ABUBAKAR MUSA v. THE STATE
(2018)LCN/11889(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/S/73C/2017
RATIO
CRIMINAL LAW: PROOF OF COMMISSION OF A CRIME
“It is trite that proof of commission of a crime by an accused person can be established in any of the following ways namely.
(a) Through the testimony of an eye witness or witnesses who witnessed the act of the commission of the offence by the accused person; or (b) By confessional statement made voluntarily by the person accused of the commission of the offence.
(c) By circumstantial evidence. The essential ingredients that the prosecution must establish in order to prove its case beyond reasonable doubt to justify a conviction under Section 221 of the Penal Code are: –
1. That the deceased has died,
2. That the death of the deceased has resulted from the act of the accused, and
3. That the act of the accused was intentional with knowledge that death or grievous bodily hard was its probable consequence.
All the three ingredients must be proved without any one of them missing. In other words, the three ingredients must co-exist and must be proved before a conviction can be secured. See HARUNA V. A.G. FEDERATION (2012) 9 NWLR (Prt. 1306) 419 and ADAVA V. STATE (2006) 9 NWLR (Prt 984) 152.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
EVIDENCE: ABSENCE OF EYE WITNESS
“Although in the absence of an eye-witness account, a trial Court is at liberty to draw inferences from facts presented before it in proof of the guilt of an accused person where there is no direct evidence coming from any witness or witnesses. However, before a Court can safely rely on circumstantial evidence to convict an accused person it must be extraordinarily careful and also be cautions in order not to convict an innocent person or a person who is totally not responsible for the commission of the crime and for that reason, the trial Court must very narrowly examine the circumstantial evidence before relying on same to convict the accused person, simply because such evidence might be susceptible to fabrication just in order to rope in an innocent person into the commission of the offence that he knew nothing about. In other words, the circumstantial evidence must be unequivocal and must have a probative value. See OMOREGIE V. STATE (2018) 2 NWLR (Prt 1604) 505 at 520 – 521.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
ABUBAKAR MUSA Appellant(s)
AND
THE STATE Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Sokoto State High Court delivered on the 30th day of March, 2017 wherein the appellant was convicted and sentenced to death by hanging for the offence of culpable Homicide punishable with death under Section 221 (b) of the Penal Code.
Miffed by the said decision, appellant appealed to this Court on 30th March, 2017 by filing an Omnibus ground. By leave of this Court granted on 16th October, 2017, appellant amended his notice of appeal, which contain two grounds of appeal. The said two grounds of appeal (shorn of particulars) as follows: –
GROUND ONE
The learned trial judge erred in law when he convicted the Appellant of the alleged offence on circumstantial evidence that does not unequivocally, positively and irresistibly points to the guilt of the Appellant.
GROUND TWO
The learned trial judge erred in law when he convicted the Appellant of culpable homicide punishable with death without proof of the alleged offence beyond reasonable doubt.
From the above two grounds of appeal, learned appellant counsel E.U. Chinedum, Esq. formulated a lone issue for the determination of this appeal as follows: –
Under Nigeria Criminal jurisprudence can prosecution be said to have discharged the burden of proof sufficient to sustain charge against a defendant (or an accused), when it failed to prove its case beyond reasonable doubt? (Distilled from grounds 1 and 2).
Learned counsel for the respondent, Zulai Bello, Esq. also formulated a lone issue thus: –
Whether the guilt of the appellant was established and proved beyond reasonable doubt, regards been had to the evidence adduced at the trial.
The two issues are virtually the same even though couched differently. They both questioned the evaluation of evidence by the trial Court. That being the position; the issue to be determined in my respectful but firm view is simply whether the prosecution has established the guilt of the accused person beyond reasonable doubt.
Proffering argument on the lone issue, learned appellant’s counsel submitted that to secure conviction under Section 221 (b) of Penal Code the prosecution must establish nexus between the act of the appellant and the death of the deceased. In proof of its case before the trial Court, the prosecution has failed to lead credible evidence linking the appellant with the death of the deceased. While conceding that medical evidence in proof of death is not always desirable where the cause of death can be properly inferred from the circumstances of the case, he submitted that where there is existence of third party acts that comes between the initial event and the end result that might have connected a wrongful act to an injury, medical evidence is indispensable. He thus submitted that the admission and treatment the deceased received at the hospital has exposed her to numerous probable cause which amount to intervening factors to the act of the appellant particularly having spent over a week receiving treatment at the hospital.
Still in argument, learned counsel submitted that the failure of the prosecution to adduce evidence as to the cause of the death of the deceased is fundamental in the discharge of the burden of proof placed on it by law. He referred to OFORLETE V. THE STATE (2000) 12 NWLR (Prt 681) 415 at 437 and ANEKE V. STATE (2014) 10 NWLR (Prt 1415) 353 at 379.
He submitted further that the prosecution’s failure to lead evidence in rebuttal of the appellant?s defence of self defence created doubt in the whole trial which must be resolved in favour of the appellant. He referred to STATE V. AZEEZ (2008) 14 NWLR (Pt. 1108) 439 at 483 and APUGO V. STATE (2006) 16 NWLR (Prt 1002) 227 at 258 in urging this Court to resolve the lone issue in favour of the appellant and to allow the appeal.
On the part of the respondent, it was submitted that by the evidence of PW1 and PW2 as well as the appellant’s own extra – judicial statement, the death of the deceased is indisputable. Also not in dispute, is the fact that it was the act of the appellant that caused the death of the deceased also relying on the appellant’s extra – judicial statement Exhibit A1. Also taking into consideration of the type of weapon used and the part of the body where the injury was inflicted, learned counsel submitted that the only logical conclusion that would come to a rational mind is that the appellant must have intended to cause the death of the deceased and must have also known that death would be the probable and not only the likely consequence of his act. He referred to ILIYASU V. STATE (2015) 11 NCC 300 at 336 – 337.
Learned counsel contended that although no one was together with the appellant and the deceased when the unfortunate incident happened, the fact that the deceased died as a result of the injuries she sustained in the course of squabble with the appellant, failure to tender medical evidence does not render the cause of the deceased’s death improbable. Thus, in the absence of medical report, the Court can properly infer the cause of death from the circumstance of the case. He referred to ADEKUNLE V. STATE (2007) 2 NCC 211 at 214, OGBU V. STATE (2007) 2 NCC IRO ISANSI V. STATE (2008) 3 NCC 1 at 4.
Still in argument, learned counsel submitted that the appellant’s extra – judicial statement Exhibit A and A1 are improbable and untenable and therefore, the trial Court was justified in disregarding same and convicting the appellant on the basis of circumstantial evidence. He referred to SAIDU V. STATE (2011) 6 NCC 126 AT 131 – 132.
On the appellant’s claim to self defence, he submitted that the alleged possession of a knife by the deceased without any evidence of its used against the appellant does not entitle him a defence of self defence.
The facts as encapsulated in the appellant’s brief is that on the 8th of April, 2014 after the day’s job, the appellant set out to satisfy his sexual urge when he visited the deceased at kwannawa Guest Inn, Sokoto. Both of them having agreed to a fee of N500 (Five Hundred Naira) for a round of sexual intercourse, retired into the hooker’s room. The appellant in accord with their terms handed a N1000 note to his customer in expectation of having his N500 balance. However, problem arose when the deceased, who executed her part of the contract refused to refund his balance. Consequent upon the squabbles that ensued, the deceased sustained a cut on her stomach from a knife brought by the deceased from her kitchen. The deceased was rushed to Usman Danfodio University Teaching Hospital for treatment where she died eight (8) days after admission, on the 16th April, 2014.
In criminal cases, the burden of proof that the accused committed the offence lies squarely on the prosecution, which must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person by Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135 (2) of the Evidence Act.
I have stated right from the onset that the appellant was charged, tried, convicted and sentenced by the trial Court for causing the death of deceased, princess patience by stabbing her with knife. At page 84 of the record of appeal, learned trial judge found as follows:-”Therefore you Abubakar Musa having been found guilty of the offence of Culpable Homicide Punishable with death contrary to Section 221 of the Penal Code, I hereby sentenced you to death. You are to be hanged in the neck till you be dead. May your soul rest in peace.”
It is trite that proof of commission of a crime by an accused person can be established in any of the following ways namely.
(a) Through the testimony of an eye witness or witnesses who witnessed the act of the commission of the offence by the accused person; or
(b) By confessional statement made voluntarily by the person accused of the commission of the offence.
(c) By circumstantial evidence.
The essential ingredients that the prosecution must establish in order to prove its case beyond reasonable doubt to justify a conviction under Section 221 of the Penal Code are: –
1. That the deceased has died,
2. That the death of the deceased has resulted from the act of the accused, and
3. That the act of the accused was intentional with knowledge that death or grievous bodily hard was its probable consequence.
All the three ingredients must be proved without any one of them missing. In other words, the three ingredients must co-exist and must be proved before a conviction can be secured. See HARUNA V. A.G. FEDERATION (2012) 9 NWLR (Prt. 1306) 419 and ADAVA V. STATE (2006) 9 NWLR (Prt 984) 152.
Parties are ad idem as regards the death of the deceased and the learned trial judge rightly held at page 69 of the record of appeal thus: –
”On the first ingredient of the offence, the defence counsel had earlier conceded to the fact that by virtue of the evidence of PW1, PW2 and PW3 this ingredient of the offence has been proved beyond reasonable doubt.”
On the second ingredient, the learned trial judge relied on the circumstantial evidence in linking the death of the deceased to the act of the appellant when he found at pages 77 and 78 of the record of appeal that: –
”From the facts of this case which happened between the deceased and the accused person alone in the confines of the room of the deceased, what this Court should consider is the weapon used in the commission of the offence and the part of the body that was attacked. It has been proved in evidence before this Court that Exhibit B a kitchen knife is the weapon used in the commission of the offence in this case. It is also in evidence that the deceased person in this case was stabbed on her stomach as a result of which she was admitted at UDUTH Sokoto for treatment where she eventually died. It is also to be noted that the accused person having gave two complication (sic) account of what happened in this case shows clearly that he has something to hide in this case. Highlighted above if considered together will leave no one in doubt that it was the act of the accused that caused the death of the deceased person in this case.”
On the third and final ingredient, learned trial judge concluded at page 82 of the record of appeal as follows: –
”From the surrounding circumstances of this case, it has been held by this Court that it was the accused person and no one else that stabbed the deceased with Exhibit B, a kitchen knife therefore the accused in this case having stabbed the deceased in this case with Exhibit B on her stomach must have intended to kill the deceased and I so hold.”
There is no gainsaying the fact that in proof of deceased’s cause of death and the appellant’s intention (mens rea), reliance was placed on circumstantial evidence. The law is settled that in the case of proof by reliance on circumstantial evidence to be relied upon by the prosecution must be credible, cogent and also must be irresistibly point to the guilt of the accused and to no other person. See ABDU V. STATE (2016) 1 NWLR (Prt 1494) 557, USMAN V. STATE (2013) 12 NWLR (Prt 1367) 76 and MAIGARI V. STATE (2013) 17 NWLR (Prt 1384) 425.
Although in the absence of an eye-witness account, a trial Court is at liberty to draw inferences from facts presented before it in proof of the guilt of an accused person where there is no direct evidence coming from any witness or witnesses. However, before a Court can safely rely on circumstantial evidence to convict an accused person it must be extraordinarily careful and also be cautions in order not to convict an innocent person or a person who is totally not responsible for the commission of the crime and for that reason, the trial Court must very narrowly examine the circumstantial evidence before relying on same to convict the accused person, simply because such evidence might be susceptible to fabrication just in order to rope in an innocent person into the commission of the offence that he knew nothing about. In other words, the circumstantial evidence must be unequivocal and must have a probative value. See OMOREGIE V. STATE (2018) 2 NWLR (Prt 1604) 505 at 520 – 521.
In the instant case, the learned trial judge has found as a fact that only the appellant and the deceased were in the confines of the room of the deceased.
Both the appellant’s extra – judicial statement, Exhibit ‘A’ and ‘A1’ as well as his evidence in Court were jettisoned by the learned trial judge but yet arrived at the conclusion that the deceased was stabbed on the stomach with knife by the appellant which resulted in her death. PW3 told the trial Court that it was Corporal Haruna Suleiman that brought both the accused and the kitchen knife to him but the said Corporal Haruna Suleiman was not called by the prosecution to shed light on how he came about the said kitchen knife.
In homicide cases, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity. See IGBA V. STATE (2018) 6 NWLR (Prt 1614) 44 at 68. In the instant case, can it be said that the cause of death could safely be inferred from the nature of the injuries allegedly inflicted by the deceased in the absence of medical evidence? In GABRIEL V. STATE (1989) 12 SC 129 at 136, the Supreme Court relying on the dictum of KATO DAN ADAMU V. KANO NATIVE AUTHORITY (1956) 1 F.S.C 25 held that from the nature of the injuries described by the Doctor – deep lacerations in the head and face, from deep laceration and the nostrils injuries same was not self-inflicted.
This would then put together with other evidence in the case that during the whole period of the encounter from night to morning, she was found dead, the deceased was alone with the appellant behind closed door and locked the doors. The deceased is shouting for help but appellant refuses to open the door to his room, in the morning the deceased is dead and the appellant is alive.
In contrast, the deceased in the instant case was taken to the hospital for treatment where she was on admission for 8 days before her death. PW1 told the trial Court that he recorded the statement of the deceased but the prosecution did not deem fit to tender same. Neither the doctor that treated the deceased testified at the trial nor an autopsy report tendered at the trial. The only evidence as to nature of the injuries sustained by the deceased was that of by PW4, acting Tiv community leader who said the deceased stomach was pierced open and her intestine came out. But when cross-examined at page 29 of the record of appeal, he said-
”I was told that our sister was killed at the hotel. My sister was a prostitute, she works in a brothel. Everything I know about the case was told me by my people.”
In the light of the above, it is my respectful but firm view that the absence of medical evidence is detrimental to the prosecution’s case and the circumstantial evidence was inconclusive. Where the circumstantial evidence is not conclusive or is capable of two interpretations of showing the innocence of the accused and at the same time of his guilt, the Court must cast the benefit of doubt in his favour to exonerate and acquit him.
See LORI V. STATE (1980) 8 – 11 SC 81 and IJIOFFOR V. STATE (2001) 3 NWLR (Prt 699) 55. Also in STEPHEN UKORAH V. STATE (1977) 4 SC 167 it was inter alia held that what has to be established is the link between the appellant (or his action) with the death of the deceased, and in the absence of clear unequivocal evidence:
(1) that the deceased died directly from the assault by the appellant on him, or
(2) that the appellant was armed with any sharp instrument during the assault on the deceased, it becomes necessary to have a medical evidence on the cause of death so as to eliminate the problem raised by the existence of a long deep cut on the body of the deceased. And until that problem is eliminated we are of the firm view that it must be very unsafe to convict for murder as charged on circumstantial evidence available.
Finally, in IDOWU (2007) 7 SC (Prt 11) 50 at 92 – 93, Per Iguh, JSC said:
”Without doubt, the entire circumstances of this case appear to me utterly despicable, obnoxious and clearly disgusting I cannot see my way clear to conjecture or infer that the defilement of four year old infant is an act, the probable consequence of which is the death of the victim in the absence of any cogent medical evidence on the point. There is no such evidence present in the case. In the circumstance, it is with considerable reluctance that I find myself not prepared to hold that the prosecution has established beyond reasonable doubt that the act of the appellant was of such a nature as to be likely to endanger human life, even though in fact, it occasioned the death of the deceased in the present case.”
From the foregoing facts, the circumstantial evidence surrounding the death of the deceased in the present case do not complete the unbroken chain of the evidence as would justify the trial Court coming to the irresistible conclusion that the appellant and no one else caused the death of the deceased.
The next germane issue is whether the learned trial judge had sufficiently considered the appellant?s defence of self defence. It is trite that in a criminal trial, any defence raised by an accused person must be considered however slight. Thus, any defence to which an accused person is on the evidence entitled to should be considered however stupid or unreasonable. See ADEBAYO V. REPUBLIC (1967) NWLR 391, ONUOHA V. STATE (1988) 3 NWLR (Prt 83) (Prt 72) 529 and OFORLETE V. THE STATE also reported in (2000) 7 SC (Prt 1) 80 at 85. In OGUNYE V. STATE (1999) 4 SC it was held that no matter how worthless the defence set up by trial may be, the trial Court still has a duty to consider them dispassionately before dismissing them.
At pages 79 – 80 of the record of appeal, learned trial judge has this to say:-
”It is to be noted that for a defence of the accused person in this case it must be shown that the accused did not want to fight the deceased and had made all effort to withdraw and must also show that his life was in danger and the only option left for him was to kill his attacker in order to save his own life: as I have said earlier considering the surrounding circumstances of this case all these factors cannot be said to exist to avail the accused person the defence of self defence …considering the facts of this case and the surrounding circumstances of this case, this Court is of the view that even though what happened between the accused and the deceased happened in a room between the two of them, it can be inferred that there was a sudden fight between the two of them over the issue of N500.00 change which the deceased refused to give to the accused person. But considering the nature of the weapon used Exhibit B which is a kitchen knife and the position of the injury sustained by the deceased i.e. on the injury sustained by the stomach can one reach the conclusion that the accused person did took undue advantage of the deceased in this case.”
He concluded thus: –
”It is the view of this Court that even though the accused from the circumstances of this case had acted without premeditation in a sudden fight in the heat of passion, he must have taken advantage of the deceased who is a women and must have acted in a cruel and unusual manner by stabbing her with a knife, Exhibit B on her stomach.”
I have stated elsewhere in this judgment that the learned trial judge had rejected both the appellant’s extra – judicial statement together with his evidence in Court. I have also opine that the circumstantial evidence surrounding the death of the deceased do not complete the unbroken chain of evidence to justify an irresistible conclusion that it was the accused and no one else caused the death of the deceased. Therefore, there was clearly no basis of the trial Court’s findings that the appellant had acted without any premeditation in a sudden fight in the heat of passion and have taken an undue advantage of the deceased.
It is perhaps necessary to comment on the categorical stand taken by the learned trial judge while rejecting the appellant’s statement and his evidence at the trial wherein he relied on the authority of IKEMSON V. STATE (1989) 3 NWLR (Prt 110) 455 at 475. The correct position is that a denial of a confession by itself is no reason for rejecting the statement. The confession where voluntary is admissible and the denial is a matter to be considered in deciding the weight to be attached to the confession. See QUEEN V. ITULE (1961) 1 ALL NLR 462 and IKEMSON V. STATE (Supra).
It is also settled that an accused person may be convicted of a lesser offence as disclosed by the evidence where the evidence is held to be insufficient to justify a conviction for the principal offence. By virtue of Section 217 of the Criminal Procedure Code, where an accused is charged with one of the several possible offences but from the evidence the accused is shown to have committed a different offence with which he could have been charged but was not, he may be convicted of that other offence although not charged with it.
However, such situation does not unfold itself here as the prosecution has failed to establish any link between the act of the appellant and the death of the deceased and therefore, the evidence adduced at the trial did not disclose any offence other than the one the appellant was charged.
In sum, I find the appeal meritorious, and I allow it. Resultantly, the conviction and sentence of the appellant by the lower Court are hereby set aside. The appellant is accordingly discharged and acquitted.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour of reading, in advance, the lead judgment just delivered by my learned brother, Muhammed Lawal Shuaibu, JCA. I agree with the entire reasoning therein for the conclusion that the appeal is meritorious and ought to be allowed, It is hereby allowed by me.
I adopt the consequential orders as made in the judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I have read the draft of the Judgment of my learned brother, M. I. Shu’aibu, JCA which he has just delivered, and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious. I too will discharge and acquit the Appellant and abide by any other consequential orders made thereto.
Appearances:
For Appellant(s)
Muhammad Mohamed (DPP) with him, Al-Mustapha Abubakar (ADPP, MOJ, Sokoto State)For Respondent(s)
