MOHD BOYI BUBA v. THE STATE (2016)

MOHD BOYI BUBA v. THE STATE

(2016)LCN/8100(CA)

In The Court of Appeal of Nigeria

On Monday, the 11th day of January, 2016

CA/K/14/C/2014

RATIO

EVIDENCE: ONUS OF PROOF; WHICH OF THE PARTIES HAS THE ONUS OF PROOF IN CRIMINAL CASES

The position of our law is that in criminal cases, it is the prosecution that has the onus of proving the guilt of the accused person and except in recognised instances the accused person does not bear the onus of establishing his innocence. See MBANG v. STATE (2012) Vol. 6 ? 7 MJSC (Pt.IV) 119; IGRI V. STATE (2012) VOL 6 ? 7 MJSC (PT.III) 107; YONGO v. COP (1992) 4 SCNJ 113; ARUNA v. STATE (1990) 6 NWLR (Pt.155) 125. per. ISAIAH OLUFEMI AKEJU, J.C.A.

CRIMINAL LAW: ALLEGATION OF CONSPIRACY; WHAT THE PROSECUTION MUST ESTABLISH TO SUCCEED IN AN ALLEGATION OF CONSPIRACY

Now for the prosecution to succeed in an allegation of conspiracy, it has to be firmly established that there was an agreement between the accused persons to carry out an illegal act or to carry out a lawful act in an unlawful manner, as it may not always be easy to prove the agreement, it is permissible for Court to infer or presume the existence of conspiracy from available evidence. See DABOH V. THE STATE (1977) 5 SC 122; OMOTOLA V. STATE (2009) 7 NWLR (PT.1139) 148; MAJEKODUNMI V. THE QUEEN 14 WACA 64. per. ISAIAH OLUFEMI AKEJU, J.C.A.

CRIMINAL LAW: CULPABLE HOMICIDE; WHAT THE PROSECUTION HAS TO ESTABLISH IN AN ALLEGATION OF CULPABLE HOMICIDE

Also in an allegation of culpable homicide punishable with death, the prosecution has to establish by credible evidence, the following ingredients conjunctively;
1. That the deceased had died.
2. That the death of the deceased resulted from the act of the accused person.
3. That the act or omission of accused that led to the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. See USMAN V. THE STATE (2013) VOL. 5 – 7 MJSC (Pt.IV) 1. per. ISAIAH OLUFEMI AKEJU, J.C.A.

EVIDENCE: EVIDENCE THE PROSECUTION CAN USE TO ESTABLISH THE GUILT OF AN ACCUSED PERSON AND WHEN CAN CIRCUMSTANTIAL EVIDENCE LEAD TO CONVICTION

There is no doubt that the law gives the prosecution the liberty to establish the guilt of an accused person by one or the combination of the following;
1. Evidence of eye witness to the crime,
2. Circumstantial evidence,
3. Confessional statement.
See ADEKOYA V. THE STATE (2012) VOL. 3 MJSC (Pt.II) 77. On circumstantial evidence which the Learned trial judge relied upon in convicting the appellant, it is the law that for circumstantial evidence to lead to conviction, such evidence must be cogent, concrete and irresistibly point to the accused person as the only person who could have committed the offence alleged. Such evidence must also leave no room for speculation or doubts that some persons other than the accused might have committed the offence. See YAKUBU V. THE STATE (2014) MJSC VOL. 2 (Pt.111) 1. per. ISAIAH OLUFEMI AKEJU, J.C.A.

EVIDENCE: STANDARD OF PROOF; WHAT PROOF BEYOND REASONABLE DOUBT ENTAILS

Proof beyond reasonable doubt entails the establishment of the guilt of the accused person with compelling and conclusive evidence. See the case of Afolaju v State (2010) 16 NWLR Part 1220 P 584 at 609 – 610 Para F – A per I. T. Muhammad JSC and Fabian Nwaturuocha v State (2011) 6 NWLR Part 1242 Page 170 at 193 Para D – E per Rhodes-Vivour JSC. Per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. per. ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

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

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

MOHD BOYI BUBA Appellant(s)

AND

THE STATE Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A.(Delivering the Leading Judgment):
At the High Court of Justice of Kano State, Holden at Kano before Hon Justice Ibrahim Musa Karaye the Appellant along with one Alhaji Bello Mohammed were, in charge No.K/64C/2011 dated 6th day of April, 2011 charged for the offences of Conspiracy and Culpable Homicide punishable with death under Sections 97 and 221(b) of the Penal Code Cap. 105 Laws of Kano State.
1st Charge
That you Alh. Bello Mohd and Mohd Boyi Buba on or about the 20th September, 2010 at about 0900 hrs at Chirim Village Bunkure LGA Kano within the Rano Judicial Division commit an illegal act, to wit; you conspired together and beat one Nuhu Uba Makeri of Chirim Village, Bunkure LGA Kano and that you thereby committed an offence punishable under Section 97 of the Penal Code Laws of Kano State 1991
?2nd Charge
That you Alh. Bello Mohd and Mohd Boyi Buba on or about the 20th September, 2010 at about 0900 hrs at Chirim Village Bunkure LGA Kano within the Rano Judicial Division did commit Culpable Homicide punishable with death in that you caused the death of Nuhu uba Makeri by

doing an act you used your stick and beat him to death with the intention of causing his death thereby committed an offence punishable under Section 221 of the Penal Code Laws of Kano State 1991.

The Appellant pleaded not guilty, whereupon the prosecution now Respondent called five witnesses who testified as PW1, PW2, PW3, PW4 and PW5 and tendered Exhibits C and C1 and after the prosecution closed its case the Appellant filled a written address on a no case submission which was over ruled by the Court. Thereafter the Appellant alone testified in his own defence as DW2 and after taking the addresses of the two learned counsel for the parties the learned trial judge, Hon. Justice Ibrahim Musa Karaye delivered the judgment of that Court on 24th September, 2013. The learned judge convicted the Appellant for the offence of Culpable Homicide punishable with death and sentenced him to death by hanging.

Dissatisfied with the conviction and sentence by the High Court of Kano State now called the trial Court, the Appellant commenced the instant appeal by the Notice of Appeal dated 9th December, 2013 with two grounds of appeal which was amended by the Amended

Notice of Appeal filed with 5 grounds of appeal and subsequently the Appellant’s Brief of Argument settled by MUSIBAU ADETUNBI, ESQ of Counsel, was deemed filed on 20/11/14 while the Respondent’s Brief of Argument was settled by SHUAIBU SULE ESQ (Director Civil Litigation Kano State Ministry of Justice), and deemed filed on 27/5/15. The respective Briefs were adopted by the learned counsel for the parties at the hearing of the appeal, and placing reliance thereon. MUSIBAU ADETUNBI ESQ for the appellant urged that the appeal be allowed while SHUAIBU SULE ESQ. for respondent prayed that the appeal be dismissed.
According to the Appellant, the issues for determination are:
1. Whether from a microscopic view of the happenings at the Honourable Trial Court, with specific reference to non-calling of the available witnesses who could give direct evidence of the cause of the death of the deceased, could it be rightly said that the prosecution has discharged the hallowed and statutory duty of proving the guilt of the appellant beyond reasonable doubt which could deflate the presumption of innocence in favour of the appellant
2. Considering the want of

evidence showing that Mohd Boyi Buba is one and the same person with Mohammed Garba, can the honorable trial Court convict the appellant herein with the confessional statement authored by Mohammed Garba when same was not adopted by the appellant?

The learned Counsel for the Respondent adopted the appellants’ issue but reformulated the first issue thus;
Whether the prosecution has proved beyond reasonable doubt the essential ingredients of the offence with which the appellant was charged before the trial Court.
?
I will adopt the two issues by the appellant as adopted (issues 2), or reformulated (issue 1) by the Respondent as I find same to be more direct and quite straight forward.
The Learned Appellant’s Counsel arguing his issues, submitted that in a charge of Culpable Homicide punishable with death, the prosecution has the sacred and statutory duty of conjunctively establishing the following ingredients.
1. That the deceased has died,
2. That the death was caused by the appellant,
3. That the appellant had intention of causing the death of the deceased or to cause him grievous bodily injury and cited the cases of JUA VS.

STATE (2010) 2 SCM 68; AHMED v. STATE (2001) 18 NWLR (PT 746) 622 AT 642 PARA B. He added that the prosecution In discharging this responsibility can either rely on direct evidence or circumstantial evidence, the presence of direct evidence which could either be oral testimony or documentary in form of confessional statement makes the usage of the circumstantial?evidence worthless or needless.

Learned Counsel to the Appellant argued that the availability of direct evidence relegates the usefulness of circumstantial evidence into zero point. Hence, circumstantial evidence will only take centre stage in our criminal trial where direct evidence is conspicuously unavailable. He added that in order to establish the above stated ingredients of offence of Culpable Homicide punishable with death, the sequence of proving same in the order of enquiring must be clearly understood. This is so, in order to avert the likelihood of misdirection of law and cited the case of AHMED vs. STATE (SUPRA) AT 641-642 H-D.

?Learned Appellant’s Counsel submitted that to establish what caused the death of the deceased herein, the prosecution called five witnesses and

tendered Exhibits C and C1 with aim of showing the causal connection between the act of the appellant herein and the biological cause of death of the deceased. He added that the testimonies of the prosecution witnesses on the first ingredient i.e. that the deceased is dead shows clearly that one Nuhu Uba is late and the prosecution has successfully established this ingredient, but it remains whether the prosecution was able to prove what caused the death of the said Nuhu Uba or whether it was as a result of the direct or indirect commission or omission by the appellant.

?Learned Counsel submitted that the above questions are the germane questions that if determined in the affirmative, the prosecution has established the cause of the death of Nuhu Uba and that it was as a result of action or inaction of the appellant, then the sentence and conviction of the appellant will stand. If however, these questions are answered in the negative then the prosecution has failed in the discharge of his sacred and statutory duty of proving the guilt of the appellant beyond reasonable doubt, hence, the appellant is entitled to discharge and acquittal. He added that it is

of great use to show that the investigation by the prosecution revealed that there is direct or positive evidence which could be used in proving this charge against the appellant and referred the Court to the testimony of PW1 at page 9 lines 11 – 25 and line 1 of page 10 of the record and submitted that the understanding of these pieces of evidence are as follows:
1. That on the 24th day of September, 2013, a Fulani man was at the police state to unveil those that went for grazing on the date the deceased got missing.
2. The police invited the parents of those that went for grazing to the station.
3. Three of the children of the invitees confessed being at the farmland for grazing followed them to zumbur village.
4. The deceased alongside the Fulani’s and their cows crossed zumbur stream together.
5. It is after the crossing of zumbur stream that Boyi (Appellant) and Alh. Bello stopped at the stream warning the deceased that he should not come close to them which he refused.
6. The deceased having moved closer to where the duo of Alh. Bello and Boyi (Appellant) were standing; the two of them used their stick to hit the

deceased.
7. It was sequel to this revelation that the police swung to action and accosted the Appellant and his case-mate in their house.

Learned counsel argued that from the x-ray of PW1 testimony in the open Court, it is overwhelmingly clear that there are three witnesses that can give direct account of what caused the death of the deceased. Also sirs, it is equally settled that one of these three witnesses was just a kilometre away from where the deceased was murdered. He further referred the Court to page B lines 21 – 25 of the Record where PW1 further testified and in similar vein page 18 lines 19 – 21 of the record for the testimony of PW2

?Learned Counsel submitted that certainly and undoubtedly, medical evidence as to the cause of death is direct evidence which will settle what caused the death of the deceased like in the instant case. The prosecution having this kind of arsenal (i.e. evidence) in their armoury jettisoned same in proving the cause of the death of the deceased i.e. Nuhu Uba but opted for circumstantial evidence. He added that from evidence the investigation of the prosecution revealed that there are direct evidence which

could settle the question of what caused the death of the deceased and whether it was as a result of voluntary or involuntary action or inaction of the Appellant which the prosecution deliberately left uncalled and argued that the puzzle that then agitates the mind is whether the prosecution had the luxury of using circumstantial evidence to prove the cause of the death of the deceased when the prosecution voluntarily elected not to call the available direct or positive evidence?.

Learned Appellant’s Counsel cited the decision of the Supreme Court in the case of LORI & ANOR vs. STATE (1980) NSCC 269, at lines 3o – 50 of page 271 where the Court explained the reason for adopting circumstantial at evidence and added that it is unlike the appeal at hand where the investigation of the prosecution revealed the existence of eye witnesses. He referred the Court also to the case of OKOROGBA VS. STATE (1992) 2 NWLR (PT.222) 244; ADEPETU v. STATE (1998) 9 NWLR (Pt.565) 185; IGABELE V. THE STATE (2006) 6 NWLR (Pt.975) 100; AKINMOJU V. STATE (2000) 6 NWLR (Pt.662) 608; DUROWOLE V. STATE (2000) 12 SC (Pt. 1) 1; ADENIJI V. STATE (2001) 13 NWLR (Pt.730) 375; IJIOFOR

V. STATE (2001) 9 NWLR (Pt.718) 371; and EDOEBERE V. STATE (2001) FWLR (Pt.59) 1244, and argued that, it is evidently clear that Courts in Nigeria will only go for circumstantial evidence when positive or direct evidence is not available. In other words, the availability of direct or positive evidence has the effect of murdering the usage of circumstantial evidence.

Learned Appellant’s Counsel submitted that in the appeal at hand, the position of the law that circumstantial evidence will only take centre stage in the absence of direct or positive evidence is equally realized by the learned trial judge and referred to page 149 lines 16 – 25 and page 150 lines 1-2. He added that to revert to the poser that whether the prosecutions have the luxury of using circumstantial evidence to prove the cause of the death of the deceased when the prosecution voluntarily elected not to call the available direct or positive evidence? On strength of the reviewed cases and other available authorities at disposal, the appellant answer the question in the negative with the following reasons,
1. The testimony of PW1 shows clearly that someone was at the scene of crime

and that person was among the kinsmen of the Appellant who did not only unveil the identity of the Appellant to the prosecution but equally was the Appellant hitting the deceased with stick on his head while the person was standing about one kilometer away from where the deceased was hit with a stick on the head. Hence, there is an eyewitness whose testimony will settle the cause of death of the deceased.
2. The testimonies of PW1 and PW2 are at unison that the deceased was examined by a medical doctor, whom for all purposes and intents, his medical expertise would reveal the cause of death of the deceased and as we are enlightened under the law of evidence and practice and procedure, the testimony of the uncalled medical expert will establish the cause of the death of the deceased as a direct evidence.
It was contended that the deliberate side-tracking of the unnamed witness who saw everything that transpired between the deceased and the Appellant and the failure to call the medical doctor cast serious doubt on the proving of the cause of death of the deceased. He added that the beauty of the testimony of these two persons is that it has the effect

of showing the cause of the death of the deceased without resorting to circumstantial evidence. The reason being that the unnamed kinsman would have stated what he saw and experienced on the day of the ugly incident and the testimony of the medical Doctor, if called, would have shown the cause of the death of the deceased. It was submitted that the testimony of the Medical Doctor is vital to the proving of the cause of death because the deceased did not die immediately upon being nit with stick, rather evidence on record is that the deceased was seen 2 to 3 days after he had been hit with the stick and in the circumstances it is only the Medical Doctor that could have provided answers to questions surrounding the death, and cited the case of AHMED vs. STATE (SUPRA). He added that in the case at hand, the prosecution did not lead evidence of when and how the deceased died.

He further submitted that the failure of the prosecution to call these vital witnesses is akin to the case of STATE v AZEEZ (2008) 14 NWLR (PT 1108) 439 and cited also the following cases of OMOGODO V THE STATE (1981) 5 SC 5; ONAH v THE STATE (1985) 5 NWLR (PT.12) 236, OPAYEMI V STATE

(1985) 2 NWLR (PT.5) 101 AT PARAS C-D, ABDULKADIR GASAU V COMMISSIONER OF POLICE (2968) NMLR 329. Learned Counsel contended that the unnamed kinsman who saw it all and the medical doctor are vital witnesses. More particularly, the confessional statement ascribed to the appellant herein was not in his name. Thus, there is no direct evidence howsoever on record on the nature of the injury and its effect on the deceased if any. Thus the two witnesses are very essential witnesses and urged the Court to so hold. He added that it is the settled principle of the law that circumstantial evidence that will ground conviction should not only be cogent, complete and unequivocal but compelling and lead to the irresistible conclusion that the prisoner and no one else is the murderer, it must leave no ground for reasonable doubt and cited the case of STATE v OGBUBUNGO (2000) 2 NWLR (PT.698) 576 AT 590.

Learned Counsel to the Appellant urged the Court to discountenance the testimony of PW1, who was not consistent in his testimony before the Court, and his testimony is useless on the ground of want of credibility and cited Sowemimo v. State (2004) 11 NWLR (PT 885) 515 at

532 paras d-h. He added that an x-ray of the testimony of PW1 is equally helpless to the case of the prosecution as the circumstantial evidence (i.e. doctrine of last seen) struggled to rely upon is not only less cogent but equally did not point to the guilt of the accused person.

The learned Counsel equally raised issues against the testimony of PW2, PW3 PW4 and further added that the only eye witness that saw the deceased last was PW5, but he did not see the deceased in company of the appellant and his casemate, and stated that the doctrine of last seen is inapplicable in the entire circumstances of this case. To apply the doctrine of last seen to the testimony of PW5 is to stretch the evidence of PW5 in other to look for guilt of the appellant, the law frowns at it and humanity condemns it. Common sense calls for caution. The evidence on record is that the deceased was seen pursing the appellant.

Learned Appellant’s Counsel referred the Court to pages 153-154 of the record where the Learned Trial Judge relied on the doctrine of last seen as propounded by the Apex Court in the case of Igabele V State (2006) 6 NWLR (Pt.975) 100, that the Learned

Trial Judge failed to appreciate that there is a world of difference between the case of Igabele V State (supra) and the current appeal. He added that the use of the circumstantial evidence became inevitable in lgabele’s case when there was no direct evidence of the actual killing, whereas in the appeal at hand, there is direct evidence which was deliberately side-lined by the prosecution.

It was also submitted that the prosecution in this instant appeal was well equipped with the actual cause of death of the deceased but refused to call the evidence as seen in PW1’s testimony.

Learned Counsel submitted that the prosecution in the case of Igabele, (Supra) understood the position of the law that though medical evidence could be dispensed with, if the death of the deceased occurred just immediately after the act or omission of the accused person that caused the death of the deceased. The prosecution in Igabele’s case called medical evidence which shows the cause of the death of the deceased.
However, in the case at hand, the prosecution failed woefully to call medical doctor evidence despite the availability of same. The want of calling the

medical expert to show with certainty the cause of the death of the deceased leaves so many possibilities of what may be responsible for the death of the deceased. This is even so when the testimonies of PW1 and PW5 are nothing to write home about. Learned Appellant’s Counsel added that with the calling of the medical evidence to show the cause of the death of the deceased, the likelihood of any other possibilities of the cause of the deceased’s death suggested in the defence of the appellant in Igabele’s case was knocked off.

On the materiality of a confessional statement, the learned Counsel referred to Section 28 of Evidence Act, 2011 and the case of IGBINOVA v. THE STATE (1981) NSCC 63 and submitted that both Exhibit C and C1 admitted in this case were not authored by appellant but by one MOHHAMMED GARBA as contained in the title of Exhibits C and C1. The appellant herein is MOHD BOYI BUBA. The application to prefer charge against the appellant and his case-mate at page 1 of the record clearly shows this. On the 5th day of June, 2013, during the defense of the appellant he started his name as MOHD BOYI BUBA at page 34 of the record. He contended that

the only evidence from the prosecution on the testimony of the PW1 on this could be found at page 10 at lines 5 – 14 of the record to that effect. He further added that the face of the application to prefer charge is very clear and lucid on whom the 1st and 2nd accused persons are. To that extent, the testimony of PW1 that “the 1st accused is by name Mohd Buba Alias Boyi” is fallacious, in that, the 1st accused at the trial Court is Alh. Bello Mohd.

Learned Appellant’s Counsel submitted the PW1 or even the prosecution could not randomly arrange or rearrange the name of the 2nd accused (now appellant) contrary to his name as it appears on the application to prefer the change. He cited the cases of ESENOWO v. UKPONG (1999) 6 NWLR (PT.608) 611 AT 617 PARAS E – G 621 PARAS B – D AND FAGBOLA V. TITILAYO PLAST IND LTD (2005) 2 NWLR (PT 909) 1 AT 19 – 20 E – A. He added that the testimony PW1 did not in any way suggest that Mohd Boyi Buba is one and the same with Mohammed Garba who authored Exhibit C and C1, so also, the testimonies of PW2, PW3, PW4 and PW5, and that surprisingly the honorable trial Court in its judgment at page 139 lines 18 to 20 of the record

while reviewing the case before it stated the Exhibit, received in evidence and marked as follows:
“(3) the Hausa and translated English version of the statement of the 2nd accused also dated the 24/9/2010 by name Mohd Garba (Mohd Boyi Buba) Exhibits C and C1?

Learned Appellant’s Counsel submitted that conclusion of joining Mohd Garba and Mohd Boyi Buba is completely that of imagination of the honorable trial Court which finds no basis in evidence before the honorable trail Court. This honorable Court like the Supreme Court had held in a very long line of cases that the conclusion of the Court which is not supported by evidence is perverse and cited the case BRIGHT v STATE (2012) 8 NWLR (PT.13002) 297 and added that having shown that there is no evidence establishing that the appellant is one and the same person with Mohammed that authored Exhibits C and C1, cannot be used as the confessional statement of the appellant herein and referred the Court to the provision of Section 28 of the Evidence Act and the case of IGBINOVA v THE STATE (supra) which make the usage of confessional statement authored by the accused like the appellant herein

against him and not one authored by another person who is not even a party to this matter at all. More so, when appellant did not adopt same.

It was submitted that though the appellant’s objection, to the usage of Exhibits C and C1 was not properly marshalled at the trial Court, page 11 of the record shows clearly that the Exhibits were not admitted without objection. The objection of the appellant at the trial Court was on the ground of no proper identification of the appellant as the author of the said Exhibits. He further submitted that the position of the learned authors of Criminal Trial, Fundamental and Evidentiary Aspects, 4th Edition at page 147 while relying on the India case of Abdulrahman v. Emp, 5 rang 53: 100ic 227: air 1927 pc 44 is very relevant to this case. He urged the Court to expunge Exhibits C and-C1

Learned Appellant’s Counsel submitted that a point that must equally be considered is the conviction of the Appellant by the Honourable Trial Court for the offence of conspiracy to commit Culpable Homicide punishable with death, and referred the Court to authorities on the ingredients and cases thus
1. The agreement to commit

an offence, an illegal act, is between two or three persons;
2. The said act, apart from the agreement itself, must expressed in furtherance of the agreement;
KAZA V. STATE (2003) 7 NWLR (PT.1085) 125 AT 154 C-E; CHIANUGO v. STATE (2002) 2 NWLR (PT 750) 225; OBIAKOR v. STATE (2002) 10 NWLR (PT 776) 612; UPAHAR v. STATE (2003) 6 NWLR (PT.816) 23; IDI v. YAU (2001) 10 NWLR (PT.722) 640. He added that what is certain is that before any suspect could be convicted for the offence of conspiracy there must be an agreement between two or more people, but from the fact presented by the prosecution, the apparent agreement between the appellant and his alleged casemate was to take their cows for grazing and not to commit any crime. Equally, from the facts of the case as presented by the prosecution when cows grazing on the farm of the deceased happened instead of the appellant and his alleged casemate to wait and fight they took to their heels and that was the last thing seen by all the witnesses. All of the prosecution witnesses did not witness the act of killing the deceased either by the appellant or the alleged casemate.

?The learned Counsel

submitted that the law is well pronounced that agreement in an offence of conspiracy is based on utmost secrecy which could only be inferred from the act done by the accused person. This case shows that there is no positive evidence linking the appellant to the cause of the death of the deceased. The only piece of evidence with which inference of conspiracy could be drawn is the confessional statement authored by one Muhammed Garba (i.e. Exhibits C and C1) and not the appellant. The inability of the prosecution to establish any nexus between the appellant and Exhibits C and C1 renders the contents of the said Exhibits C and C1 inoperative against the appellant and finally submitted that there is no evidence howsoever establishing the offence of conspiracy against the appellant and urged this Court to so hold.

?Learned Respondent’s Counsel in his response, submitted that the appellant was rightly convicted based on circumstantial evidence which was not only cogent, complete and unequivocal but compelling which led to the irresistible conclusion that the appellant and the co-accused were the ones that killed the deceased and that the circumstantial evidence

upon which the appellant was convicted left no ground for reasonable doubt. He added that circumstantial evidence is as good as, some time better than any other sort of evidence and in the instant case, the trial Court well and properly acted upon a number of circumstances which make a complete and unbroken chain of evidence. He submitted that there are valid reasons for accepting circumstantial evidence to prove the guilt of the appellant and that the unbroken chain of events which is true, constant stable and watertight cannot lie to prove the guilt of the appellant. He further submitted that the circumstantial evidence in the instant case is overwhelming and there is nothing offered by the appellant to rebut his guilt on a preponderance of probabilities except mere denial and cited the case of PETER V. STATE (1997) 12 NWLR (PT.513) 1.

?It is the learned Respondent’s Counsel submission that there are valid reasons for accepting circumstantial evidence to prove the guilt of the appellant, 1st it is not in all cases that direct evidence is available as in the instant case. Secondly, a witness may lie but circumstances will never lie, they remain true,

constant and stable and cited the case of IKWUNNE v. STATE (2005) 5 NWLR (PT.658) 550. He added that in the instant case, there is evidence that the appellant was last seen with the deceased by the evidence of PW4 and PW5. Furthermore, in Exhibit C and C1, the statement of the Appellant, he did not object to their admissibility in evidence. He did not deny the content of the Exhibits or that he never made the statements. The contents therefore remain true and can be used against him and cited the case of MBANGA v. STATE (2010) 7 NWLR (PT.1194) 431.

It was also submitted that the learned Trial Judge made accurate findings at pages 151-152 of the printed Record which pinned down the appellant as one of the persons to be last seen with the deceased. He added that the appellant confessed that he hit the deceased and also confessed beating the deceased with stick on the head by a lake which has water in it and they left him lying down. The body of the deceased was later discovered at a stream, and referred to
Exhibit C at page 135 of the printed records.

?Learned Counsel submitted that in the instant case, the evidence adduced by the respondent concludes

that the appellant/co-accused persons were the ones responsible for the death of the deceased and that the circumstantial evidence adduced by the Prosecution cogently, irresistibly and conclusively points to the appellant and his co-convict as the murderers, to the exclusion of any other person and a Court of law as in the instant case will be entitled to infer from the surrounding circumstances that the appellant committed the offence and was convicted on such evidence he cited the case of KALU v. STATE (1993) 6 NWLR (PT.300) 385 SC AT PAGES 396-398, and added that where strong circumstantial evidence is led against an accused, the Court will not hesitate to draw such a presumption or inference so long as it is cogent and compelling and cited the case of ARICHE v. STATE (1993) 6 NWLR (PT.302) 753 AT 764. According to the learned Counsel, in the instant case, there was no eye witness. The evidence produced by the state only established the doctrine of “last seen”. And the law under the doctrine presumes that the person last seen with the deceased bears full responsibility for his death. He added that where an accused person was the last person to be seen in

the company of the deceased and circumstantial evidence, as in the instant case is overwhelming and leads to no other conclusion; there is no room for acquittal. It is the duty of the accused person to give an explanation relating to how the deceased met his death. In the absence of an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that the accused person killed the deceased and cited the cases of IGABELE v. STATE (2006) 6 NWLR (PT.975) PG. 100; NWAEZE V. STATE (1996) 2 NWLR (PT.428) 1 SC AND EMEKA V. STATE (2001) 14 NWLR (PT.734) 666 SC.

Learned Counsel submitted that the Appellant in Exhibits C and C1 confessed that he took part in beating the deceased on the head with a stick and left him lying on the ground and referred to page 135 of the printed record. He added that on behalf of the Appellant the prosecution has the sacred and statutory duty to establish the ingredient of the alleged offence before the trial Court. He further submitted that PW.2, PW3, PW4 and PW5 in their evidence were able to identify the accused persons as those that had misunderstanding with the deceased. And PW4 and PW5 saw the

deceased following the accused persons. He added that the appellant made a confessional statement at the police station and there was no where during the trial in which the appellant ever denied making the confessional statement Exhibit C to the police. He further added that on the evidence adduced by the prosecution which was unchallenged in?anyway, the doctrine of “last seen” alone, is sufficient enough to ground the conviction of the appellant in this case. It was submitted that from the foregoing, the prosecution has proved its case beyond reasonable doubt as required by law, as Proof beyond reasonable doubt does not conjure proof beyond all shadow of doubt for if it does many guilty persons will go unpunished and cited the case of ALAKE V. STATE (1991) NWLR (PT.205) 567. He added that the law presumes that the person last seen with the deceased bears full responsibility for his death if it turns out that the person last seen with him is dead. It is the duty of the appellant to give an explanation relating to how the deceased met his death, and in the absence of an explanation by the appellant as in the instant case, it will be justified to draw the

necessary inference that the appellant killed the deceased and cited the case of IGABELE v. STATE (SUPRA) and concluded that the prosecution has proved all the essential ingredients of the offence for which the appellant stood trial before the Lower Court.
?
ISSUE NO. II
Considering the want of evidence showing that Muhammed Boyi Buba is one and the same person with Mohammed Garba, can the Honourable Court convict the appellant herein with the confessional statement altered by Mohammed Garba when same was not adopted by the appellant.
Learned Respondent’s Counsel submitted that both Exhibits C and C1 were authored by one Mohammed Garba and not Muhammad Boyi Buba. He added that the Respondent submitted that Mohd. Is a short form of writing Mohammed while Buba or Garba are the commonly accepted nicknames or shortened and affectionate forms of calling anyone named Abubakar by the Hausa/Fulani ethno-linguistic societies. In other words, it is common knowledge in the aforementioned community that the names Buba and Garba are one the same and are interchangeable. Learned Counsel further urged the Court, pursuant to the provisions of

Section 124 (1)(a) of the Evidence Act, 2011 to take judicial notice of the fact that in Hausa land; the names Buba, Garba and Abubakar are one and the same thing and commonly used interchangeably in day-today transactions and urge this honourable Court to hold so. He added that assuming but not conceding that the Court cannot take judicial notice of the interchangeability of the names Buba and Garba under Section 124 (1) of the Evidence Act, 2011, then the Respondent will submit that the prosecution had at the trial adduced evidence outside the contents of Exhibits C and C1 sufficient in law to secure the conviction of the Appellant and learned counsel urged the court to so hold.

?In the effort to establish the

allegations of conspiracy and culpable homicide against the appellant under Sections 97 and 222 of Penal Code respectively the prosecution called five witnesses who testified as PW1 – PW5. The PW1 is CPI Ibrahim Isa, the Police Officer who investigated the case and obtained statements from the accused persons and the statement he allegedly obtained from the appellant he tendered as Exhibit C – C1, the English and Hausa versions. The PW2 Mohd Nuhu, a son of the deceased said the accused persons entered their groundnut and beans farm with their cows and when they started moving away the deceased sent him to call the ward head and by the time he came back with the ward head, they did not meet the accused persons and the deceased, but the deceased was found killed two days thereafter and thrown into water. Police and medical personnel were invited and the body was removed from the water, examined by the doctor before it was buried.

The PW3, PW4 and PW5 also stated that they saw the accused persons passing through their farms and the deceased was searching for them and they (witnesses) directed him. Thus at the end of the prosecution’s case, there was no

eye witness testimony to the alleged killing of the deceased by the two accused persons.

The appellant, Mohd Boyi Buba testified in his defence as the DW2. He denied any involvement In the killing and even said he was not a cattle rearer and had no business grazing cattle. He said he did not know his co-accused before.

?Also in an allegation of culpable homicide punishable with death, the prosecution has to establish by credible evidence, the following ingredients conjunctively;
1. That the deceased had died.
2. That the death of the deceased resulted from the act of the accused person.
3. That the act or omission of accused that led

to the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. See USMAN V. THE STATE (2013) VOL. 5 – 7 MJSC (Pt.IV) 1.

Now from the evidence of the five witnesses for the prosecution in this case, there was no testimony of any beating done by the appellant or any of the two accused persons. The learned trial judge said at page 153 of the record of appeal that “In the instant case, there is no eye witness. The evidence produced by the state/prosecution only establish the doctrine of “last seen”. And the law under the doctrine, presumes that the person last seen with the deceased bears full responsibility for the death”.

On circumstantial evidence which the Learned trial judge relied upon in convicting the appellant, it is the law that for circumstantial evidence to

lead to conviction, such evidence must be cogent, concrete and irresistibly point to the accused person as the only person who could have committed the offence alleged. Such evidence must also leave no room for speculation or doubts that some persons other than the accused might have committed the offence. See YAKUBU V. THE STATE (2014) MJSC VOL. 2 (Pt.111) 1.

?The doctrine of last seen also relied upon by the learned trial judge requires that the person or persons last seen with a deceased person should offer some explanation about the deceased’s death. See OKOKO V. THE STATE (1964) 1 ALL NLR 523; NWAEZE v. THE STATE (1996) 2 SCNJ 47. It is clear and devoid of any doubt that the evidence of the prosecution witnesses does not show that the deceased was last seen with the appellant or the accused persons. What the evidence has rather shown is that, apart from the PW2, the son of the deceased who did not even know the movement of the appellant or that of the deceased, the PW3, PW4 PW5 saw the deceased trying to trace the direction taken by the accused persons which they described to him. None of them emphatically stated that the accused persons and the deceased

were seen together.

On the Exhibits C and C1, the alleged confessional statement of the appellant which the learned judge also relied upon to convict the appellant, it is clear that the learned trial judge himself had found and agreed that it does not contain an admission by the appellant. Please hear him on page 153 of the record; “Agreed there was nowhere in either Exhibit B and B1 and C and C1 where the accused persons admitted or confessed to killing the deceased. However, their admission as to their presence in farm, the dispute between them which led the deceased to follow them…”
What then is a confession under our laws? As clearly defined by Section 28 of the Evidence Act, 2011, a confession is an admission made at a time by a person charged with a crime stating or suggesting the inference that he committed that crime. The allegation against the appellant is the very serious crime of culpable homicide punishable with death and not assault of beating the deceased or even trespass or entry unto the deceased’s farm. On what amounts to a confession, see also SAIDU V. THE STATE (1982) 4 SC (Repr int) 26; NWACHUKWU v. STATE (2007) 17

NWLR (Pt.1062) 31.

This takes me to the second issue that the person that made Exhibits C and C1 is not Mohd Boyi Buba, the appellant, but one Mohammed Garba. This is not a matter for argument or brilliant submission as the respondent’s Counsel has attempted to do in his brief of argument. The submission of Counsel cannot take the position of evidence no matter how brilliant or even forensic it might be. It is clear on the face of the exhibits that the author was Mohammed Garba, and not the appellant.

It is therefore quite correctly submitted by the appellant’s Counsel that while the prosecution was able to prove that the deceased Nuhu Uba had died which is the first ingredient of the alleged culpable homicide under Section 221 of Penal Code, the cause of death as to even if he was hit by a stick has been left to guesses especially as to the type of stick and how lethal the stick was. The second and third ingredients were not proved beyond reasonable doubt. It has been the law that where the evidence adduced by the prosecution is equivocal, a verdict of acquittal is to be returned in favour of the accused. See STATE V. KURA (1975) 2 SC (Reprint) 76.

I hold also that no agreement has been proved or inferable from the evidence of the prosecution witnesses to warrant conviction for conspiracy.
I hold therefore that the Respondent did not establish the guilt of the appellant beyond reasonable doubt. I therefore resolve the two issues against the Respondent and I allow the appeal, in consequence whereof the judgment of the trial High Court of Kano State in case No.K/64c/2011 is set aside, and in its place I enter a verdict of discharge and acquittal in favour of the Appellant.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.:
I have had the privilege of reading before now the lead iudgment delivered by my learned brother, Isaiah Olufemi Akeju, J.C.A. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I do see not the need to add anything to the judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.:
I have had the privilege of reading the Judgment in draft of my learned brother Isaiah O. Akeju J.C.A. I am in agreement that the Respondent in this

case did not establish the guilt of the Appellant beyond reasonable doubt.

This proof is sadly lacking in this case, with the result that the guilt of the Appellant has not been proved as required by law.

I, in agreement with my learned brother, allow the appeal and discharge and acquit the Appellant.

Appearances

Musibau Adetunbi, Esq.For Appellant

AND

Shuaibu Sule, Esq.For Respondent