hausa and English translation of the confessional Statement of the appellant the prosecution also tendered an empty bottle of blood tonic which was also admitted and marked as Exhibit P2. The appellant testified in her own defence where she denied the allegation of murder against her. The defence tendered a declaration of age which was objected and rejected, and marked as “TENDERED BUT REJECTED.”

After reviewing the evidence of the parties the trial court found the appellant guilty and sentenced her to 10 years imprisonment. The 1st three years she should serve them under or in any Juvenile Reformatory Home, the rest of the seven years in a regular prison. Being dissatisfied with the judgment, the appellant filed a Notice of Appeal containing 2 grounds of appeal with their particulars.

The following two issues are distilled for the determination of this appeal:

“(1) Whether the prosecution of the trial was able to establish beyond reasonable doubt that the death of the deceased was caused by the Appellant by poisoning him with Gamaline “A” chemical and whether the trial Judge properly evaluated the evidence before him GROUND ONE AND THREE.

(2) Whether the learned trial Judge was right to proceed and sentence the appellant under Section 225 of Jigawa State. Inspite of unequivocal findings that the appellant was under age when she committed the offence.”

ISSUE ONE

On the 1st issue for determination the appellant counsel submitted that the law places the burden of proving the alleged offence of the prosecution and it is also a settled law that a person charged before a court of law for an alleged offence is presumed innocent until proved guilty, he referred to Section 135 of the Evidence Act 2001 and Section 36(1) of the CFRN as amended. The counsel further submitted that proof required in criminal offence or trial is beyond reasonable doubt, he referred to the case of Gira vs. State (1986) 4 NWLR (Pt. 443) pg 375 at 382 paras C – D.
The learned counsel for the appellant contended that the appellant was charged for an offence of murder and convicted accordingly. In other to succeed in proving the alleged offence, the prosecution must establish the following:

“(a) Whether the deceased have died

(b) Whether the accused person caused the dead of the deceased and;

(c) Whether the act of the accused person is intentional with the knowledge that death or grievous bodily having is its probable consequence, he referred to the case of Tegwonor vs. The State (2008) All FWLR (Pt. 424) pg 1484 at 1510 paras F – G.

The appellant counsel submitted that in other to establish the above requirement of the law the prosecution called 4 witnesses, from the evidence of the witness, it is clear that there was no eye witness to the commission alleged crime, upon which the appellant was convicted.

The appellant counsel contended that the evidence of PW1 is a hearsay, which is not admissible to establish the fact of what has been asserted, he refer to section 37 and 38 of the Evidence Act 2011. PW2 in his evidence adduced that the deceased told him that somebody put poison into his medicine and he took the medicine. PW2 asked his wife to get groundnut oil and later fresh milk and he asked the decease to take it, and the deceased took it, thereafter he died on the way to the hospital after vomiting, the pertinent question here according to the learned counsel is that, assuming that the deceased medicine was mixed with Gamaline A, which we deny, what is the effect of taking the groundnut oil and the fresh milk on the deceased, or when mixed with other chemical? The counsel contended that this question is very important and necessary for the prosecution to establish, in other to succeed in showing what caused the death of the deceased and not who caused it.

The appellant counsel submitted that the prosecution must 1st establish the causes of the death, then the issue of who caused it. It is further submitted that the act of given milk and groundnut oil to the deceased amount to Novus Actus Interveniens, and Novus Interveniens this aspect according to the counsel had to be established by complete medical report and it is wrong for the trial Judge to convict the appellant without that evidence, he refer the court to the case of Tegwonor vs. State (supra).

The appellant counsel contended that PW3 and PW4 are Police Officer. PW3 said that he recorded the Statement of the appellant, the Statement was recorded by him on the 1st February, 2009 and later the matter was transferred to the homicide unit in Dutse.

PW4 in his evidence also said he recorded the Statement of the accused person on 3rd February, 2009 and exhibit P1 and P1A, the Hausa and English translation were tendered, thereafter empty bottle of blood tonic was tendered as exhibit P2 from the evidence of PW3 and PW4 the appellant made 2 confessional Statement, one on the 1st February 2009 and the second on the 3rd February, 2009, recorded by PW4. At the trial only Statement recorded by the PW4 was tendered and no explanation was offered as to the Statement recorded by PW3 on the 1st of February, 2009. It is also beyond dispute that PW4 was the person who coined Gamaline A, during his explanation in his translation of exhibit P1 into English. One ASP Shehu Lawan said the chemical was insecticide. The issue at stake according to the learned counsel is that, was it insecticide, Gamaline A or the effect of taking groundnut oil and milk on top of Gamaline A that produced a chemical reaction which caused the death of the deceased? The burden to identify which substance caused the death of the deceased lies on the prosecution and they failed to do so by direct evidence. The counsel refer this Court to the case of Uguru vs. State (2002) FWLR (Pt.103) pg 330 at 334 paras E- G. The learned counsel for the appellant submitted further that the findings of the trial court of page 52 of the printed record was speculative and not based on the evidence adduced before the court. He urged your lordship to discountenance same. In line with the Supreme Court decision in Okorogba vs State (1992) 2 NWLR (Pt.222) pg 244 at 253 paras H.
It is also submitted by the learned counsel of the appellant that the lower court did not approach and evaluate the evidence before it in reaching its conclusion on the matter. He cited instances of such lack of appraisal, for example, PW3 said he recorded the Statement of the appellant on 1st February, 2009 and the recorded Statement of the appellant though mentioned in evidence in chief of the PW3 who recorded the same but it was not tendered and no account in form of evidence was given on why it was not tendered. The learned counsel submitted that it is the duty of the trial court to at least mention about it and make a finding on the failure to tender same, the counsel submitted that such withholding of evidence particularly in criminal matters is a serious matter, he referred to Section 167(d) of the Evidence Act 2011, the counsel submitted further that failure to appraise or evaluate the effect of the withholding of this evidence has led to a serious miscarriage of justice and urge the court to so hold.

The appellant counsel also submitted that the lower court failed to resolve the issue of what was put into the blood tonic bottle. ASP Muhammed at page 58 of the printed record said it was insecticide and PW4 a Police Officer said it was Gamaline A, see page 60 of the printed copy of the record. The counsel submitted that it is the duty of the trial Judge to resolve this issue one way or the other, as the entire case of the prosecution was hinged on that and failure to do so is fatal to the prosecutions case, without resolving this issue, according to the counsel, it is impossible to determine the cause of the death of the deceased, the learned counsel argued that, how did the trial court concluded that this 2 substances, Gamaline A and insecticide are poisonous. The finding of the trial Judge did not show why was the deceased taking blood tonic? Who prescribed it to him? Is it for ailment of the stomach pain as said by DW1? And what is the chemical effect of mixing groundnut oil and milk with blood tonic? This are various unresolved issue which are fatal to the prosecution.

The appellant counsel also contended that there are serious contradiction in the evidence of PW1 and PW2. PW1 said when he came, he met the deceased Unconscious, he also said at page 12 of the printed record that “Alhassan is dead”, they took him to the hospital and he further said “before he was attended to Alhassan died” of the same page 12. But PW2 said at page 17 of the printed record, “I took him on my back out of the house, when we walked a little a motorcycle was called, when the motorcycle came Alhassan gained his consciousness and even vomited”. PW2 further went on to say we met Dr. Aminu and the Doctor prescribed medicine for me.” From the above pieces of evidence it is quite clear that evidence of PW1 and PW2 are contradictory, and no effort were made to explain the contradiction.

The appellant counsel submitted that if a proper evaluation of evidence was made by the trial court, it will appear clear to the trial court that the retracted extra Judicial Statement of the accused will not pass the 6 way test laid down in the case of Ogudo vs. State (2001) 18 NWLR (Pt.178) pg 1 at page 26 paras E – G, therefore, the evidence led before the lower trial court of PW1 to PW4 did not in anyway support the retracted extra confessional Statement of the appellant, counsel urge your lordship to so hold and resolve the issue in favour of the appellant and set aside the conviction passed by the lower trial court.
In his reply the learned counsel to the respondent submitted that it is a trite law that for the prosecution to succeed in proving the offence with which the appellant was charged, it must prove the ingredient of the offence beyond reasonable doubt. On the ingredient of the offence of culpable homicide punishable with death under Section 211(b) of the Penal Code, the counsel referred the court to the cases of;

– Musa vs. State (2009) 15 NWLR (Pt 1165) at pg 467 at 486 paras C – E.
– Ochemaje vs. The State (2008) 15 NWLR (Pt.1109) 57 at 86
– State vs. Azeez (2008) 14 NWLR (Pt. 1108) 433 at 477 paras F – H.
– Adava vs. State (2006) 9 NWLR (Pt. 984) pg 152 at 167 paras F-H

The learned respondent counsel contended that the evidence of PW1 and PW2 at page 12, 17 and 18 of the printed record were not contradicted in any way by the appellant, nor the character of the witness impeded hence the trial court was right when it held at page 51, that from the totality of the evidence of the prosecution through PW1 – PW4, it was established that all the ingredient as contained in the case of Adekunle vs State (2003) 3 SCNJ were established and that being so the prosecutor has discharged the onus of proof test on it by the provision of the Evidence Act in Section 138.

Based on the above the counsel urged the court to hold that the prosecution proved the first ingredient of the offence beyond reasonable doubt.
With regards to the second ingredients the learned counsel to the respondent submitted that the prosecution tendered the confessional Statement of the appellant which was admitted by the lower court as Exhibit P1 and P1A. The Appellant in her confessional statement clearly Stated that she was the one that droped some substance insecticide (Gamaline A) into the medicine of the deceased, wherein after taken it he felt sick and died few minutes later, the learned counsel for the respondent submitted that there are 3 ways of proving guilty of an accused person, which are as follows:

– Confessional Statement
– Circumstantial evidence
– Evidence of eye witnesses.
Counsel referred to the case of Ojo vs. FRN (2008) 11 NWLR (Pt. 1099) pg 467 of 513 para F – G.

The learned counsel insisted that among the 3 ways stated above, confessional statement was stated to be the best he referred to the case of Emeka vs. State (2001) 5 MJSC 1 at 12 paras A – B; Ojo vs. FRN (supra); Adio vs. State (1986) 2 NWLR (Pt.24) 581 at 593; Akpa vs. State (2008) 14 NWLR (Pt.1106) 72 at 95 paras C – D.

Learned counsel contended that once the court is satisfied with the truth of such a confession, it can safely convict on same.
He referred to the case of Nwachukwu vs. State 1 2007 at 65 and Adio vs. State (supra) at page 563.

In the case at hand the respondent counsel argued that the confessional Statement of the appellant was never challenged on the ground that it was not voluntarily made, hence there was a concession of both parties that exhibit P1 and P1A was voluntarily made, he referred to the said exhibit of page 55 to 62 of the printed record of the proceeding of the lower court.
On the last ingredient, the respondent counsel placed reliance on exhibit P1 and P1A wherein the appellant confessed to have droped or put a poisonous substance into the medicine of the deceased which he died of a later time after taken same.
The learned counsel argued that this piece of evidence clearly shows that the appellant intended to cause bodily injury to the deceased.

On the question of whether the appellant knew or have reason to know that death will be the probable and not only leading consequence of body injury caused to the deceased, learned counsel submitted that it has always been difficult to establish with direct evidence, unless where the accused confessed orally the proof under this ingredient has always been through influence and circumstantial evidence, he referred to the case of Arebaman vs. State (1997) 7 NSCC 194 at 200. Based on the above submission the learned counsel urged the court to hold that the lower court was right when it held that prosecution discharged the burden of proof place on them by proving their case beyond reasonable doubt.
Learned respondent counsel argued that the submission of the appellant counsel in his brief, that there must be medical evidence to establish cause of death otherwise prosecution have failed to prove their case. Learnt respondent counsel contended that there are more than one possible cause of death and there might be Novus Actus Intervenes. Counsel further submitted that there was only one possible cause of death and not as portrayed by the appellant counsel. Learned counsel further submitted that fresh milk and groundnut oil can not kill. Thus it can not be termed as “Novus Actus Interveniens and Novo intervenes.”

Learned counsel further submitted that medical evidence is not essential in all cases to prove the cause of death and referred to the case of Uguru vs. State and the case of Ben vs. State (2006) 16 NWLR (Pt. 1006) 582 at 594 paras C – G and 595 paras C – D.

The learned respondent counsel argued that on the issue of contradiction raised by the appellant counsel by PW1 and PW2, the respondent counsel submitted that it is a settled law that for any contradiction or conflict in the evidence of prosecution’s witnesses to be fatal to the prosecutions case, the contradiction or conflict must be substantial and fundamental to the main issue in question before the court and referred to the cases of Nasamu vs. State (1979) 6 – 9 SC 153; Ibe vs. State (1992) 5 NWLR (Pt. 244) 642 at 649 and Ogunlana vs. State (1995) 5 NWLR (Pt. 399) 266 at 288.
The respondent counsel submitted that there was no contradiction between the testimonies of both witnesses.

In his reply on point of law, the learned appellant counsel submitted that the respondent had placed emphasis on the alleged confessional Statement of the appellant as contained in Exhibit P1 and P1A which was tendered into evidence through PW3, but the respondent silently failed to answer or furnish any explanation as to what the same witness said, that before recording of the Statement contained in exhibit P1 and P1A he on the 1st February, 2009 obtained or recorded the Statement of the appellant, the said Statement was deliberately not tendered by the prosecution and no explanation was given as to the reason or purpose of withholding that statement of the appellant; which was recorded immediately after the alleged incident.

Learned appellant counsel further submitted that since the respondent failed to produce that Statement, the presumption will be that if produced it will be in favour of the appellant, and appellant counsel referred the court to Section 149(d) of the Evidence Act LFN 2004 which law was the applicable statute at the time of the commission of the alleged offence. The learned counsel also referred the court to the case of Okike vs. L.P.D.C (2005) All FWLR (Pt.288) 1054 at 1080 paras E – F on withholding of Evidence.

Learned counsel further submitted that the act of the prosecution in not making the Statement made by the appellant on 1st February 2009, available to the trial Court amounts to an infringement of the appellants right of fair hearing as enshrined under Section 36 of the 1999 Constitution as amended, and referred the Court to the case of Dapianlong vs Dariye (2007) 8 NWLR (Pt. 1036) 239 at 285 paras F – H, on the nature of principle of fair hearing.

Learned appellant counsel submitted that attempt by the prosecution to withheld a vital evidence cannot be allowed to be swept under the carpet, and further submitted that if that statement was made available to the trial Judge it could have been possible that the verdict in the matter might not be the same.

Learned appellant counsel finally urge your lordship to say that without the first making available the Statement of the appellant made on the 1st February 2009, the effect of exhibit P1 and P1A cannot be effectively determined.

On issue No.1, it is trite in law 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. Where the commission of crime by a party is in issue in any proceeding 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. Thus. 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 on 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. It simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability.
Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favours 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.
Sabi vs. State (2011) 14 NWLR (Pt.1268) 421, Iwunze vs. Federal Republic of Nigeria (2013) 1 NWLR (Pt.1324) 119, Njoku vs. State (2013) 2 NWLR (Pt.1339) 548, Osuagwu vs. State (2013) 5 NWLR (Pt.1347) 360, Ajayi vs. State (2013) 9 NWLR (Pt. 1360) 589

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 act or omission of the defendant which caused the death of the deceased was done intentionally or carried out with knowledge that death or grievous bodily harm was its probable consequence-
Mbang vs. State (2010) 7 NWLR (Pt. 1194) 431
Usman vs. State (2011) 3 NWLR (Pt. 1233) 1,
Ufuebeka vs. State (2011) 4 NWLR (Pt.1237) 358,
Ismail vs. State (2011) 17 NWLR (Pt. 1277) 601
Ochiba vs. State (2011) 17 NWLR (Pt. 1277) 663
Ilodigme vs. State (2012) 18 NWLR (Pt. 1331) 1.
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 vs. State (supra)
Ochiba vs. State (supra).

On the first ingredient of the offence of culpable homicide, it is not in contest in this matter that a human being called Alhassan Haruna Liman is dead. The first and second prosecution witnesses, the father and brother of the deceased testified at pages 12, 17 and 18 of the printed record of proceeding of the lower court which was unchallenged in the defence of the fact and the corpse was buried. Thus it is confirmed that Alhassan was dead. The first ingredient of the offence of culpable homicide punishable with death was thus established without much ado.

On the second ingredient of the offence 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 respondent must establish the cause of death unequivocally and there must be cogent evidence linking the cause of the death to the act of the Appellant. Udosen vs. State (2007) 4 NWLR (Pt.1023) 125, Oche vs. State (2007) 5 NWLR (Pt.1027) 214, Ekpoisong vs. State (2009) 1 NWLR (Pt. 1122) 354, Ochibo vs. State (supra), this point was made a long time ago by the Supreme Court in the case of Lori vs. State (1980) 8 – 11 SC 81 at 95 – 96 where Nnamani JSC said:

“In a charge of murder, the cause of death can be established unequivocally and the burden rests on the prosecution to establish this and if they paid the accused must be discharged….it is also settled law that the death of the victim must be caused by the accused or put differently. It must be shown that the deceased died as a result of the act of the accused. ”

The point was reiterated by the Supreme Court in Oforlete vs. State (2000) 12 NWLR (Pt. 631) 415 thus:

“In every case where it is alleged that death 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 just 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 the 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 vs. 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.

In the instance case there was no medical evidence tendered by any registered medical practitioner as argued by the learned appellant counsel. In response from the respondent counsel, who submitted that medical evidence is not essential in all cases to prove the cause of death, where the cause of death is obvious.

It is settled law that where the death of a deceased is instantaneous or nearly so and there is no break in the chain of events from the time of the act of an accused defendant that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to act of the accused defendant, even without medical evidence of the cause of death. Essien vs. State (1984) 3 SC 14; Azu vs. State (1993) 6 NWLR (Pt. 299) 303; Aignoreghian vs. State (2004) 3 NWLR (Pt.860) 367, Akpa vs. State (2008) 14 NWLR (Pt. 1106) 72.
Thus, in Ben vs. 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 hand without a need for medical evidence. In Adekunle vs. 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. The rationale for this position, which is founded on sound logic and common sense is that since the act of the accused defendant is the most proximate event to the death of the deceased, it should be regarded as the deciding factor even where it may be taken as merely contributory to the death of the deceased Jeremiah vs. State.

In the instant case, there was a broken chain of events from the time the deceased was said to be unconscious to the time of the death of the deceased. It is clear that there was no eye witness to the commission of the alleged mixing of the deceased medicine with the poisonous substance. PW1 in his evidence in page 11 and 13 of the printed record said:

“Alhassan was out of his sense, he was in terrible condition he is unconscious. Alhassan is dead.
Alhassan died as a result of something that was put inside his medicine which is poisonous when he took it that was the cause.”

PW1 evidence is hearsay, hearsay evidence is not admissible in law, Section 37 and 38 of the Evidence Act 2011. PW1 was not a witness of all that he said, he was not there when the alleged act was done.

He further continue by saying:

“When we saw the condition of Alhassan, we took him to hospital, when we reached the hospital the doctor said the intestines of Alhassan are seriously damaged.
Before he was attended to, Alhassan died. ”

With regards to the doctor who made the examination on the deceased, who said;

“The intestine of Alhassan was seriously damaged did not give any medical report to the effect, nor did he say what caused the damage of the deceased intestine.”

The packet or bottle of the alleged Gamaline “A” was not tendered in evidence and there was no evidence to show why it could not be tendered.
All the above analysis were not made by the lower court before arriving at the conclusion that the acts of the appellant caused the death of the deceased. There was no credible evidence led by the Respondent to prove that the second ingredient of the offence of culpable homicide punishable with death was established.

This Court is obligated to resolve this doubt in favour of the Appellant. This evidence led does not support the finding of the lower court that the Respondent proved the second ingredient of the offence of culpable homicide punishable with death beyond reasonable doubt, because the prosecution failed to link the cause of death to the accused person which is a very vital ingredient to success in conviction of a murder case. It is a trite law that to establish this ingredient beyond reasonable doubt the respondent must establish the cause of death unequivocally and there must be cogent evidence linking the cause of death to the act of the Appellant Udosen vs. State (supra), Oche vs. State (supra), Ekpoisong vs. State (supra), Ochiba vs. State (supra) and Lori vs. State (supra).

From what I said above, issue No.1 and the grounds of appeal upon which it was predicated have been resolved against the respondent and in favour of the appellant.

The third requirement of the charge of culpable homicide punishable with death is whether the Appellant 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 charge of culpable homicide punishable with death.

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, the defendant must be held culpable for the offence of murder. Nwokearu vs. State (2010) 15 NWLR (Pt. 1215).
In order to determine whether an accused person really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; wire he 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 vs. State (1994) 8 NWLR (Pt. 365) 719. Thus in Ejeka vs. State (2003) 7 NWLR (Pt. 819) 408, where the appellant stabbed the deceased with a fade knife of a fragile part of the body such as the heart, the Supreme Court held that this clearly explained the appellant’s intention was to cause grievous injury to the deceased.
Similarly, in Nwokearu vs. 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.

Each case must however, be decided on its own peculiar facts. The question is whether, in the circumstances of this case, the Respondent led evidence to prove that the appellant intended to murder the deceased or to cause him grievous bodily harm.
In resolving this question the lower court stated:

“It is the candid opinion of this Court that the prosecution evidence linked the accused person with the commission of the offence as charged. This Court is of the strong view that the accused person even though under age is clearly shown she deliberately with intention to cause the death of the deceased poisoned him as a result of that the deceased died.”

The basis of this judgment was traced to the early paragraph of the judgment where it stated:

“The evidence of the prosecution is overwhelming against the accused person. If this Court is to rely only on the confessional Statement Exhibit P1 & P1 A respectively, it can ground conviction, because the confessional Statement is made voluntarily when the facts of the case are fresh in the memories of the accused person. There is also no evidence challenging the veracity or otherwise of the voluntariness of the confessional statement. However the only defence put forward worthy of consideration is the issue of age of the accused person of the time of the commission of the offence as charged.”

The lower court relied and concluded on the confessional Statement of the appellant, which shows clear intention to cause death of the deceased by poisoning him to death with knowledge that death was probable or to cause him such bodily injury that death will be the natural consequences of her act.

In the appellants brief, he contended that PW3 and PW4 both Police officers, testified in pages 19 – 20 and 21 – 27, of the printed record. PW3 said he recorded the Statement of the Appellant, on the 1st February 2009, before D.C.O. Mohammed and PW4 also said he recorded the Statement of the accused/appellant on the 3rd February 2009 and through him Exhibit P1 & P1A Hausa and English version of the statement was tendered.

From the above record, the appellant made two(2) confessional statements to the police on the 1st February, 2009 and on the 3rd February 2009. And of the trial court only Statement recorded on the 3rd February 2009 was tendered and no explanation was offered as to what happened to the Statement recorded by PW3 on the 1st February 2009. Thus it leaves me in doubt as well.

Similarly, Tobi JSC in hid characteristic incidity on the efficacy of confessional statement stated in the case of Akpa vs. State (2008) 14 NWLR (Pt. 1106) 72 at 95 paras C – D thus:

In the instant case the trial court convicted the appellant on her confessional Statement, which was not contested by the appellant’s counsel. It was tendered and admitted without objection. The only contention of the appellant as regards to the confessional statement in their appellant brief is the absence of the 1st confessional Statement recorded by PW3 on the 1st February 2009 and no explanation was made by the trial court as to why and the second confessional Statement made by the appellant on the 3rd February 2009 recorded by the PW4 was tendered and admitted which was however the bases of the conviction of the appellant by the lower court.

In the instance case, the lower court was on firm ground on this finding, for relying on the confessional Statement of the accused person, since there was no objection from the appellant as to the veracity of the Statement. Thus the lower court concluded that the act of the appellant clearly showed their intent was to cause the death of the deceased or to cause him such bodily injury that death will be the natural consequence of her act.

In conclusion on issue 1, the Respondent has failed to establish the three(3) ingredients of the offence of culpable homicide punishable with death, wherein the second ingredient was not proved beyond reasonable doubt, which the court is in doubt as to the linkage of the death of the deceased to the act of the Appellant. Thus, the doubt credited in our mind is resolved in favour of the appellant.

ISSUE TWO

On issue two the learned appellant counsel submitted that it is on record that there is no dispute that the appellant was at the time of alleged commission of the offence on or around 29th January 2009 was below the age of 17 years. The appellant referred your lordships to pages 25, 26, 43 and 52 of the printed record, where it was showed that the age of the appellant was not disputed. The appellant counsel submitted that the age of the appellant was not made an issue even before the lower court and went ahead and referred the court to the case of Guobadia vs. State (2004) FWLR (Pt. 188) 1065 at 1074 – 1075 paras H – A.
Learned appellant counsel further submitted that in resolving the issue it is necessary to determine whether the appellant is a young person or not. Appellant counsel referred to Section 2 of the Children and Young Persons Law Cap 22 which provides as follows: “Young Person” means a person who has attained the age of fourteen years but who has not attained age of eighteen years.” Learned counsel submitted that the appellant’s age falls within the definition of the Section 2 (supra).

Learned counsel also referred the court to Section 270(1) of the Criminal Code of Jigawa State and also Section 303(1) of the same law, where he said the position is the same under the Criminal Procedure Act with Sections 420 and 368(3) of the said law. The learned counsel also referred the Court to the case of Modupe vs. State (1988) 4 NWLR (Pt.87) 130 or (1988) 9 SCNJ 1 on the interpretation of the Section by the Supreme Court, and the Court of Appeal.
The learned appellant counsel finally submitted that by the pronouncement of this Court and the Supreme Court as highlighted above the sentence passed by the lower court was not in conformity with the provisions of the law and urge the Court to so hold and resolve the issue in favour of the appellant by setting aside the conviction and sentence of the appellant by the lower court and allow the appeal.

In reply on issue 2, learned respondent counsel contended that the age of the appellant was never raised of the trial court by the parties, as contended by the appellant counsel in his brief of argument. Learned respondent counsel submitted that without the leave of the court, it cannot be raised in the appellant’s brief of argument and referred the Court to the cases of Oikherhe vs. Inwanofiro (1997) 7 NWLR (Pt.512) 226 at 239 and Wada Idi vs. State (Unreported) decided by this Court in Appeal No. CA/K/151/12 on the 17th May, 2013; Ndukwe vs. State (2009) 7 NWLR (Pt. 1139) 43 at 74-75 paras G – A and Ebenahi vs. State (2005) 6 NWLR (Pt. 1188) 431 at 442 paras C – D.

Learned respondent counsel further submitted that the argument made by the appellant counsel in his brief that the sentence passed by the lower trial court was not in conformity with the provision of Section 272(1) of the Criminal Procedure law and 303 of the same Criminal Procedure law which were in pari-materia with the provisions of Section 420 and 368(3) of the Criminal Procedure Act. The counsel submitted that the later Section were interpreted in the Supreme Court’s case of Modupe vs. State (1988) 4 NWLR (Pt.87) 138 or (1988) 9 SCJN 1. Counsel further submitted that assuming without conceding the arguments and submissions of the appellant’s counsel would it be enough to prompt this Court in reversing the lower court’s decision? Counsel submitted that the answer will be in the negative; and referred the court to Section 382 of the CPC cap 39 of Jigawa State Laws 1998.
Learned respondent counsel submitted that the burden is on the appellant to establish the occasion of failure of justice as a result of the trial court’s sentence and referred the Court to the case of Buraiman Ajayi vs. Zaria Native Authority (1964) NWLR 61 at 65.
Learned respondent finally urge the Court to affirm the conviction and sentence of the appellant and dismiss the appeal.

On issue No. 2, the appellant’s counsel argument is that in resolving the issue it is necessary to determine whether the appellant is a young person or not?
It is on record as stated by the appellant’s counsel that the age of the appellant at the time of the alleged commission of the offence, on or about 29th January, 2009 was below the age of 17 years, reference to pages 25, 26,43 and 52 of the printed record where it was showed that the age of the appellant was not disputed.

To determine who a young person is, Section 2 of the Young Persons Law, Cap 22 laws of Jigawa State provides:

“Young person” means a person who has attained the age of fourteen years but who has not attained the age of eighteen years.”

From the record, it is clear that the appellant’s age falls within the above definition of a young person and I so hold that the appellant is a young person, based on the provision of the law.

In the instant case it has been established that the appellant is a young person, and should be charge before the Juvenile Court from the record of proceeding same has been achieved and after the admission of the confessional Statement of the accused into evidence a prima facie case was established the matter was transferred to the High Court as provided by the law.
In response the Respondent’s argument was that the age of the Appellant was never raised of the trial court by the parties as contended by the Appellant in his brief of argument. The Respondent’s argument is that leave of the court must be sought before the Appellant can raise the issue of the age of the Appellant.
With regards to seeking leave of the court to raise new issues on appeal, the law is clear that leave is necessary to raise fresh issues on appeal, on issue not raised of the trial court without such leave the party will not be heard on the point. Zebile vs. Reg. Trustees of C & B Church of Zion of Nigeria (2003) 2 NWLR (Pt. 804) pg 399 paras B – C.
But there are some circumstances where points not canvassed of trial court may be allowed to be raised on appeal for instance, where the question involves substantial point of substantive or procedural law, and where it appears plain that no further evidence need be adduced in appellate court will allow the question to be raised and taken to prevent a miscarriage of justice. However leave must be sought and obtained from the appellate court to raise and canvass such points.
Such leave will however not be granted where the point sought to be raised for the first time introduces entirely new case or line of defence different from the issue sought by the parties in the trial court. Best Vision Cent Ltd vs. U.A.C.N PDC PLC (2003) 13 NWLR (Pt.838) pg 604 – 605 paras H – C.

In the instant case the issue of the age of the appellant was not raised for the first time, it has been raised of the trial court and in the appellant brief and I consider it not as a fresh issue on appeal which leave of court must be sought before raising or canvassing it. It is therefore my view that the appellants need no leave of court to raise the issue of the age of the appellant on appeal.

It is further submitted by the appellant counsel that the sentence passed by the lower court was not in conformity with the provision of Section 272(1) of the Criminal Procedure Law and 303 of the same criminal procedure law which were in pari-materia with the provision of Section 420 and 368(3) of the Criminal Procedure Act.
The Supreme Court interpreted the above Sections in Modupe vs. State (1988) 4 NWLR (Pt. 87) 130.
“By virtue of the provisions of Section 368 Criminal Procedure Act, of the evidence on record shows that of the time the offence was committed, (which is the crucial date) an accused charged with capital offence has not attained the age of seventeen years, it will be wrong if any court not only to sentence him to death but also to even pronounce or record such sentence.”
If the evidence on record shows that of the time the offence was committed (which is the crucial date) the Appellant had not attained the age of seventeen years then the mandatory provision of Section 368(3) of the Criminal Procedure Act will apply and then again it will be wrong of any court not only to sentence her to death but also to pronounce or record such a sentence.

From the record the judgment of the lower court has these to say;
“This Court is not unmindful with the law that says accused persons below the age of 18 cannot be convicted before a court of law to death. The question is that the offence as per the charge sheet is for death penalty where the accused person is found guilty. This Court is also mindful with the decision of the Supreme Court in the case of Aminu Tanko vs. State (2009) SC.”

In view of the above the Respondent did not prove its case beyond reasonable doubt, which left doubt as to the connection of the accused person to the death of the deceased and it’s the law that Respondent can only sustain conviction where it has establish the necessary ingredient of the offence of culpable homicide punishable with death.
Having said that without much ado, it is the candid opinion of this Court that the sentence passed by the lower court was not in conformity with the provisions of the law.
This Court is obligated to resolve this doubt in favour of the Appellant. The evidence led does not support the findings of the lower court that the Respondent proved the second ingredient of the offence of culpable homicide punishable with death beyond reasonable doubt.
This Court holds that the lower court should have found the Appellant not guilty of the charge since the ingredient of the offence was not link and as to sustain homicide punishable with death.
In conclusion, this Court finds merits in this appeal and the conviction of the Appellant for culpable homicide punishable with death by the lower court is hereby set aside and the sentence of imprisonment for the term of 10 years, the 1st three years to be served in any Juvenile Reformatory Home and the rest of the 7 years to be served in a regular prison; is also set aside ad the appeal is allowed.
These shall be the order of this Court.

ITA MBABA, J.C.A.: I agree with the reasoning and conclusion of my learned brother Adamu JCA (PJ) and also allow the appeal and abide by the consequential orders in the lead judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have read the lead judgment delivered by my learned brother, Dalhatu Adamu, JCA.
His Lordship has considered the issues in contention in this appeal. I agree with the conclusion reached therein.

The Appellant was arraigned before the lower Court on a one count charge of culpable homicide punishable with death under section 221 (b) of the Penal code and she was alleged to have caused the death of her husband, Alhassan Haruna Liman, on the 29th day of January, 2009 in Tsadoji Village in Kazaure Local Government Area of Jigawa state by putting poisonous chemical called Gamaline in his medicine and after drinking which he became unconscious and later died in the hospital. The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial. The Respondent called four witnesses in proof of the charge and tendered three exhibits marked as Exhibits P1, P1A and P2 while the Appellant testified as the sole witness in her defence. At the conclusion of trial, the lower court found the Appellant guilty as charged but stated that since the evidence showed that the Appellant was a juvenile, still being under the age of 18, she could not be sentenced to death. The lower court sentenced the Appellant to a term of ten years imprisonment and ordered that the first three years should be spent in a Juvenile Reformatory Home while the remaining seven years should be spent in a regular prison. The Appellant was dissatisfied with the judgment of the lower Court and sequel to an extension of time granted her by this Court on the 19th of June 2013, she filed a notice of appeal dated the 24th of June, 2013 on the 28th of June, 2013. The notice of appeal contained three grounds of appeal.
Counsel to the Appellant distilled two issues for determination in the Appellant’s brief of arguments and Counsel to the Respondent agreed with the two issues as formulated. The issues were:

i. Whether the prosecution at the trial was able to establish beyond reasonable doubt that the death of the deceased was caused by the Appellant by poisoning him with a Gamaline a chemical and whether the trial Judge properly evaluated the evidence before him.

ii. Whether the learned trial Judge was right to proceed and sentence the Appellant under section 225 of Jigawa Sate inspite of unequivocal findings that the Appellant was under age when she committed the offence.

The main grouse of the Appellant in the first issue for determination is that the lower Court failed to properly evaluate the evidence led by the parties at the trial. It is trite that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception.
The second is to thereafter weigh the evidence in the con of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (pt.1256) 574, Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt.1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt.1266) 1.

It is the primary responsibility of a trial court to hear the parties, watch and observe the demeanour of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision. Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the court arrived at its conclusion of preferring one piece of evidence to the other – Idakwo Vs. Nigeria Army (2004) 2 NWLR (Pt.857) 249, Oyekola Vs. Ajibade (2004) 17 NWLR (Pt.902) 356, Imoh Vs. Onanuga (2013) 15 NWLR (Pt.1376) 139 and Al-Mustapha Vs. State (2013) 17 NWLR (Pt. 1383) 350. Even where only one of the parties lead evidence, the lower Court still has a duty to evaluate the evidence led by that party to see whether it meets the requirements necessary for the party to succeed. This is particularly more so in a criminal trial, as in the instant case, where an accused person is constitutionally presumed innocent until proved guilty and the onus is on the prosecution to establish the guilt of the accused person beyond reasonable doubt, and it is an onus that does not shift.

The entire judgment of the lower Court in the instant case was all of four pages and out of which the lower Court used one and a half pages to find the Appellant guilty and the other two and a half pages to sentence the Appellant. The lower Court commenced the judgment by stating in full the charge against the Appellant and immediately thereafter stated thus:

“The prosecution called four (4) witnesses in order to prove the case beyond reasonable doubt against the accused person. The confessional statement of the accused person Exhibit P1, P1A was tendered by the prosecution through PW4 and it was admitted as about when there was no objection raised by the defence counsel.

From the totality of the evidence of the prosecution through PW1 – PW4 it was established that all the ingredients as contained under the case of ADOKUNLE VS STATE (2003) 3 SCNJ that being so the prosecution has discharged the onus of proof vested on it by the provisions of section 138 of the Evidence Act. The Defence counsel called only one witness i.e. the accused who testified as DW1.
The evidence of the prosecution is overwhelming against the accused person. If this court is to rely only on the confessional statement Exhibit P1 & P1A respectively, it can ground conviction, because the confessional statement is made voluntarily when facts of the case are fresh in the memories of the accused person. There is no evidence challenging the veracity or otherwise of the voluntariness of the confessional statement. However the only defence put forward worthy of consideration is the issue of age of the accused person at the time of the commission of the offence charged.”

The lower Court considered the issue of the age of the Appellant and the proceeded thus:

“Having said that and without much ado, it is the candid opinion of this court that the prosecution evidence linked the accused person with the commission of the offence as charged. This court is of the strong view that the accused person even though under age, is clearly shown she deliberately with intention to cause the death of the deceased poisoned him him as result of that the deceased died. It is very clear that the defence put forward did not exonerate the accused Person. This court hereby found (sic) the accused person guilty as charged. The accused Person is accordingly convicted.”

This was all the deliberation made by the lower Court on the charge against the Appellant. It must be noted that the lower Court never said that it relied on the confessional statement of the Appellant in finding her guilty. What the lower Court said was that if it was to rely on the confessional statement it could ground the conviction because the confessional statement was made voluntarily and there was no evidence challenging the veracity or otherwise of the voluntariness of the confessional statement. The judgment did not show that lower Court subjected the evidence of the prosecution witnesses to any assessment. It did not show how the lower Court came to the conclusion that the evidence led by the Respondent met the required standards and proved the essential ingredients of the charge of culpable homicide punishable with death beyond reasonable doubt. It did not display the basis for the conclusion of the lower Court that the Appellant was guilty as charged.
It is trite that in a criminal trial, the question always is whether there is evidence of such quality on every material ingredient of an offence that it ought to be believed and as such, a trial Court is obligated to scrupulously examine, analyze and weigh every item of evidence to assess the substantiality of the testimony and statements proffered or made – Ibrahim Vs State (1991) 4 NWLR (Pt 186) 399, Alake Vs State (1992) 9 NWLR (Pt 265) 260, State Vs Onyeukwu (2004) 14 NWLR (Pt 893) 340 and Bello Vs State (2007) 10 NWLR (Pt 1043) 564. The lower Court in the case completely abdicated its responsibility and did not approach its task of determining the guilt of the Appellant with any sense of duty.

This attitude of the lower Court is very worrying and must be disturbing to anyone with a fair understanding of the concept of justice; that justice must not only be done but must be seen to have been done. This is particularly more so when it is considered that the offence with which the Appellant was charged is a grave one and the lower Court pronounced the Appellant guilty without displaying on the record the reason for doing so. The learned trial Judge did not show that he knew what he was doing. It is essential that all persons who hold the high office of a High Court Judge and the like must always and constantly display learning, understanding and an appreciable level of awareness of their responsibilities in the performance of their duties and obligations. It is the only way that such a person can show that he is deserving of being entrusted with the office and the responsibilities that go with it. I have had cause to make similar statements in the case of Abdu Vs State (2014) LPELR- 22562(CA) which was also an appeal, against the judgment of the Jigawa State High Court on a similar charge and for the same failure to evaluate evidence before making finding of guilt against an accused person.
This was a clear case of no assessment of evidence by the lower Court. It is settled law that the proper steps for an appellate court to take where the lower court has failed to properly evaluate the evidence led by parties at the trial is either to order a retrial or carry out the evaluation of the evidence available on the records if the question of credibility of witnesses would not arise – Orianwo Vs Okene (2002) 14 NWLR (Pt.786) 156,Wachukwu Vs Owunwanne supra, Ovunwo Vs Woko (2011) 17 NWLR (Pt.1277) 522. Where the credibility of a witness is not in point, a court sitting on appeal can evaluate such evidence. Where the conclusion is arrived at without any real controversy, such as in the case of documentary evidence, or where there is oral evidence which involves merely an admission by the adversary, or there is an unchallenged piece of evidence, an appellate court should consider itself to be in as good a position as the trial court, in so far as the evaluation of such evidence is concerned – Ebba Vs Ogodo (1984) 1 SCNLR 372, Ogundepo Vs Olumesan (2011) 18 NWLR (Pt 1278) 54. The case of the Respondent, in the instant case revolved around unchallenged testimonies of the prosecution witnesses and the confessional statement of the Appellant. This is matter in which this Court can exercise its power of evaluation of evidence.

In the instant case, it is not in contest that the person said to be the deceased in the charge against the Appellant, Alhassan Haruna Liman, is dead and that he died on the 29th day of January, 2009. On whether it was the act of the Appellant that caused the death, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant. This point was made a long time ago by the Supreme Court in the case of Lori Vs. State (1980) 8 -11 SC 81 at 95 – 96 where Nnamani, JSC said:
“In a charge of murder, the cause of death must be established unequivocally and the burden rests on the prosecution to establish this and if they fail the accused must be discharged … It is also settled law that the death of the victim must be caused by the accused or put differently, it must be shown that the deceased died as a result of the act of the accused.”
The point was reiterated by the Supreme Court in Oforlete Vs 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 Osuoha Vs State (2010) 16 NWLR (Pt 1219) 364, the Court of Appeal stated that to sustain a charge of murder, the cause of death must be linked to the act of the accused with certainty and clarity and not on the basis of conjecture, imagination, or loose deduction and it must be proved that the accused knew that his act will result in death or did not care whether death of the deceased will result from his act.
The law recognizes that in proving that the act of an accused person caused the death, a case can be prove beyond reasonable doubt 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 – Oguno Vs State (2013) 15 NWLR (Pt.1376) 1 and Babatunde Vs State (2014) 2 NWLR (Pt.1391) 298. In the instant case, the Respondent called four witnesses and tendered three exhibits marked as Exhibits P1, P1A and P2 in proof of its case against the Appellant.
The first prosecution witness was Haruna Liman, the father of the deceased, and he testified that when he returned home on the 29th of January, 2009 he was called by one Hussaini to come and see the condition of the deceased and that the deceased was out of his senses and was in a terrible condition and was unconscious. He stated that they took the deceased to the hospital and that when they reached the hospital, the Doctor said that the intestine of the deceased was seriously damaged and that the deceased died before the Doctor attended to him and that the deceased died as a result of a poisonous thing that was put inside his medicine which he drank. He stated that the deceased told his brother that he suspected that somebody put something poisonous in his medicine and that they suspected that it was Gamaline A that was kept in same room that was put inside the medicine. He testified that it was the Appellant that put the Gamaline A inside the medicine and that the Appellant told the Police in his presence that she mixed Gamaline A with the medicine and that her husband drank the medicine.
The second prosecution witness was Hussaini Haruna, the brother of the deceased. He testified that on the 29th of January, 2009, himself and the deceased woke up well and healthy and went to work and after which they returned home in good health and they both prayed and ate together in his room. He stated that they had some discussion and that the deceased left and went to his room but that after sometime the Appellant came to call him saying the deceased asked him to come and that on getting to the room of the deceased, he met him saying “we are from Allah and to Allah we shall all return”. He stated that he inquired from the deceased three times what the matter was and that the deceased raised his head and said someone put poison in his medicine and that he had taken the medicine and that he did not know who put the poison in his medicine. He stated that he gave the deceased groundnut oil and cow milk to drink to ease the effect but that the deceased did not get better and he later, in company of the first prosecution witness, took the deceased to the general Hospital Kazaure where they met one Dr. Aminu and that he told the Doctor that the deceased took poison. He stated that the Doctor prescribed medicine for him to go and purchase but that by the time he returned the deceased was dead. He stated that on the next day the Police came to interrogate the Appellant and she confessed that she was the person who put poison inside the deceased’s medicine and that she repeated this fact both at the Police Station and at the State CID Office in Dutse.
The third and fourth prosecution witnesses were the Investigating Police Officers who investigated the case at Kazaure Police Station and at the Homicide Section of the state CID, PC James Baba and Mohammed Musa and their evidence centered around how they separately and, at different times recorded the statement of the Appellant and how she was interviewed by their superior officers and before whom she confirmed that she made the statements. The statement of the Appellant recorded in Hausa by the fourth prosecution witness and its English translation were admitted as Exhibits P1 and P1A. The fourth prosecution witness also tendered an empty bottle of Blood Tonic’, presumably the bottle of medicine that the deceased allegedly drank from, as Exhibit P2.
The relevant portion of the English version of the statement of the Appellant, Exhibit P1A, read thus:

“…on Thursday 29-01-09 at about 1400hrs I was inside my room and I remember that the passed four days my husband bought chemical (gammallen A) that put under his under my bed, … also there’s a bottle of blood tonic he bought and using it. I took the chemical (garnmallen A) and drop some into the bottle that he’s using it, after the maggarib prayer he came back from Kazaure and after eating his food with some time remember that he did not drink his medicine, he took his medicine and drink, … later he went and dig small hole and pour the remaining medicine, wash his mouth went and sleep. After three minute told me to called his brother one Hussaini.
By his coming he told him that he drink medicine. His brother Hussaini sees him not in his control, he told his wife one Sa’ade brought groundnut oil he gave him and drink, she still brought cow milk from one Mallam Hanisu house gave him and drink, but upon all those Alhassan confuse out of his control, then Hussaini took convey them to Hospital. We were there by the main road waiting for motorcycle he vomit, by then motorcycle raider convey them to General Hospital Kazaure while I and Sa’ade came back home. From there in the night one Tukur “m” of Tsamiyar Ilu came and informed us that my husband Alhassan died at the Hospital. Sometime they brought his corpse and the buried the following day Friday. The bottle brought together with me is the bottle I putted him medicine inside. That is all.”

In her testimony in her defence, the Appellant denied the entire case of the Respondent and denied ever confessing or admitting that she put Gamaline “A” in the medicine of her husband when she was interrogated by the Police and she stated that the testimonies of the prosecution witnesses were not true. She stated that she had never seen or used Gamaline “A” in her life and that she did not even know what it is and that the deceased asked her to call the second prosecution witness because he had stomach problem and that she did not know the cause of the stomach problem.
She stated that the deceased told her that he was sick and that he ate food with the second prosecution witness and the second prosecution witness ate part of the food and when he was satisfied, left the deceased eating the food and that when the deceased came to her room, he complained of stomach problem and the second prosecution witness came and took him to the hospital. She was shown Exhibit P2 and she stated that she did not know the contents of the bottle of medicine the deceased used to take.
This was all the evidence ted by the parties before the lower Court. The Respondent did not tender or lead any medical evidence of the cause of death of the deceased.
The law as a general rule is that the cause of death is a medical question to be established on the evidence of a registered medical practitioner – State Vs Okpala (2012) 3 NWLR (Pt.287) 388. The law, however, recognizes that in a murder charge, much as medical evidence is desirable, 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 there is evidence that a deceased person was hale and hearty before the occurrence of an offending act and death is instantaneous or nearly so and there is no break in the chain of events from the time of the act that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to that act, even without medical evidence of the cause of death – Essien Vs State (1984) 3 SC 14, Adekunle vs State (1989) 5 NWLR (Pt 123) 505, Aiguoreghian vs State (2004) 3 NWLR (Pt 860) 367, Akpa Vs State (2008) 14 NWLR (Pt.1106) 72.
For this to happen, however, there must be sufficient satisfactory and conclusive evidence showing beyond reasonable doubt the cause of death. In other words’, the cause of death must be obvious from the evidence led as in Ogbera Vs State (1985) 3 NWLR (Pt 11) where the appellant shot the deceased with a sub-machine gun in the stomach and the deceased died the following day or in Ben vs 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. Where there is no eye witness to the act of killing and there is no sufficient satisfactory and conclusive evidence showing the nature of the injury inflicted on the deceased by the accused person, medical evidence of the cause of death is vital to the case of the prosecution – Onyenankanga Vs State (1964) NMLR 34, Bukuri vs State (1965) NMLR 162, Obi vs State (2013) 5 NWLR (Pt 1346) 68.
In the instant case, there was no eye witness account of the act of the Appellant that caused the death of the deceased. Further, the Respondent did not tender before the lower court the container of the chemical, which was said to be under the bed of the Appellant in the her room and which the Appellant was said to have confessed to have put in the bottle of blood tonic of the deceased, and no explanation was offered for this, The Respondent led no evidence to show that the said chemical, stated to be Ghamaline on the charge sheet, Gamaline “A” in the testimony of the witnesses and Gammalline “A” in the confessional statement of the Appellant, and by which the Appellant was said to have killed the deceased, was a poisonous substance that had the capacity to kill a person. The Respondent tendered no laboratory analysis showing that the contents of the bottle of blood tonic, Exhibit P2, the deceased was said to have drank contained poisonous substances. There was thus no satisfactory and conclusive evidence of the nature of the injury inflicted on the deceased by the Appellant and/or that the injury the Appellant confessed to have inflicted on the deceased in the confessional statement was such that could have cause the death of the deceased. The Respondent thus woefully failed to establish beyond reasonable doubt that it was the act of the Appellant that caused the death deceased.
This is sufficient ground to hold that the decision of the lower court finding the Appellant guilty of the offence of culpable homicide punishable with death is perverse and I so hold. It is for this reason that I find merits in this appeal and that I agree with the lead judgment that the judgment of the High court of Jigawa State in charge No JDU/28C/2009 delivered by Honourable Justice Ahmed Isah Gumel on the 22nd of December, 2010 and the sentence passed on the Appellant therein be set aside. I hereby enter an order discharging and acquitting the Appellant.

Appearances

M. BULAMA ESQ.,For Appellant

AND

Y.A.H. RUBA (HON. ATTORNEY GENERAL JIGAWA STATE) AND M.A.
LAMIN ESQ., (ASSISTANT CHIEF STATE COUNSEL) JIGAWA STATE
MINISTRY OF JUSTICEFor Respondent