HASSAN WAKILI v. THE STATE (2016)

HASSAN WAKILI v. THE STATE

(2016)LCN/8218(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of February, 2016

CA/K/458/C/2014

RATIO

EVIDENCE: CONFESSIONAL STATEMENT: CONFESSIONAL STATEMENT; WHETHER THE DENIAL OF CONFESSIONAL STATEMENT AFFECT THE ADMISSIBILITY OF THE CONFESSION IN EVIDENCE

It is trite law that the fact that an accused person denies making a confessional statement or disown it, does not ipso facto, affect the admissibility of the confession in evidence. Whether or not it was made by the accused person is a question of fact to be decided when taken along with other pieces of evidence by the trial Court. As in the instant appeal, where an accused person retracts his confessional statement, the Court is enjoined to look for independent evidence outside what is contained in the retracted statement to establish or prove the offence, however slight the circumstances making it probable that it is true. See Utteh vs. The State (1992) 2 NWLR (pt 223) 527; Nsofor vs. The State (2004) 18 NWLR (Pt 905) 292; Dawa vs. The State (1980) 8-11 SC 236. per. UWANI MUSA ABBA AJI, J.C.A.

EVIDENCE: PRESUMPTION THAT A PERSON INTENDS THE NATURAL CONSEQUENCES OF HIS ACT; ON WHICH OF THE PARTY LAYS THE BURDEN OF REBUTTING THIS PRESUMPTION

The doctrine has long been settled that the law presumes that a person intends the natural consequences of his act though the presumption is however rebuttable. And the burden of rebutting this presumption lies squarely upon the defence. See Ajidehun vs. The State (1991) 1 NWLR (Pt.213) 33 at 44 paras D ? D. The interpretation of the accused intention on the fateful day can be better explained by his confessional statement and the evidence of PW1 which detailed evidence had been stated earlier. By the use of a long curved knife on several-parts of the body is a confirmation that the accused intended the natural consequences of his act. The natural consequence is the death of the deceased. The Supreme Court held in Micheal vs. The State (2008) 9 MJSC 61 at 73 that- “In a charge of culpable homicide, the nature of the weapon used, its weight and size are-in the circumstance of the case essential in determining whether the conviction should be one of culpable homicide punishable with death or not. The Court further held that; “Where the deceased died on the spot or soon after the injury inflicted on an accused person, the accused person will be guilty of causing the death.” per. UWANI MUSA ABBA AJI, J.C.A.

THE DEFENCE OF ALIBI: WHEN IS THE DEFENCE OF ALIBI DESTROYED

It is trite that where there is evidence fixing the accused at the scene of crime like in this case in hand, the defence of alibi is automatically destroyed. See Onuchukwu vs. The State (1998) 4 SCNJ 36 and Sowemimo vs. The State (2004) All FWLR (Pt.208) 951. per. UWANI MUSA ABBA AJI, J.C.A.

JUSTICES

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

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

Between

HASSAN WAKILI – Appellant(s)

AND

THE STATE – Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Jigawa State High Court in Charge No. JDU/29C/2008 delivered by Hon Justice Ubale A. Taura on the 28th day of July 2010 wherein the Appellant was sentenced to death on a charge of culpable homicide.

The Appellant was charged with culpable homicide punishable with death under Section 221 of the Penal Code and arraigned before the State High Court of Jigawa State (hereinafter called the trial Court) on a one count charge as follows:’

“That you, Hassan Wakili ‘M’ of Yalwa Masari village of Guri Local Government Area within Jigawa Judicial division on or about the 3rd day of July 2008 at about 3:00 hours sneaked into the house of one Jummai Sa’id ‘F (now deceased) in Masari Village with along curved knife called ‘Giriyo’ and committed homicide by doing an act to wit: using the said long curved knife and inflicted several cuts to one Jummai Sa’id (now deceased) on several parts of her body including her hand and knee with the knowledge that death will be the probable consequences of your act you thereby committed an offence

punishable under Section 221 (b) of the Code

The Appellant pleaded not guilty to the charge. The facts relied upon by the prosecution were that the Appellant’s wife became ill and in pains, called the name of the deceased (Jummai Sa’?id) as the person responsible for her illness. The Appellant reported the matter to the village head who settled the parties. On 3/07/2008 when the Appellant’s wife became ill again, she still called the name of the deceased person. This angered the Appellant and he took his curved knife (Gario) and went to the deceased house, he inflicted injuries on her and left her in the pool of her blood, this eventually led to her death.

The prosecution called three (3) witnesses in proof of its case and tendered five (5) Exhibits, which were admitted in evidence and marked as Exhibits 1, 2A, 28, 3A and 3B.

The Appellant closed his case after his evidence as DW1. The learned trial Judge in a considered judgment found the Appellant guilty of the offence charged and sentenced the Appellant to death by hanging. Dissatisfied with the decision of the learned trial judge, the Appellant vide an order of Court for

extension of time to appeal granted on the 29/9/2014 appealed against the judgment by filing a notice of

appeal dated 2nd day of October 2014 upon ten grounds of Appeal. The grounds are hereby reproduced.

GROUND 1

The learned trial judge erred in law in convicting and sentencing the accused/Appellant to death by hanging for the offence he was charged when all the ingredients of the offence of culpable homicide have not been proved thereby occasioning miscarriage of justice against the accused/Appellant.

GROUND 2

The learned trial judge erred in law when he held that the prosecution has proved its case against the Appellant when there are material contradictions in the evidence of the prosecution witnesses.

GROUND 3

The learned trial judge erred in law in convicting and sentencing the Appellant for the offence charged when there was a fight between the accused and the deceased.

GROUND 4

The learned trial judge erred in law when he held that the prosecution has proved the three ingredients of the offence of culpable homicide punishable under Section 221(b) of the Penal Code.

GROUND 5

The learned trial judge

erred in law when he failed to consider all the defences raised by the Appellant

GROUND 6

The learned trial judge erred in law in holding that the accused/Appellant confessed kitting the deceased when there is miscarriage of justice against the accused/Appellant

GROUND 7

The learned trial judge erred in law when he held that:

“let me pause to say that if the evidence of a report made to PW1 is to be considered as hearsay evidence than what is the position of a report usually made to Police Officers about the happening of an incident who based on it investigate a case and thereafter testify in Court”.

Thereby occasioning miscarriage of justice against the Appellant

GROUND 8

The learned trial judge erred in law when he held that:

“…I am incline with the submission of the learned prosecution’s counsel and hold that the evidence of PW1 is that of a person who played a vital role after the demised of her (his) sister and is not hearsay evidence.”

GROUND 9

The learned trial judge erred in law in choosing and picking from the admissible and inadmissible evidence of PW1 in convicting 2nd sentencing the

accused/Appellant for the offence charged.

GROUND 10

The decision of the learned trial judge is unreasonable unwarranted and cannot be supported having regard to weight of evidence before the trial Court.

In line with the rules and practice of this Court, the Appellant filed and served the Appellant’s brief of argument which was settled by Sani Hussaini Garun Gabbas Esq dated 27th day of February 2015 and filed on the same day but deemed properly filed on 28th September 2015. In response, the Respondent filed his brief of argument dated 5th day of October, 2015 and filed on the same day settled by Musa M. Imam Esq. Asst. Chief State Counsel, Ministry of Justice, Jigawa State.

?The Appellant formulated six (6) issues for the determination of this appeal as follows:

1. “Whether the learned trial judge wrongly appraised the evidence on the evidence on the record and thereby occasioned a miscarriage of justice against the appealed (ground 1).

2. Whether the evidence of the PW1’s testimony can be held as admissible, hence able to ground a conviction against the accused being that such evidence is hearsay evidence.

3. Whether the

learned trial judge erred in law which error occasioned a miscarriage of justice when he relied on the confessional statement of the Appellant and convicted him of the said offence of culpable homicide punishable with death especially when such statement becomes contradictory with his testimony made during the actual trial.

4. Whether the learned trial judge’s failure to properly assess and evaluate all the evidence placed before him thereby arriving at a wrong conclusion and findings.

5. Whether the learned trial judge property reached the conclusion of the accused person?s guilt thereby not occasioning a miscarriage of justice.

6. Whether the case of the prosecution can be considered as proof beyond reasonable doubt thereby grounding a conviction of culpable punishable with death thereby not occasioning a miscarriage of justice (sic).

?In it’s brief, the Respondent formulated a lone issue for determination thus:

1. “Whether the prosecution has proved the guilt of the Appellant beyond reasonable doubt as required by law and whether the learned trial judge was correct to have held that he found the Appellant guilty of culpable

homicide punishable with death.”

On 20th January 2016 when the appeal was heard by this Court, the Appellant’s Counsel was not in Court. The Respondent counsel Musa M. Imam Esq, therefore urged the Court to deem the Appellant’s brief of argument dated and filed 27/2/2015 as having been duly argued. The counsel adopted the Respondent’s brief of argument and urged the Court to dismiss the appeal and affirm the conviction and sentence of the Appellant by the Lower Court.

I have thoroughly studied the issues as presented by both counsel for the determination of this appeal, and I am of the view that the Appellant’s six (6) issues can be subsumed into the lone issue formulated by the Respondent. I will therefore consider this appeal based on the issue formulated by the Respondent thus:-

“whether the prosecution has proved the guilt of the Appellant beyond reasonable doubt as required by law and whether the learned trial judge was correct to have held that he found the Appellant guilty of culpable homicide punishable with death.”

?Learned Counsel for the Appellant submitted on the question of the admissibility of PW1’s evidence, that it is

pertinent to bring to mind the provision of Section 77 of the Evidence Act CAP E14 Laws of the Federation of Nigeria 2011 which provides that oral evidence must in all cases be direct and if that evidence refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact.

Learned Counsel argued that the evidence of PW1 was actually statements he claimed he had” been told by the deceased, this therefore makes his evidence hearsay and inadmissible. He referred us to the case of Judicial Service Commission vs. Omo (1990) 6 NWLR (Pt.154) at 407, However, learned Counsel submitted that there is an exception to the rule against hearsay evidence which is a dying declaration as provided under Section 33 of the Evidence Act 2011.

?He argued that for a dying declaration to be admissible the declarant must have believed himself to be in danger of approaching death although he might have entertained hopes of recovery at the time of making the declaration. He relied on the case of Kuse vs. The State (1969) NMLR 12. He further argued that where there is doubt as to a belief in death at the time of making the statement, such

statement is not admissible. This position he stated was held in the case of Uboni vs. The State (1972) 10 SC 101. He went further to state that where the Court intends to rely on the account of an eye witness who heard a dying declaration it ought to be proved in the exact words of the deceased as to remove any lingering uncertainties as to what the deceased had in fact said. He relied on the case of Akpan Ikon 1 Ors vs. The State (1973) 1 ALL NWLR (Pt 1) at 559. Learned Counsel argued that in the instant case PW1 in his evidence stated that it was the deceased who told him that the Appellant stabbed her and he did not make any effort to state the exact words uttered by the deceased as required by law. This he stated, makes the evidence of PW1 hearsay and therefore inadmissible in law.

?Counsel further submitted that the confessional statement marked as Exhibits No. 2A and 28 were retracted by the Appellant during the course of his trial and made out an entirely different story which contradicted the confessional statement. He stated that confession by an accused person and properly proved is the best guide to the truth on the part played by him. He relied

on the case of Egogbonome vs. The State (1993) 7 NWLR (Pt 306) 383 at 435 and the provision of Section 27 (2) of the Evidence Act 2011 which provides that confession when made voluntarily, are deemed to be relevant facts against the person who made them, that a Court can successfully convict on a confessional statement where the accused admit to having committed the said offence and must have made such admissions without the use of any form of threat, inducement, promise or oppression by the prosecution. He then submitted that where there is a contradiction in the cases of both prosecution and defence, which said contradiction relates to facts considered to be very material, substantial and weighty, the Court must take caution not to ground a conviction, rather the Court should discharge and acquit the accused person. He relied on the cases of Nigerian Customs Service vs. University & Anor (FEDERAL HIGH COURT OF NIGERIA LAW REPORT) (2000) VOLUME 1 PG 300. He further submitted that in any criminal matter an accused person is presumed innocent until proven guilty. He cited Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 and Section

138(1) and (2) of the Evidence Act 2011 and the cases of Ani vs. The State (2009) 6 SCJN at 100 and Woolminton vs. D.P.P. (1935) AC 462. He argued that for a Court to secure a conviction on a charge of culpable homicide punishable with death, the prosecution must prove.

a. That the deceased died.

b. That the death of the deceased had resulted from the act of the accused and;

c. That the act or omission of the accused which caused the death of the deceased was intentional with full knowledge that death or grievous bodily harm was its probable consequence.

He relied on the cases of John Ogbu & Anor vs. The State (2007) SCNJ 379; Basil Akpa vs. The State (2008) 4 SCNJ 325, Davies vs. D.P.P. Samuel Ayo Omoju vs. The Federal Republic of Nigeria (2008) 2 SCNJ 197, State vs. Fatai Azeez & Ors. (2008) 4 SCNJ 325 and Stephen John & Anor vs. The State (2011) 12 SCNJ,

?He finally urged the Court to discharge and acquit the Appellant for it is not the duty of a trial Court to offer any explanation on behalf of the prosecution. He cited the cases of Morko vs. The State (1998) 2 NWLR (Pt.537) 297 at 270 and Federal Republic of Nigeria vs.

Taiwo (2001) 2 FHCCLR at 389.

In response, the learned Counsel for the Respondent Musa Imam Esq, submitted that the burden of proof in any crime or a wrongful act rests on the person who asserts it and that is the prosecution. He also stated that the essential ingredients that the prosecution must prove in order to secure a conviction for the offence of culpable homicide punishable with death are:

a. That the deceased died.

b. That the death was caused by the accused person,

c. That the accused person had the intention of causing the death of the deceased or to cause his grievous bodily injury.

He cited in support the cases of Jua vs.The State (2010) 4 NWLR (Pt 1184) P 217 at 250 PARAS C – E and P 261 PARAS F – H; Usman Vs. State (2011) 3 NWLR (Pt.1233) 1, Ahmed vs. The State (Pt 1169) 33 and. Ochemaje Vs. The State (2008) 15 NWLR (Pt.1109) P.57. Counsel argued that on the first ingredient of evidence through PW1 who stated the offence, the prosecution gave that the deceased died on page 4 of the record of proceedings. On the second ingredient, Counsel again stated that the prosecution had proved that the death of the deceased was

caused by the Appellant through the evidence of PW1 on page 4 of the record.

On whether the evidence of PW1 of what he saw and heard from the deceased constitute hearsay evidence, learned Counsel cited the case of Olabode vs. The State (2009) 11 NWLR (Pt.1152) P.270 – 271 PARA F – D where the Court held that evidence of a witness who saw and heard the deceased does not constitute hearsay.

The general principle of law is well entrenched and also enunciated in our Constitution that proof of criminal responsibility is solely placed on the prosecution who is accusing the accused person of having committed an offence. The underlying reason is to ensure that the prosecution satisfies with certainty that the accused and no other person committed the alleged offence. For the persecution to discharge the onus placed on it therefore, the proof must be beyond reasonable doubt through direct oral evidence or testimony of a witness/witnesses who saw, heard and believed. Proof beyond reasonable doubt can also be by means of a circumstantial evidence as well as by confessional statement which is proved to be free from all forms of impediments such as force,

inducement or favour which existence will discredit the statement and render it inadmissible in evidence. See Osuagwu vs. The State (2009), NWLR (Pt.1123) 523, Kabiru vs. A.G. Ogun State (2009) 5 NWLR (Pt.1134) 209; Ike vs. The State (2010) 16 NWLR (Pt.1218) 132.

For purpose of securing conviction under Section 221 of the Penal Code therefore, the onus is squarely placed on the prosecution, who must as a matter of duty establish by credible and cogent evidence the following three ingredients;

a. The death of the deceased in question.

b. That the death must have been caused by act of the accused and;

c. That the said act which caused the death was intentional with the accused having the knowledge that death or grievous bodily harm was probable consequence of his act. See Nwokearu vs. State (2010) 15 NWLR (Pt.1215) 1, Itu v. State (2014) All FWLR (Pt 750) 1245.

In the instant appeal, it is not in doubt that the 1st ingredient required to be proved has been established through the evidence of PW1, Dahiru Mohammed on page 3 of the record, wherein he testified to the effect that “my sister Jummai is dead as a result of the act of the

accused person who stabbed her….” And further stated that the village head of Musari who attached me with his son and a dispenser who transferred the deceased to Guri police station on reaching Guri, the victim died…” The evidence of PW3 Cpl Abubakar Dominic corroborated the evidence of PW1 when de testified on page 13 of the record that: “I Was at the Division (i.e station) when a team of policemen attached to Musari outpost accompanied with the father of the accused called Wakili brought a corpse along with the accused person. The name of the deceased was Jummai Saidu…” In this respect also, the evidence of DWl, the Appellant himself, confirmed the death of the deceased person when he testified under cross examination on page 25 of the record;

“Yes, we were living in the same village with the deceased and I know her before her death.”

Based on the evidence of PW1, PW3 and DW1, there is therefore no doubt or contradiction to the fact that the said deceased Jummai in fact died.

The question that may be asked is, who killed the deceased? PW1 in his evidence before the Court at pages 3 – 4 of the record testified thus:-

“…..My sister Jummai is dead as a result of the act of the accused person who stabbed her with a long knife called (Gario)…..on Wednesday at about 3.00am the accused went around and stabbed the deceased on 3 different parts of her body and on reaching there, I met her in a critical condition with some injuries but she was a life. She was able to speak at that time the deceased told me that it was Hassan that stabbed her.”

He stated further under cross-examination at page 4 of the record that;

?….On the incident date, I was at my house. I was not there when the accused was stabbing the deceased. It was the son of the deceased Umaru that told me about the incident…..I met her in blood and I also saw the knife used (i,e. Gario. Gario is long iron instrument with curved at its edge and is an iron of 3 – 4 feet long..”

?The learned trial Judge in his judgment wisely in my view rejected the evidence of PW1 as a dying declaration as the said statement does not qualify as a dying declaration. What this simply means is that, the evidence of PW1 of what the deceased told him before she died could not pass for a dying declaration for there

being no proof that the deceased who talking to PW1 was under the apprehension that their death was imminent. The provision of Section 33(1) of the Evidence Act, provides that;

“Statement, written or verbal on relevant facts made by a person who is dying are themselves relevant facts in the following cases:

“a. when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in death, in cases in which the cause of that person’s death comes into question, such statement are relevant only in trial for murder or manslaughter of the deceased person and

only when such person at the time of making such declaration believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes to recovery.”

This provision is clear and unambiguous for a statement to qualify as a dying declaration, the deceased at the time of making such statement believed himself to be in danger of approaching death although he may have entertained at the time of making the statement some hope of recovery.

The Respondent counsel had argued

that the evidence of PW1 represents what he saw and heard from the deceased before her death and therefore do not constitute hearsay. The Supreme Court held in the case of Olabode vs. State (2009) 11 NWLR (Pt.1152) 270 thus;

“Pieces of evidence by witnesses which represent what they saw and heard from the deceased do not constitute hearsay. In the instant case, PW1 and PW2 gave evidence of what they heard directly from the mouth of the deceased both at the scene of the-crime and at the hospital. Their evidence was not hearsay evidence at all.”

See Emmanuel Ugwumta vs State (1993) 6 SCNJ (Pt.11) 212, 224; Okoro vs. State (2012) LPELR – 7846 (SC) Ezeugo vs. State (2013) 9 NWLR (Pt.1360) 508 CA in the above cited cases, the Court held that the evidence of a person who, saw and heard from the deceased, is not hearsay. In the instant case on appeal the evidence of PW1 though does not constitutes dying declaration, it is however not hearsay.

It is clear that by the provision of Section 28(1) and (2) of the Evidence Act, 2011, that a confession is a statement, oral or written by a person accused of the commission of a criminal offence at the time

it was made, agreeing or admitting that he had committed the offence with which he was accused. Such a confession may be used at the trial of such a person for the offence with which he was accused in the discharge of the burden of proof placed by law on the State. However, for a confession to be relevant and admissible at the trial of the matter, it must have been made freely and voluntarily by the maker without any let, hinderance or undue influence of whatever nature by or from persons in authority. There is however, a duty on the Court to test the truth of a confession by examining it in the light of the other credible evidence before the Court. The usual questions to ask are:-

a. Whether there is anything outside the confession to show that it is true.

b. Whether it is corroborated.

c. Whether relevant statements made in it of facts are true as far as they can be tested.

d. whether the accused person had the opportunity of committing the offence charged.

e. Whether the confession is possible and;

f. Whether the confession is consistent with other facts which have been ascertained and have been proved.

A denial or retraction of a confessional

statement is a matter to be taken into consideration to decide what weight could be attached to it. See Okpang vs. Queen (No 1) (1961) 1 SCNLR 53; Mbenu vs. The State (1988) 3 NWLR (Pt.84) 615, Udofia vs. The State (1984) 12 SC 139, Ujegele vs. The State (1988) 1 NWLR (Pt.71) 414 and Akpa vs. The State (2007) All FWLR (Pt.351) 1560.

In the present appeal, the contention of the learned Counsel for the Appellant is that since the Appellant had denied signing Exhibits 2A and 28, the Respondent had to prove beyond reasonable doubt that they were made by the Appellant and that the trial Court must ensure that it was the actual confession of the accused.

The record of appeal at page 14 lines 5 – 8 shows what transpired when the statement by the Appellant Exhibits 2A and 2B was been tendered through PW3. This is the response of Counsel to the Appellant.

?I am objecting the statement because the statement was not sign or thump printed which would show that the accused gave his words. We are also objecting because the accused person did (sic) give statement to this witness?.

?The learned trial Judge admitted Exhibits 2A & 2B in

evidence on the ground that he observed that in the place provided for the signature of the accused, his name was clearly written. This he said in his view goes to show that the accused had appended his signature or has written his name to serve as his signature. See page 15 of the record.

?The Appellant in exhibit 2B page 73 lines 25 – 33 and page 74 lines 1-4 stated that;

?…

Then on 03/07/2008 at about 02:00 the same sickness came back to my wife still mentioning the name of the said Jummai Hajara Haladu I grew anoid (sic) I took law into my hand and carry my dangerous weapon that is curved knife as my wife was crying that this woman will kill her, I went to her house and met her starting inflicting (sic) injuries on her with the weapon, I left her half dead … It was on our way to Guri the woman gave up”.

?The evidence of PW1 and PW3 corroborate the statement in Exhibits 2A and 2B on page 3 ? 4 of the record.

“…My sister Jummai is dead as a result of the act of the accused person who stabbed her with a long knife called Gario. I can recall that, the wife of the accused person went to Ariri village for ceremony and she was affected with malaria for 3 days and the accused went and brought her home, the accused then said, her neighbour Jummai (the deceased) was the one who be witched her … on Wednesday at about 3:00am the accused went around and stabbed the deceased on 3 different part of her body and on reaching there I met her in a critical condition with some injuries but she was alive. she was able to

speak at that time, the deceased told me that it was Hassan that stabbed her,…. on reaching Guri the victim died.”

PW3 in his evidence on page 13 lines 15 & 16 stated that “accused said he used Barandami (i.e. long curved knife) in killing the deceased.? The above excepts of the prosecution witnesses reveals that there was evidence outside Exhibits 2A and 2B that showed that Exhibits 2A and 2B were not only probable but true. I also agree with the learned trial Judge’s position that the Appellant certainly had the opportunity to commit the offence and did -in fact committed the offence. By virtue of the combined effect of the evidence of PW1, PW2, PW3 and Exhibits 1, 2A and 2B there is every cogent and convincing reason to hold that the prosecution has proved beyond reasonable doubt that the death of the deceased was a direct consequence of the act of stabbing by the Appellant with Exhibit 1 (a curved knife). And I so hold.

The third ingredient of the offence required to be established by the prosecution is whether or not the act of the Appellant was intentional with the knowledge that death or grievous bodily harm was its probable

consequence. The doctrine has long been settled that the law presumes that a person intends the natural consequences of his act though the presumption is however rebuttable. And the burden of rebutting this presumption lies squarely upon the defence. See Ajidehun vs. The State (1991) 1 NWLR (Pt.213) 33 at 44 paras D ? D. The interpretation of the accused intention on the fateful day can be better explained by his confessional statement and the evidence of PW1 which detailed evidence had been stated earlier. By the use of a long curved knife on several-parts of the body is a confirmation that the accused intended the natural consequences of his act. The natural consequence is the death of the deceased. The Supreme Court held in Micheal vs. The State (2008) 9 MJSC 61 at 73 that-

“In a charge of culpable homicide, the nature of the weapon used, its weight and size are-in the circumstance of the case essential in determining whether the conviction should be one of culpable homicide punishable with death or not

?The Court further held that;

“Where the deceased died on the spot or soon after the injury inflicted on an accused

person, the accused person will be guilty of causing the death.”

It is therefore clear from the facts and circumstances of this case that the Appellant intended to cause the death of the deceased and did in fact caused her death.

On the defence of alibi raised by the Appellant, the law is that the defence must be unequivocal and notice of intention to raise the defence of alibi must be given and this ought normally to be done at the first possible opportunity during investigation of the allegation against the accused person and not during trial. This will enable the prosecution investigate the truth of the alibi and call evidence if necessary in rebuttal. Furthermore a mere allegation by an accused that he was not at the scene of the crime is not enough. For the defence of Alibi to succeed the accused must give some explanation of where he was and the persons who knew of his presence at that other place at the time of the commission of the offence in question. See Ike vs. State (2010) 5 NWLR (Pt.1186) 41; Sowemimo vs. State (2001) 36 NRW 52, Adedeji vs. State (1971) 1 All NLR 75, Mohammed vs. State (2011) All FWLR (Pt.580) 1276 and Ndidi vs.

State (2007) All FWLR (Pt 381) 1617.

In the instant case, the defence of alibi was raised by the Appellant during trial and there were no particulars in support as to exactly where he was, with whom and what he was doing at the material time. Merely saying he was somewhere was not enough. I am therefore of the firm view that the alibi of the Appellant was totally devoid of any substance in view of his own free and voluntary confessional statement fixing himself at the scene of the crime and his active participation in the crime committed. The defence of alibi by the Appellant is an afterthought. It is trite that where there is evidence fixing the accused at the scene of crime like in this case in hand, the defence of alibi is automatically destroyed. See Onuchukwu vs. The State (1998) 4 SCNJ 36 and Sowemimo vs. The State (2004) All FWLR (Pt.208) 951.

On the sole issue canvassed, I resolve same in favour of the Respondent. Consequently, I dismiss the appeal by the Appellant as it lacks merit. The conviction and sentence of the Appellant as contained in the judgment of the learned- trial Judge delivered on the 28th July, 2010 in Charge No. JDU/29c/2008

is hereby affirmed.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read the judgment of my learned brother, UWANI MUSA ABBA AJI JCA before it was delivered. I agree with the resolution of the lone issue in the appeal and the conclusion that the appeal lacks merit.

I dismiss the appeal and affirm the decision of the trial judge.

IBRAHIM SHATA BDLIYA, J.C.A.: I agree with the leading judgment just delivered by my learned brother, Uwani Musa Abba Aji, J.C.A. The judgment of the Lower Court delivered on the 28th July 2010, in charge No.JDU/29C/2008, is hereby affirmed accordingly.

Appearances

No appearance for the AppellantFor Appellant

AND

M. M. Imam, Esq. with him, Aliyu Abdullahi, Esq.For Respondent