ABDULLAHI YUSUF v. THE STATE (2015)

ABDULLAHI YUSUF v. THE STATE

(2015)LCN/7874(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of May, 2015

CA/K/376/C/2014

RATIO

CRIMINAL LAW: THE OFFENCE OF CULPABLE HOMICIDE; THE INGREDIENTS THE PROSECUTION MUST PROVE FOR AN ACCUSED PERSON TO BE CONVICTED OF THE OFFENCE OF CULPABLE HOMICIDE

The law is settled that for an accused person to be convicted of the offence of culpable homicide punishable with death, the prosecution must prove the following ingredients of the offence to wit; i. That a human being was killed ii. That the accused caused the death of the Deceased iii. That the act of the accused that caused the death of the deceased and was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act. These ingredients must co-exist before a conviction can be secured particularly as failure to establish any ingredients will result in an acquittal. See; the case TUNDE ADAVA V. STATE (2007) NCC 2 PG. 191 AT 205-206. per. ABDU ABOKI, J.C.A.

PRACTICE AND PROCEDURE: DUTY TO CALL WITNESS; WHETHER THE PROSECUTION IS BOUND TO CALL EVERY WITNESS TO TESTIFY

Generally the prosecution is not bound to call every witness to testify, all that it requires are the testimonies of witnesses who are necessary to prove its case beyond reasonable doubt. See ODUNEYI v. STATE (2001) 2 NWLR pt. 697 AT 311; OKPULOR v. STATE (1990) 7 NWLR (PT 164) AT 581. per. ABDU ABOKI, J.C.A.

EVIDENCE: CONTRADICTIONS IN EVIDENCE; WHETHER CONTRADICTION OR INCONSISTENCIES DEPEND ON THE CIRCUMSTANCES OF EACH CASE

It is trite law that contradiction or inconsistencies depend on the circumstances of each case. It is only contradictions in the evidence of the witnesses for the prosecution which are substantial and fundamental to the main issue before the Court and create doubt in the mind of the trial Court that entitled an accused person benefit there from. See; MUSA V. STATE (SUPRA). per. ABDU ABOKI, J.C.A.

EVIDENCE: STANDARD OF PROOF; THE MEANING OF THE EXPRESSION PROOF BEYOND REASONABLE DOUBT

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

ABDULLAHI YUSUF – Appellant(s)

AND

THE STATE – Respondent(s)

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Justice, Katsina State delivered on the 12th day of May, 2014, by I. B Ahmed J.

Whereby the Appellant and two other accused persons were convicted and sentence to death for the offence of culpable homicide punishable with death.

The lone head of charge against the Appellant and two other accused persons upon which they were convicted and sentence is adumbrated as follows;

THE CHARGED:

“That you (1) ABDULLAHI ALIYU (2) ABDULMUMINI BALA and (3) ABDULLAHI YUSUF all of Shamushalle village, via Birnin Magaji, Zamfara State, on or about the 22nd day of September, 2011 at about 001 hours while in company of others now at large, at Rugu forest, Safana Local Government Area of Katsina State, committed culpable homicide punishable with death in that you caused the death of Alh. Garba bello by doing an act to wit: Jointly beating and cutting him on the head and all over his body with sticks and axe, causing him injuries leading to his death, an act which you did with the knowledge that

death would be the probable consequence of your act and thereby committed an offence punishable under Section 221 of the Penal Code.”

To prove its case against the accused persons the prosecution called 7 witnesses and tendered the confessional statements of the accused persons. The Appellant testified in his defence.

In convicting the Appellant, the trial Court in its judgment held, inter alia as follows;

“…With these pieces of evidence here fore I am left in no doubt that the prosecution has established a prima facie case against the accused persons for the offence of culpable homicide punishable with death under Section 221 of the penal code. The accused persons have equally no defence to the act hey collectively committed.

Form the analysis of the testimony of all the prosecution witnesses, his Court is left in no doubt that the ingredients of the offence of culpable homicide punishable with death have been fully proved beyond reasonable doubt against all the three accused persons who have equally no defence to their action and have failed to avail themselves to any of the mitigating circumstances provided under Section 222 of the penal

code. I accordingly find them guilty as charged and convict them of the offence under Section 221 of the Penal Code.”

The trial Court sentence the Appellant and the two other accused persons to death and ordered that they be hanged by neck until they are dead.

Dissatisfied with the judgment of the trial Court, the Appellant who is now a prisoner at Central Prison Katsina by leave of this Court filed a notice of appeal dated 21st July, 2014 containing 6 grounds of appeal.

Briefs of argument were filed and exchanged by counsel to the parties in accordance with the rules of practice and procedure of this Court.

The Appellant’s brief of argument prepared by J.J Usman Esq. was dated and filed on 9th September, 2014. Learned counsel for the Appellant adopted the said brief as the Appellant’s argument in this appeal and urged the Court to allow this appeal, set aside the Judgment of the lower Court and discharge the Appellant.

The Respondent’s brief of argument prepared by S.B. Umar (Mrs) Esq. was dated 10/10/2014 and file on the same date. Learned counsel to the Respondent adopted the said brief as the Respondent’s argument in this appeal

and urged the Court to affirm the conviction of the trial Court.

The Appellant in his brief of argument formulated 3 issues from the 6 grounds of appeal contained in his notice of appeal. The said issues are adumbrated as follows;

?ISSUE ONE.

Whether the learned trial judge was right when his lordship held that the prosecution has proved its case beyond reasonable doubt against the Appellant. (Tied to grounds 1, 2, 3 and 6).

ISSUE TWO.

Whether the learned trial judge was right when his lordship held that failure of the prosecution to tender the confessional statement of the Appellant is not fatal to the prosecution’s case (Tied to Ground 4)

ISSUE THREE

Whether the learned trial judge was right when his lordship held that the Appellant actually intended to cause the deceased death thereby convicted the Appellant for the offence of culpable homicide punishable with death and sentenced him to death.

(Tied to Ground 5)”

The Respondent adopted the 3 issues for determination formulated by the Appellant as its issues for determination in this appeal.

?I also

adopt same for the determination of this appeal.

Issues one and three were argued together by both parties in their briefs of argument. I will consider the two issues together in the determination of this appeal.

ISSUE ONE AND THREE

Whether the learned trial judge was right when his lordship held that the prosecution has proved its case beyond reasonable doubt against the Appellant.

AND

Learned Appellant counsel in the Appellant’s brief of argument, submitted that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty and the burden of proof is on the prosecution who must prove its case beyond reasonable doubt. The duty to rebut the presumption of innocence is on the prosecution, and this burden never shifts. He cited in support Section 35 (5) of the Constitution of the Federal Republic of

Nigeria 1999 (as amended) and referred the Court to the cases of;

OKORO V. STATE (1988) NWLR (PT.94) 255 AT 267.

OLUWU V. NIGERIAN NAVY (2007) ALL FWLR (PT.350) PG. 1278 AT 1308-1309.

WILLIAMS V. STATE (1992) NWLR (PT.261) PG 515 AT 521.

He maintained that there is no burden placed on the Appellant, the burden is on the prosecution. He cited in support Section 139 of the Evidence Act and the cases of;

ALABI V. STATE (1993) 7 NWLR (PT.307) AT 511.

SOLOLA V. STATE (2005) 5 SC (PT. 1) AT 135.

BAKARE V. STATE (1987) 3 SC PG. 1

ARUNA V. STATE (1990) NWLR (PT.155) PG.125 AT 137.

He contended that the offence of culpable homicide punishable with death, being a capital offence requires a high degree of proof. He cited in support the case of;

IKEM V. STATE (1985) 1 NWLR (PT.2) AT 378.

Learned counsel argued that in the instant case the prosecution has a hurdle of proving conjunctively three elements of the offence to sustain the conviction or else the accused should be discharged. He cited in support the case of; ALEWO ABOGEDE V. THE STATE (1996) 6 NWLR (PT. 448) PG.270 AT 276-277.

He maintained that, in the

instant case, although there is no medical evidence to establish the death of the deceased, and by exhibit 1A – 1C and the evidence of PW2 and PW5 established the death of the deceased, but that there is no reliable evidence to show that it was the-act or omission of the Appellant that caused the death of the deceased.

He submitted that the failure of the alleged eye witnesses PW2 and PW5 to report to the police and mention the name of the Appellant to the police at the earliest opportunity is fatal to the prosecution’s case. He cited in support the cases of;

ABUDU V. STATE (1985) 5 NWLR (PT. 1) 55 AT 58-59,

EBRI V. STATE (2004) 11 NWLR (PT.885) PG 589 AT 610.

UDEH V. STATE (2001) FWLR (PT.77) PG.1032 AT 1071.

ANI V. STATE (2009) 16 NWLR (PT.1168) PG 443 AT 455.

He maintained that even the names of the attackers given by PW2 and PW5 in the open Court when being led in evidence in chief, does not include the name of the Appellant. He referred the Court to the evidence of PW2 at page 21 lines 10-19 and that of PW5 at pages 30-31 of the printed record.

?Learned counsel insisted that it is settled law that where an accused person

denies the knowledge or existence of an incidence, then the way and manner the matter was reported to the police becomes material and if the matter is not established the accused person is entitled to be discharge and acquitted. He referred the Court to the cases of;

DAGAYYA V. STATE (2006) 7 NWLR (PT.980) AT 637.

UDOSEN v. THE STATE (2007) 4 NWLR (PT.1023) AT 125.

He argued that in the instant case, PW1 in his evidence at page 12 of the record of appeal stated that DCO Mr. Yusuf Muazu (ASP) informed him that he received a phone call from the representative of the District Head of Zakka by name Alhaji Naiya that PW2 told him that his father was killed, BUT neither the DCO Mr. Yusuf Muazu (ASP) nor his informant Alhaji Naiya were called to testify as a witness.

He submitted that, although the prosecution does not need to call any number of witnesses to establish his case, but it is however the law that failure to call a vital witness as in the instant case is fatal to its case.

He cited in support the case of; OPAYEMI v. STATE (1985) 2 NWLR (PT.5) PG.101 AT 108-109.

He argued further that from the cross examination of PW5 two things are

clear, these are;

1. The PW5 had sight problem which made it impossible to identify the attackers of the deceased.

2. That PW5 did not see or identify the said attackers but it was PW2 who informed him that he (PW2) identified the attackers.

He submitted that the evidence of PW5 amount to hearsay and ought to be discountenance and it also contradicts the evidence of PW2 who said that he and PW5 identified the attackers.

Learned counsel contended that the arraignment and conviction of the Appellant in the instant case was based on mistaken identity. He referred the Court to the Appellant’s cross examination at page 58-59 particularly page 59 lines 3-6 of the printed record and the cases of; IKARIA V. STATE (2013) ALL FWLR (PT. 671) PG 1463 AT 171-173

ALABI V. STATE (1993) 7 NWLR (PT.307) 511 T 537.

He submitted that an impartial view of the evidence before the trial Court certainly introduced some doubt in the Appellant’s identification, the benefit of which the trial Court denied the Appellant. He cited in support the cases of;

BOZIN V. STATE (1985) 2 NSCC 1087 AT 1091.

BASHAYA V. STATE (1998) 4 SCMJ 202.

CHUKWU V. STATE

(1996) 7 NWLR (PT.63) AT 686.

He insisted that the prosecution did not prove its case against the Appellant in any way and that the trial Court was wrong to have convicted the Appellant.

Learned Appellant’s counsel contended that the Appellant’s evidence was not demolished, contradicted or even shaken under cross examination and that the trial Court was bound to believe same.

He submitted that where the prosecution has not establish a case against the accused person, the later is not obliged to give any evidence in his defence and is entitled to an acquittal. He cited in support the case of; ANI v. STATE SUPRA AT 457-458.

The Court was urged to resolve this issue in favour of the Appellant.

Learned Respondent’ counsel in his response had submitted that the Respondent conceded the authorities cited and relied upon by the Appellant in Paragraph 4.1 to 4.5 of his brief of argument, that a person charged with criminal offence is presumed innocent until he is proved guilty by the prosecution it is also conceded that the burden of proving the guilt of an accused beyond reasonable doubt is on the prosecution and never shifts.

He maintained however, that it is also the position of the law that once the prosecution has discharged its burden, it becomes the duty of the accused to rebut that presumption that he committed the offence. He referred the Court to the cases of;

ALI V. STATE (2012) 7 NWLR (PT.1299) PG.209 AT 237.

JUA V. STATE (2010) 4 NWLR (PT.1154) PG.217 AT 257.

He submitted that the offence with which the Appellant was charged and convicted is culpable homicide punishable with death and the ingredients of the offence have been stated in the case of; ALI v. STATE (SUPRA).

He maintained that the Respondent through the evidence of PW2 and PW5 proved the ingredients of the offence beyond reasonable doubt against the Appellant. He contended that the testimonies of these witnesses were never contradicted or challenged under cross-examination and the trial Court will fail in its duty if it refuses or neglect to convict on the evidence. It has been argued that a single credible witness can prove a case beyond reasonable doubt. He cited in support the cases of;

ADA V. STATE (2008) 13 NWLR (PT.1103) PG.149 AT 166.

MAGAJI V. NIGERIAN ARMY (2008) 8 NWLR

(PT.1089) PG 338 AT 393.

AKPA V. STATE (2008) 14 NWLR (PT.1106) pg.72 AT 95.

On the contention of the Appellant that there is no cogent or reliable evidence to show that it was the act or omission of the Appellant that caused the death of the deceased and that pw2 and pw5 did not report the matter to the police or mention the name of the Appellant at the earliest possible time. Learned counsel submitted that the testimony of pw2 and pw5 suffice to rebut the Appellant’s contention and that the witnesses reported the incident and mention the name of the Appellant.

He submitted that it is the duty of the Court to accept and act on the evidence of identification of the accused. He cited in support the case of;

ILODIGWE v. STATE (2012) 18 NWLR (PT.1331) Pg 1 AT 41 and urged the Court to hold that the Appellant was identified by the pw2 and pw5 at the earliest opportunity.

Learned Counsel maintained that the cases of ABUDU v. STATE (SUPRA), EBIRI v. STATE (SUPRA) and UDEH V. STATE (SUPRA) cited and relied upon by the Appellant are not on all fours with the instant case, because in the instant case the accused persons were identified by

the witnesses and it is a misconception to state that none of the witnesses reported the matter to the police. He referred the Court to the evidence of pw2 and pw5 at pages 21 to 22 of the printed record.

On the Appellant’s contention that the names of the Appellant and others mentioned by PW2 and PW5 in their evidence are different from those on the charge sheet, learned counsel submitted that the names mentioned by the witnesses are the Fulani (alias) names of the Appellant and others while the names on the charge sheet are their real names and the Appellant never contested or denied the name he was referred to by the witnesses. Furthermore, PW5 went further to identify the Appellant in Court.

He submitted that it is trite that if a procedure adopted in a trial is consented to by a party, he cannot be heard to complain on appeal that the procedure was irregular. He referred the Court to the case of; AKPA v. STATE (SUPRA) AT 99.

He maintained that the cases of DAGAYYA V. STATE (SUPRA) AND UDOSEN V. STATE (SUPRA) cited by the Appellant are not relevant to the instant case with regard to the manner the case was brought. On the manner the incident

was reported to the police, learned counsel referred the Court to the evidence of pw1, pw2 and pw5 at pages 12-13, 21-22 and 30-31 of the printed record.

He submitted further that failure to call the Divisional Crime Officer (DCO) and the representative of the District Head of Zakka to testify was not fatal to the Respondent’s case and their absence will not affect the decision of the trial Court.

He maintained that it is trite that once persons who can testify to the actual commission of a crime have done so, as in the instant case, it suffices as proved. He referred the Court to the case of; ADESINA V. STATE (2012) 14 NWLR (PT.1312) pg 429 AT 452.

Learned counsel argued that the submissions of the Appellant in Paragraphs 4.21 to 4.24 are misconceived. The fact that pw5 informed the Court under cross examination that it was pw2 that gave the names of the Appellant to the village head is not sufficient to discredit him and the evidence of pw5 did not contradict that of pw2. He urged the Court to so hold.

?On the Appellant’s contention that his arraignment and conviction were based on mistaken identity, learned counsel referred the Court

to the cross examination conducted by the Respondent, where the Appellant was asked whether his father was Yusuf Aliyu and he replied that he was Yusuf Sulaiman. He submitted that the father’s name is Yusuf and that is sufficient enough to show that there was no mistaken identity. He urged the Court to so hold.

He contended further that the argument of the Appellant in cases cited in Paragraphs 4.27 to 4.29 in relation to proper identification of the Appellant is grossly misconceived by the Appellant. He submitted that the arraignment and conviction was not erroneous and it was based on the facts found by the trial Court after evaluating the evidence of the parties.

He urged the Court to so hold.

On the Appellant’s contention that the Respondent has not established a case against the Appellant, learned counsel submitted that it is trite that appeal against the judgment of a trial Court in a criminal case will be dismissed where the following were answered positively;

1. Where the prosecution proved the essential elements of the offence,

2. When the case was proved beyond reasonable doubt, and

3. The evaluation of evidence of the

parties was properly done.

He referred the Court to the case of; OSUAGWU V. STATE (2013) 5 NWLR (PT.1347) PG 360 AT 392 and urged the Court to hold that the above questions are answered positively.

He urged the Court to resolved this issue in favour of the Respondent and discountenance the arguments of the Appellant.

The law is settled that for an accused person to be convicted of the offence of culpable homicide punishable with death, the prosecution must prove the following ingredients of the offence to wit;

i. That a human being was killed

ii. That the accused caused the death of the Deceased

iii. That the act of the accused that caused the death of the deceased and was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.

These ingredients must co-exist before a conviction can be secured particularly as failure to establish any ingredients will result in an acquittal. See; the case TUNDE ADAVA V. STATE (2007) NCC 2 PG. 191 AT 205-206.

Generally the prosecution is not bound to call every witness to testify, all that it requires are the

testimonies of witnesses who are necessary to prove its case beyond reasonable doubt. See ODUNEYI v. STATE (2001) 2 NWLR pt. 697 AT 311;

OKPULOR v. STATE (1990) 7 NWLR (PT 164) AT 581.

In the instant case the Respondent is bound to call a witness whose evidence will settled a vital point in issue one way or the other see; KUREE V. R (1941) 7 WACA 175.

The contention of the Appellant is that there is no cogent evidence to show that it was the act of the Appellant that caused the death of the deceased, and the fact that none of the prosecution’s witness reported the matter to the police is fatal to the prosecution’s case.

It is pertinent here to reproduce part of the evidence of the prosecution’s witnesses as follows;

Pw2 stated in his evidence at page 21 lines 21 to 24 of the printed record thus;

“…..we then reported the incident to the village head of illela who later informed the zakka district head. The district head directed us to the DPO safana police station. Alhaji garba died as a result of the attack…..”

Under cross examination pw2 at page 24 of the printed record said he gave the names of the entire accused persons at

Safana Police Station and he gave his statement to the police which they took in writing.

Also pw5 at page 31 lines 4 to 5 stated as follows;

“…..we then informed the illela village head who referred us to the district head zakka. The district head referred us to DPO Safana….”

Under cross examination pw5 said he mentioned the names of the three accused persons at the Safana police station.

In the instant case the record shows that PW2 and PW5 reported the matter to the police and there is abundant evidence adduced by the Respondent to show that it was the act of the accused persons that caused the death of the deceased.

In the instant case there is no such substantial and fundamental contradiction or inconsistencies in the evidence of PW5 and PW2.

The expression beyond reasonable doubt does not mean proof beyond all shadow of doubt and it is not attained by the number of witnesses fielded by the prosecution, it simply means that the evidence of the prosecution against an accused person must be strong and cogent, leaving no remote possibility which can be dispensed with, it also depend on the quality of the evidence tendered by the prosecution. See also the cases of; AMODU V. THE STATE (2010) 2 NWLR (pt.1177) pg.47 AT 69. ADETOLA V. THE STATE (1992) 4 NWLR (pt.235) PAGE 267; MBENU V. STATE (1988) 3 NWLR (pt.84) PAGE 615. In the instant case the evidence before the trial Court drowned the presumption of innocence of the Appellant and the Court is entitled to convict him. In criminal case, if the evidence adduced by the prosecution is adequate in implicating an accused person as in the instant case, the prosecution would then have succeeded in proving the guilt of the accused beyond reasonable doubt. See the cases of; BAKARE V. STATE (1987) 1 NWLR (PT.52) 579. TANKO V. STATE (2008) 16 NWLR (PT.1114) PG 597 AT 640.

On whole this issue is resolved in favour of the

Respondent.

ISSUE TWO.

“Whether the learned trial judge was right when his lordship held that failure of the prosecution to tender the confessional statement of the Appellant is not fatal to the prosecution’s case?

Learned Appellant counsel argued that both the PW4 and the Appellant were at ad idem when they both said that the Appellant denied the allegation against him in his statement made to the police. The prosecution listed the Appellant’s statement as one of the document to be relied upon during trial, but the statement was not tendered by the prosecution. He submitted that non tendering of the said statement by the prosecution raises the presumption of withholding evidence. He urged the Court to invoke the provision of Section 167 (d) of the Evidence Act 2011 against the prosecution. He cited in support the cases of;

MANDILAS V. KARABERTS (1958) SCNLR 335.

ADEYEMI V. COP (1961) ALL NLR 387.

ABUDU V. STATE (1985) 1 NWLR (PT.1) AT 55.

He argued that if the prosecution had tendered the Appellant’s statement made to the police, the statement would not have been favorable to the Appellant, but the trial Court held that

none tendering of the said statement is not fatal to the prosecution’s case.

He urged the Court to resolve this issue in favor of the Appellant.

On whole he urged the Court to set aside the judgment of the lower Court and discharge the Appellant.

Learned Respondent’s counsel on the other hand submitted that it is normal for an accused person when confronted with a charge to deny same in his defence. He contended that the prosecution is not bound to tender all the exhibits stated, once credible evidence is led as in the instant case.

On the Appellant’s contention of withholding evidence by the prosecution, learned counsel submitted that non tendering of the Appellant’s statement will not in any way be favorable to the Appellant since he had already stated in his evidence in chief that he denied the allegation. More so, the Respondent had proved its case through the eye witnesses’ account.

He submitted that it is trite that a case of this nature can be proved by either testimony of eye witness to the crime or by positive, compelling and unequivocal circumstantial evidence or by confessional statement. He referred the Court to the case

of; PATRICK V. STATE (2013) 18 NWLR (PT.1385) PG 163 AT 183.

He insisted that the none tendering of the said statement was not fatal to the case of the prosecution and the prosecution did not withhold evidence as contended by the Appellant.

Learned Counsel submitted further that it is settled that presumption envisaged by Section 149 (d) of the Evidence Act 2011, relates only to non tendering of vital evidence. He referred the Court to the case of; IGIRI V. STATE (2012) 16 NWLR (PT.1377) PG 522 AT 555. He urged the Court to hold that the Respondent did not withhold evidence and to resolve this issue in favour of the Respondent.

He finally urged the Court to affirm the conviction of the trial Court.

The contention of the Appellant is that Section 148 (d) be applied against the Respondent for not tendering the Appellant’s confessional statement.

I have carefully gone through the record of this appeal it is on record that the Appellant denied the allegation against him in the said confessional statement; PW4 was not cross examined on this fact. Also the Appellant did not show how the said statement would be favorable to him if it was

tendered.

By virtue of Section 149 (d) of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to happened, regard being had to the common course of natural events, human conduct of public and private business, in their relation to the facts of the particular case. The Court may presume that evidence which could be and is not produce would if produce, be unfavorable to the person who withholds it. See; ONAH V. STATE (1985) 3 NWLR (PT. 12) AT 236.

In the instant case the Appellant can apply to Court to compel the Respondent to produce his statement but he did not take that step, and no reason was adduced for his failure to do so at the trial Court. In the circumstance of the present case, the none production of the Appellant statement cannot be resolved against the Respondent.

I have earlier said in this judgment that the prosecution is not bound to call every witness to testify; all that is required of it is to present the testimonies of witnesses who are necessary to prove its case beyond reasonable doubt. See ODUNEYI v. STATE (SUPRA).

?It is trite law that the Court cannot give any weight to any

document not before it, because such document is not evidence at all. See; CHIEGBU V. COP (2010) NCC 5 PG 376 AT 387.

This issue is resolve in favour of the Respondent.

On whole there is no merit in this appeal and it is hereby dismissed.

The conviction and sentence passed by the trial Court is hereby affirmed.

UWANI MUSA ABBA AJI, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, Abdu Aboki, JCA, just delivered.

I agree entirely with the reasoning and conclusions arrived at by my learned brother that the appeal is devoid of any merit and it is also dismissed by me.

The judgment of the lower Court delivered on the 12th May 2014 sentencing the Appellant to death is hereby affirmed.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Abdu Aboki, ICA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree that the appeal lacks merit and must be dismissed. I hereby dismiss the appeal and affirm the

judgment of the High Court of Katsina State in Charge No KTH/DM/3C/2012 delivered by Honorable Justice I. B. Ahmed on the 12th of May, 2014 and the sentence passed on the Appellant therein.

Appearances:

J.J Uman, Esq. appearing with him, Kalu Paul, Esq.For Appellant(s)

S.B Umar, Esq. (DPP) appearing with him, A. Umar, Esq., (CSC), Halima Lawal, Esq., (ACSC), Aminu Garba, Esq., (ACSC), Abu Umar, Esq. (SSC) and N. Galadima, Esq. (SC)For Respondent(s)

Appearances

J.J Uman, Esq. appearing with him, Kalu Paul, Esq.For Appellant

AND

S.B Umar, Esq. (DPP) appearing with him, A. Umar, Esq., (CSC), Halima Lawal, Esq., (ACSC), Aminu Garba, Esq., (ACSC), Abu Umar, Esq. (SSC) and N. Galadima, Esq. (SC)For Respondent

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