ABDULLAHI v. KANO STATE
(2022)LCN/15947(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Tuesday, September 27, 2022
CA/KN/259/C/2020
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
MUHAMMED ABDULLAHI APPELANT(S)
And
KANO STATE RESPONDENT(S)
RATIO
THE INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH
The 1999 Constitution of this country in its Section 36 (5) further drives that point home by stating that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. What is more, Section 36(6) of the same 1999 Constitution states that “Every person who is charged with a criminal offence shall be entitled to:
(a) be informed promptly in the language that he understands and in detail of the nature of the offence. (Emphasis mine)
It needs no gainsaying that it is in an attempt to comply with the above provisions of the law regarding the details of the offence alleged committed by appellant that respondent at the lower Court, in framing its charge against appellant and his co–accused, stated, expressly, that they not only committed culpable homicide punishable with death but that they did so by strangulating the deceased and pushed him into the water. The ingredients of the offence of culpable homicide punishable with death are (1) that the death of a human being has taken place, (2) that such death was caused by the accused person and (3) that the act of the appellant that caused death was intentional or appellant knew that death would be the probable consequence of his act. The prosecution must prove these ingredients conjunctively and beyond reasonable doubt to secure conviction: see Ahmed v. State (2018) LPELR-46606 (CA). It can do that through any of three means, namely by direct evidence of eyewitness to the offence; by confessional statements of the accused person admitting the offence, or by circumstantial evidence: see State v. Raphael Sunday Ifiok (2019) LPELR-46943(SC). PER UGO, J.C.A.
THE MEANING OF THE “DOCTRINE OF LAST SEEN”
As already pointed out, the trial Judge held appellant and his co-accused responsible on the criminal law doctrine of last seen. Now, what is the meaning of that doctrine? In Oladapo v. State (2020) 1 SCNJ 91; (2020) 7 NWLR (Pt. 1723) 238 at 251 Abba Aji JSC explained it thus:
“This doctrine [of last seen] means that the law always presumes that the person last seen with the deceased is presumed to be responsible for his death, provided the circumstantial evidence is overwhelming and leads to no other person or persons.” (Italics mine)
In the same case Nweze, J.S.C., at p.255 NWLR also explained it thus:
“It [the doctrine of last seen] creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death. ….. Thus, where an accused person was the last to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death. In the absence of such an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that he (the accused person) killed the deceased.” PER UGO, J.C.A.
WHETHER OR NOT THE FACT THAT AN ACCUSED PERSON LIED IN THE WITNESS BOX IS TANTAMOUNT TO PROOF OF HIS GUILT
That appellant and his co-accused person in their defence at the trial denied their statements, Exhibits P1, 2 and 3 and 4, to the police, which fact the trial made quite heavy weather of in rejecting their explanation of the circumstances of the deceased’s death and convicting them, is also of no avail to the respondent. That an accused person lied in the witness box or even has, or had, a bad image is also no proof of his guilt: see Omogodo v. State (1981) NSCC 119 at 128. In fact, Ikongbeh, J.C.A., of blessed memory could not have put the position of the law better when he said in Ogidi v. State (2003) LPELR-10152 at p. 63-54 that:
“The law is well settled that the mere fact a person lied is not proof that he is guilty. As Hurley, C.J. (Northern Nigeria) pointed out in Haruna & Anor v. Police (1967) NMLR 145 at 153, though a man may lie because he is guilty, he may as well lie because he is stupid or afraid or both and whether he is guilty or not.” PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): Appellant and one Abdulmalik Mohammed who is also an appellant in a Sister-Appeal No: CA/KN/259A/C/2019 were tried and convicted before the High Court of Kano State for the offences of culpable homicide punishable with death of one Abubakar Shuaibu on the 9th day of March, 2015 and of conspiring between themselves to commit that same offence. Appellant was the second accused person in the said charges. The two charges read as follows:
1. That you Abdulmalik Muhammad and Muhammad Abdullahi, adult, of Tarauni Local govemrnent, Kano State, within the Kano Judicial Division, on or about the 9th March, 2015 at about 1230 hrs along Ring Road, Unguwa Uku did agreed to do an illegal act to wit, committed the offence of conspiracy punishable under Section 97 of the Penal Code (Cap 105) Laws of Kano State of Nigeria.
2. That you Abdulmalik Mohammed and Muhammad Abdullahi, adults, of Tarauni Local Government Area of Kano State, within Kano Judicial Division on or about the 9th March, 2015 at about 12.30 hrs along Ring Road, Unguwa Uku did committed Culpable Homicide Punishable with death, in that you caused the death of one Abubakar Shuaibu of Tarauni local government area of Kano State by strangulating him in the neck and pushed him into the water with the intention of causing his death and thereby committed an offence punishable under Section 221 of the Penal Code (Cap 105) Laws of Kano State of Nigeria 1999.
The case of the prosecution was that appellant and his co-accused person along with the deceased took the deceased’s motorcycle to the prosecution’s first witness (P.W.1) Nasiru Ahmad’s Workshop on the fateful 9th day of March 2015 for vulcanizing work, deposited it with P.W.1 and all three of them crossed to the other side of the road and disappeared. About four hours later, according to P.W.1, only the appellant and his co-accused person returned to the workshop and were seen by him trying to break the lock of the motorcycle, apparently to take it away. When P.W.1 asked the appellant and his co-accused where the deceased was, they simply told him that they wanted to take the motorcycle away. At that point, P.W.1 mentioned, he observed that appellant and his co-accused were drunk and were holding a bottle which he called ‘piya piya’ and were ‘malingering’, even as he added that both accused persons and the deceased were sober when they first went to deposit the motorcycle with him. He said he drew his colleague’s attention to what appellant and his co-accused person were trying to do and went to report his observations to the Police. Upon getting to Mariri Police Station of P.W.3, he learnt that the deceased had died. He nevertheless reported the matter to the police, made statement and left his phone number with them.
P.W.3, Sgt. Isa Malachi, who was assigned to investigate the case at Mariri Police station before its subsequent transfer to the Kano State C.I.D., in his evidence recounted P.W.1’s observations as stated above. P.W.3 said he arrested the appellant and his co-accused person for what appeared to the police to be homicide especially as appellant and his co-accused did not raise any alarm at the pond where the deceased drowned but instead went to break and remove his motorcycle from P.W.1’s custody. He said Police on the same day engaged men of the Fire Service Department and even local divers to recover the body of the deceased from the pond but to no avail as they could not spot it. It was only on the following day, being the 10th of March 2015, he said appellant’s co-accused person showed the search party the exact location of the pond where the deceased drowned, and his corpse was recovered (see last paragraph of p. 17 of the records to the first paragraph of p.18). When asked by the police to explain how the deceased fell into the water, he said appellant and his co-accused claimed that the deceased fell into the water by himself to swim but was drunk and so drowned. Under cross-examination, P.W.3 said the Police did not believe the explanation of appellant and his co-accused because the deceased was still wearing shirts and trousers when his corpse was recovered, which he said wouldn’t be if the deceased really entered the pond to swim as claimed by them. He said if the deceased really entered the water to swim he would have pulled off his shirts. Though P.w.3 admitted before the Court, under cross-examination, that pictures were taken of the recovery of deceased’s dead body, those photographs (Exhibits P5 and P5a) which turned out quite revealing as regards whether the deceased was dressed in trousers and shirts or simply in a swimming gear when his body was recovered as I shall later show, were for reasons best known to the prosecution not tendered by it, even as they were in its custody. It was only through the dexterity of appellant’s counsel, one Alhassan Adamu, during cross-examination of the second Investigating Police officer (P.W.4), that the said photographs showing the real state of the body of the deceased upon its recovery from the water were recovered from the custody of the prosecution by the same defence counsel and tendered in evidence. The same P.w.3, I should also mention, in the course of his evidence-in-chief tendered without challenge the statements appellant and his co-accused made to the Police at his Mariri Police Station before the transfer of the case to State CI.D. Kano. The two statements of the appellant were admitted in evidence and marked exhibits P2 and P4 respectively.
Besides these two, an uncle of the deceased and the Policeman at State C.I.D., who investigated the complaint upon its transfer there two days after the incident, testified as P.W. 2 and 4. P.W. 2 claimed to have joined the police in the search for the deceased’s copse in the pond was emphatic that it was appellant that finally showed the police where the deceased drowned, from where his dead body was recovered. P. W. 4 on his part, besides telling the Court the investigation he conducted, tendered the second set of statements the appellant and his co-accused person made at the State CID, Kano. They were admitted in evidence as Exhibits P3 and P4.
In their defences, the appellant and his co-accused person, as against their statements to the police tendered without challenge where they admitted accompanying the deceased (they even called him by his name Abba) in pushing his motorcycle to the vulcanizer and how all three of them left to a pond to bath where the deceased according to them later fell into the water and drowned, denied even knowing the deceased at all let alone having anything to do with his death. They also denied knowing one another before their arrest and subsequent arraignment. In fact, they claimed the police was bribed by P.W.2 to implicate them.
In his judgment of 09/05/2019, the trial judge, Nasiru Saminu, J., of the High Court of Kano State while admitting that there was no evidence of direct link between the death of the deceased and the appellant and his co-accused persons nevertheless rejected their denials and the explanation they put forward and held the prosecution to have proved beyond reasonable its case against them and convicted as charged on both counts. He founded his decision principally on the criminal law doctrine of ‘last seen’ after also taking into account the conduct of the appellant and his co-accused after the death of the deceased as earlier testified to by P.W.1. His Lordship reasoned this way in arriving at his conclusion:
“In this case, the person drowned in the pound died immediately as such thereafter because in the evening of 9th March 2015 when he was seen alone and fell into the pound he was not seen alive again but his lifeless body was removed from the pound the next day 10th March 2015 so the necessary inference to be drawn from this circumstances is that the deceased met with his death as a result of been drown (sic) in the pound, I so hold.
“The question that will follow is who was responsible for the deceased been drown (sic) inside the pound. Here also we could not find a direct evidence linking the accused person with the death of the deceased. However, from the available circumstantial evidence it can be safely held that the accused persons and no other person were responsible for the death of the deceased. The evidence goes as this: The 1st and 2nd accused along with one other (later identified as the deceased) came to Pw1 a vulcanizer Pw1 at about 4:00pm at 9th March 2015. According to Pw1 three of them crossed the road and went away. Later around 6:00pm 1st and 2nd accused persons came back to the pw1 in a state of semi-intoxication and were trying to force the key of the deceased motorcycle opened. On been questioned by the Pw1 they did not give any satisfactory answer to Pw1 only that they said they wanted to take the motorcycle to their parent. Pw1 said he knew that the motorcycle belonged to the deceased or the 3rd person the 1st and 2nd accused came along with because he was the one who locked the motorcycle and put the key in his pocket.
“In Exhibit P1 and P2 the accused person admitted been (sic) with the deceased person on the fateful day and according to them he fell inside the river they stated that people like Ilela, Ala, lsya and Malam were there when the deceased fell inside the pound and help the accused persons to get the deceased out but could not. Surprisingly, none of these people mentioned by the accused person was called to give evidence. Surprised still was that when the accused person went back to Pw1 the vulcanizer they did not inform him of what happened to the deceased. They were only attempting to break his motorcycle lock and take it away.
“Worst still is that the 1st and 2nd accused when giving oral evidence denied knowing the deceased forgetting that they had admitted going to the pound along with him in their extra-judicial statements Exhibit P1 and P2 recorded on 10th March 2015 when the matter was still fresh in their mind. These statements were admitted without any objection by the defence. It will be too late in the day for the accused persons to denying knowing the deceased because Exhibit P1 and P2 considered along with the Evidence of Pw1, it is clear that the 1st and 2nd accused were together with the deceased on the 9th March 2015 and went to the pound together on that day their retraction notwithstanding. In Nasiru Vs. State (2016) LPELR-41806 (CA). It is settled that a voluntary confession which is admissible against an accused person does not become inadmissible merely because the accused person who made had retracted’ However, in Haladu Vs. State (2015) LPELR-41806(CA). It is settled that a voluntary confession which is inadmissible against an accused person who made had retracted. However, it is desirable and indeed the practice that where an accused person retracts or resile from his confession, the Court should look for some evidence outside the confession which will render the confession plausible or true’.
“In this case, the 1st and 2nd accused were seen by Pw1 together with the 3rd person who later appeared to be the deceased person. He saw when three of them crossed the road and left their motorcycle with him the 1st and 2nd accused confessed in Exhibit P1 and P2 that they were together with the deceased at the pound where the deceased swam and drowned inside the pound. The body of the deceased was recover (sic) from the pound when the 1st accused pointed out the location where the deceased downed in the pound. This confirms what was contained on the Exhibit P1 and P2 that the 1st and 2nd accused were indeed together with the deceased at the pound on that fateful day contrary to their oral evidence that they never knew the deceased, it is merely an afterthought and I reject it.
“It is also in evidence that the 1st accused pointed to the fire serviceman and the local divers the location where the deceased drown inside the pound. The body of the deceased was recovered from that location as per the evidence of Pw2 and Pw3. Exhibit P1 and P2 shows the body of the deceased being removed from the pound. This piece of evidence confirmed that the 1st and 2nd accused were at the pound with the deceased and were left seen by Pw1 whom they kept their motorcycle with before proceeding to the pound but later 1st and 2nd accused came without the deceased person. Thus, the 1st and 2nd accused in this circumstance owe an explanation as to the whereabouts of the deceased and if he is dead what are the circumstances that led to his death. However, surprisingly they did not proffer any explanation when asked by Pw1 but were hastened to force the lock of the deceased motorcycle opened. In Exhibit P1 and P2 the 1st and 2nd accused claimed that one Ala, Malam. Iseyi were there when the deceased drowned in the pound but the accused did not call these people to testify.
“The accused person throughout the trial did not give any explanation as to the whereabouts of the deceased whom they were last seen with or the circumstances of his death.
“The only conclusion to be drawn in the circumstances is that the 1st and 2nd accused were responsible for the death of the deceased person, I so hold.”
“In Kolade Vs. State (2017) LPELR 42 362 (SC) it was held that”– the law presumed that the person last seen with the deceased bears full responsibility of the death of the deceased per Ogunbiyi in his contribution lord Justice Adekeye, JSC (as he then was) in Hammer Vs. A.G Federation (2012) 9 NWLR (PART) 1306 416 (SC) had this to say:
‘The doctrine of last seen means that the law presumes that the person last seen with a deceased bears full responsibility of his death. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal’.”
Appellant does not agree with that judgment hence this appeal.
Briefs of Argument, including a Reply Brief of appellant, were exchanged by Mr. Habeeb A. Oredola for Appellant and Miss Aisha Ado Abdullahi for the Respondent holding the fiat of the Hon. Attorney General of Kano State to defend the appeal.
Mr. Oredola for appellant distilled the following three issues (the first being rather very presumptuous on the state of the evidence) from appellant’s six grounds of appeal:
1. Whether having regard to the porous and speculative evidence adduced by the Respondent, the lower Court ought to have disregarded and acquitted the appellant, when neither the offence of conspiracy nor culpable homicide was established by the Respondent.
2. Whether the learned trial Judge did not err in law in relying on the doctrine of last seen in convicting the appellant for the offence of conspiracy and culpable homicide when there was sufficient evidence before the lower Court that the deceased was in company of several other persons at the time of his death.
3. Whether the failure of the lower Court to consider the exculpatory evidence contained in Exhibit P1 and P3 of appellant and testimony of the prosecution witnesses did not occasion a miscarriage of justice.
Aisha Ado Abdullahi for Respondent simply saw only one issue arising from appellant’s six grounds of appeal and framed it thus:
Whether from the totality of the evidence before the Court the lower Court was right in convicting and sentencing appellant.
Appellant’s arguments: Arguing appellant’s issue one, Mr. Oredola first submitted, correctly, I should say, that appellant was standing trial for a capital offence so the prosecution had the onus to adduce cogent evidence pointing irresistibly to his guilt to secure conviction. To discharge that onus, counsel submitted and cited Ahmed v. State (2018) LPELR-46606 (CA), the prosecution must prove conjunctively that (1) the death of a human being had taken place, (2) that such death was caused by the accused person, and (3) that the act of the appellant that caused death was intentional or appellant knew that death would be the probable consequence of his act. He said the prosecution was only able to establish the death of the deceased but failed woefully to establish that his death was a homicide or even the precise cause of his death let alone that the appellant was responsible for his death; that there was absolutely no evidence on the records to support the charge as framed that the deceased was strangulated in the neck and then pushed into the water let alone by the appellant. He said none of the prosecution witnesses was even certain of the cause of the deceased’s death and no autopsy report was even tendered by the prosecution to determine whether the deceased was strangled as framed in the charge. He cited Lori v. State (1980) 8-11 SC 81 to submit that medical evidence was imperative in the circumstances of this case to prove that the deceased was strangled as alleged in the charge; that in the absence of cogent evidence dispelling the possibilities of cause of the deceased’s death, the evidence of the two Investigating Police Officers (P.W.3 and 4) regarding the cause of the deceased’s death was completely worthless. He argued that since the prosecution witnesses failed to establish the precise cause of the deceased’s death, there was uncertainty as to whether he was drunk when he attempted to swim in the pond and drowned, as alleged by the appellant and his co-accused, or whether the deceased was strangled and pushed into the water to drown as alleged in the charge by the respondent. In the circumstances, the burden on the prosecution to prove its case against the appellant beyond reasonable doubt to secure conviction was not discharged and the trial Judge was wrong in deciding otherwise, Counsel submitted.
Mr. Oredola labeled the evidence of P.W, 2 and 3 and 4 speculative, hearsay and lacking in evidential value given their admission that none of them witnessed the death of the deceased. He said P.W.2 and 3 even contradicted one another on who pointed out where the corpse of the deceased was recovered from in the pond: that whereas P.W.2 (the uncle of the deceased) claimed it was appellant’s co-accused person that pointed it out, P.W.3 said it was the appellant himself that did. Such contradiction, counsel submitted, raised doubt as to the veracity of the testimony of P.W.2 and 3 and ought to be resolved in favour of the appellant. Counsel in fact urged us to discountenance the testimony of both witnesses. As for the two Police Investigating Police officers (P.W.3 and 4), counsel said even though they ‘allegedly’, as counsel put it, obtained statements tendered as Exhibits P1 and P3 from the appellant, none of them conducted any investigation to verify the authenticity of the contents of the said statements or even what P.W. 3 told the Court in his evidence that appellant and his co-accused told him that the deceased fell into the water to swim but was drunk and so drowned.
Learned counsel next directed the Court’s attention to the evidence of P.W.4 of the State C.I.D. that he also arrested five persons two of which were eyewitnesses. Counsel submitted that the admitted existence of the said eyewitnesses to the incident not only eliminates the doctrine of last seen applied by the lower Court in convicting the appellant, it also means that the evidence of those eyewitnesses was vital and should have been called by the prosecution. The failure by the prosecution to call them, counsel argued, implies that their evidence would have been unfavourable to the case of the prosecution if called hence they were not called and we should so presume, in support of which counsel cited Oshodin v. State (2000) FWLR (Pt. 90) 1336 at 1347. He said the trial Judge also recognized the importance of calling the identified eyewitnesses in the case going by his judgment where he said that people like Ilela, Ala, Isya and Malam whom the appellant mentioned were also at the scene when the deceased fell into the water ought to have been called by the appellant and his co-accused but were surprisingly not called. Relying on Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1 at 31-32 (SC), counsel submitted that failure to call a witness whose evidence is vital to the determination of the case is fatal to the case of the prosecution.
Mr. Oredola next took on the evidence of the Vulcanizer (P.W.1) and also dismissed it as mere speculation and of no evidential value and hinged that submission principally on the admission of P.W.1 that he knew nothing about the death of the deceased. He argued that the alleged attempt of the appellant and his co-accused to force open the motorcycle allegedly belonging to the deceased is not conclusive evidence of the guilt of the appellant and his co-accused, even more so when account is taken of the admitted drunken state of the two accused persons at that time. It is possible, counsel submitted, that given their state of inebriation, they may not have been even aware of what they were doing. That is as counsel also submitted that even the deceased’s alleged ownership of the said motorcycle was not proved. In any case, Mr. Oredola submitted that in any case, the elements of the offence of attempted stealing of the said motorcycle and conspiracy to steal it are distinct and separate from culpable homicide so it is speculative to rely on the fact of the alleged attempted stealing of motorcycle in convicting the appellant for homicide as the lower Court did. Counsel also submitted that, the fact that the appellant and his co-accused did not inform P.W.1 of the death of the deceased is also no proof or mens rea that the appellant caused his death by strangling and drowning him as alleged in the charge sheet; that all that was required of the appellant and his co-accused person was to give an explanation to the Investigating Police Officer (P.W.3), which counsel said appellant did in his statement to the police so it was wrong of the trial Judge to come to the far-reaching conclusion of appellant’s guilt on that account.
Learned counsel relied on the same facts above to also submit that a charge of conspiracy was also not made out by the prosecution so the trial Judge was wrong in convicting appellant of it. He said there was no evidence from the prosecution to establish that the appellant agreed with his co-accused person to kill the deceased or do any unlawful act; that it is not enough to say that because the appellant and his co-accused were allegedly the last to be seen with the deceased they were in agreement to kill him. Respondent, he argued, had the burden to show by direct evidence that appellant and his co-accused were acting in concert or in combination to accomplish or commit an unlawful act coupled with the intention to achieve their the object of their agreement.
Counsel also attacked the trial Judge’s description and use of the two statements of the appellant to the police. He submitted that not only was the statement of the appellant to the police which the lower Court relied on as confessional as regards his being last seen with the deceased not confessional, contrary to the position of the trial Judge, there is even no reference in that statement or statements that appellant was alone with the deceased so the trial Judge was wrong in concluding that appellant was alone with the deceased and proceeding to convict him on that basis.
On issue 2, learned counsel submitted that the doctrine of last seen was wrongly applied by the trial Judge. Relying on Mbang v.State (2009) 12 SC (PT. 111) 193 and Madu v. State (2012) 6 SC (PT 1) 80 and Igabele v. State (2006) 6 SCNJ 124, counsel submitted that the doctrine of last seen is not to be applied indiscriminately; that the doctrine will only apply where the accused person is the last to be seen with the deceased and is unable to give an explanation of how the deceased met his death. In this case, he said, it cannot be said without equivocation that appellant was the last person to be seen with the deceased for the purpose of invoking the doctrine; that on the contrary even in their statements to the police, appellant and his co-accused persons stated that they were not the last persons to be seen with the deceased, a fact counsel said was also confirmed by P.W.4 when he testified that “We arrested five people in connection with this case. The remaining three suspects were met at the scene so they were taken as eyewitnesses. I forgot the names and were released on bail they are eye witnessed (sic) in this case.” Counsel argued that the doctrine of last seen cannot be used as a last resort to link the appellant to the death of the deceased; that for the doctrine to ground a conviction it must irresistibly and unequivocally lead to the guilt of the accused person. He said appellant gave a reasonable explanation of how the deceased met his death, namely that the deceased in his drunken state dived into the pond to swim and unfortunately got drowned. He submitted that even though P.W.3 said the police were not satisfied with that explanation, they did not even investigate the explanation and no evidence was adduced to dislodge it. He submitted that on the contrary, the evidence of intoxication was corroborated by P.W.1 who testified that he observed that “appellants were drunk and were malingering. One of them is holding a piya piya bottle.” Counsel submitted that, with the explanation offered by the appellant regarding how the deceased met his death, the burden imposed on the appellant to proffer an explanation was adequately discharged and the burden shifted to the respondent to prove its case beyond reasonable doubt that it was indeed the accused that caused the death of the deceased. That burden, he submitted, respondent failed to discharge so the doctrine of last seen was not available to be applied and the appellant should have been acquitted.
On issue 3, learned counsel submitted that the lower Court failed to consider exculpatory evidence contained in the two statements (Exhibits P1 and P2) appellant made to police regarding the circumstances of the deceased’s death, namely, that the deceased dived into the pond on his own accord in his drunken state to take a swim and drowned in the process. That is as opposed to the charge that states that he was strangled and pushed into the water by appellant and his co-accused. Learned counsel repeated his earlier arguments that the evidence of PW4 that there were eyewitnesses to the offence supported the said explanation of appellant so the lower Court’s failure to properly evaluate appellant’s statements in arriving at his conclusion that appellant was responsible for the death of the deceased was unjustifiable and caused serious miscarriage of justice thus justifying the intervention of this Court in quashing the verdict of the lower Court convicting appellant.
Respondent’s arguments: Huwaila M. ibrahim Esq. for Respondent, in arguing the single issue she framed, submitted that all the ingredients of the offences of culpable homicide and conspiracy to commit that offence were proved by the prosecution from what counsel called the ‘circumstantial evidence’ of P.W.1. Citing State v. Raphael Sunday Ifiok (2019) LPELR-46943 (SC), learned counsel submitted that among the three methods of proof of criminal matters, namely eyewitness witness, confessional statement and circumstantial evidence, circumstantial evidence is the best and most reliable. Counsel argued that even if one were to discountenance the evidence of P.W. 2, 3 and 4, the verdict of the lower Court convicting appellant and his co-accused person would stand on the weight of the circumstantial evidence given by P.W.1 against them, particularly given the fact that appellant and his co-accused person refused to tell P.W.1 the whereabouts of the deceased even when he demanded of it from them and were rather were busy trying to steal the deceased’s motorcycle, which counsel submitted also confirms the fact of conspiracy between them. Counsel also supported the trial Judge’s reliance of the doctrine of last seen in convicting the appellant.
On the argument of the appellant’s counsel regarding the prosecution’s failure to call vital witnesses, learned counsel submitted that the arrest made by P.W.4 of the State C.I.D. is not conclusive until after the advice of the Ministry of Justice; that that was why all the ‘speculated witnesses’ raised by the appellant, as Respondent’s counsel put it, were not on the Prosecution’s List of witnesses. Learned counsel on behalf of Respondent submitted that on the basis of the foregoing arguments, the cases cited by appellant’s counsel on the prosecution’s duty to call vital witnesses and effect of failure to do so go to no issue; that if anything, it was appellant and his co-accused that raised the issue that they were with other persons in trying to rescue the deceased. More so, counsel submitted, appellant and his co-accused were even approbating and reprobating when they denied knowing each other. Learned counsel concluded by submitting that the evidence of one single witness if cogent and reliable is enough to base conviction on and cited the cases of Ehimiyein v. The State (2017) ALL FWLR (PT 868) 728 at 734 and Esene v. The State (2017) ALL FWLR (PT 910) 338 at 345 S.C. P.W.1’s evidence, he said, met that benchmark so the judgment of the lower Court convicting the appellant as charged was in order.
Mr. Oredola for the appellant in Appellant’s Reply Brief submitted that while it is conceded that circumstantial evidence is one of three ways of determining the guilt of an accused person, such evidence to sustain conviction must be compelling and lead to no other conclusion than that the accused person, in this case the appellant, and no one else caused the death of the deceased. Counsel cited the case of State v. Sunday (2019) LPELR-46943 (SC) p33-34 in support of that proposition and submitted that the evidence of P.W.1 who admitted under cross-examination that he did not know anything about the death of the deceased cannot qualify for that standard.
On Respondent’s counsel’s reliance on the trial Court’s reasoning of appellant denying knowing the deceased, as against his statement to the police Exhibits P1 and P3, learned counsel submitted that the fact that an accused person lied in Court or approbated and reprobated is not proof of his guilt. In support of that, counsel first cited the decision of the apex Court in Agbo v. State (2006) 1 SC (Pt. 11) 73 at 79 and dicta of Ikongbeh, JCA, of blessed memory in Ogidi v. State (2003) LPELR-10152 at p. 63-54.
Resolution of issue(s)
It appears to me that the sole issue formulated by the respondent sufficiently encompasses all three issues of the appellant and is enough to dispose of this appeal. I shall, therefore, adopt respondent’s said sole issue in determining this appeal even as I shall rephrase it slightly to read:
Whether on the totality of the evidence before the lower Court it was right in convicting appellant of the two offences of culpable homicide punishable with death and conspiracy to commit that offence.
That issue will involve considering all the complaints of Mr. Ordeola for appellant including the applicability or otherwise of the doctrine of last seen relied on by the trial judge in convicting the appellant.
Where a person is charged with a substantive offence and conspiracy charge, the practice is to first consider the main offence, for in most cases the failure of the main offence also sounds the death knell of the conspiracy charge. The substantive offence in this case is culpable homicide punishable with death. I have earlier reproduced it in this judgment. It charges appellant and one Muhammad Abdullahi with causing the death of the deceased Abubakar Shuaibu by strangulating him in the neck and pushing him into the water to drown, an offence punishable under Section 221 of the Penal Code (Cap 105) Laws of Kano State of Nigeria 1999. It is respondent’s bounden duty as the prosecution and the one asserting to prove beyond reasonable this charge as laid to secure conviction: this is what is required of it by Section 135 of the Evidence Act 2011.
The 1999 Constitution of this country in its Section 36 (5) further drives that point home by stating that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. What is more, Section 36(6) of the same 1999 Constitution states that “Every person who is charged with a criminal offence shall be entitled to:
(a) be informed promptly in the language that he understands and in detail of the nature of the offence. (Emphasis mine)
It needs no gainsaying that it is in an attempt to comply with the above provisions of the law regarding the details of the offence alleged committed by appellant that respondent at the lower Court, in framing its charge against appellant and his co–accused, stated, expressly, that they not only committed culpable homicide punishable with death but that they did so by strangulating the deceased and pushed him into the water. The ingredients of the offence of culpable homicide punishable with death are (1) that the death of a human being has taken place, (2) that such death was caused by the accused person and (3) that the act of the appellant that caused death was intentional or appellant knew that death would be the probable consequence of his act. The prosecution must prove these ingredients conjunctively and beyond reasonable doubt to secure conviction: see Ahmed v. State (2018) LPELR-46606 (CA). It can do that through any of three means, namely by direct evidence of eyewitness to the offence; by confessional statements of the accused person admitting the offence, or by circumstantial evidence: see State v. Raphael Sunday Ifiok (2019) LPELR-46943(SC).
Here, the fact of the death of the deceased Abubakar Shuaibu is not an issue, for even appellant in paragraph 4.1.4 of his main Brief of Argument conceded that fact when he said that “the Respondent was able to establish the death of one Abubakar Shuaibu.” The only sticky point, and a very sticky one for that matter, is whether respondent was also able to establish that it was the act of appellant that caused the death of the said deceased, a point appellant has always denied and still denies in this appeal. He stated so unequivocally in the same paragraph 4.1.4 of his main Brief of Argument that:
“My lords, while “the Respondent was able to establish the death of one Abubakar Shuaibu (‘the deceased’) had occurred, it failed woefully to establish that the death of the deceased was a homicide or the precise cause of death of the deceased person. The evidence adduced by the Respondent failed to show that the appellant was responsible or caused the death of the deceased.”
That is what this appeal is all about: Did respondent prove beyond reasonable doubt at the lower Court that he (appellant) was responsible for the death of the deceased and the trial Judge right in finding that it did?
As already pointed out, the trial Judge held appellant and his co-accused responsible on the criminal law doctrine of last seen. Now, what is the meaning of that doctrine? In Oladapo v. State (2020) 1 SCNJ 91; (2020) 7 NWLR (Pt. 1723) 238 at 251 Abba Aji JSC explained it thus:
“This doctrine [of last seen] means that the law always presumes that the person last seen with the deceased is presumed to be responsible for his death, provided the circumstantial evidence is overwhelming and leads to no other person or persons.” (Italics mine)
In the same case Nweze, J.S.C., at p.255 NWLR also explained it thus:
“It [the doctrine of last seen] creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death. ….. Thus, where an accused person was the last to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death. In the absence of such an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that he (the accused person) killed the deceased.”
It must be noted, however, that the doctrine of last seen itself is nothing but circumstantial evidence, even as its effect is to shift to the accused person the burden of rebutting by acceptable explanation the presumption, which the doctrine evokes, that he who was last seen with a deceased person prior to his death is his killer. For confirmation that the doctrine is simply what in law is called circumstantial evidence, see again Oladapo v. The State (supra), line 36-37 of page 106-17 of 2020 SCNJ and paragraph D-H of page 251 (NWLR) where it was said by Abba Aji, JSC, that:
“As circumstantial as the doctrine of last seen may be …..”
And later that:
“The respondent at the trial relied on circumstantial evidence especially the doctrine of last seen.”
I think Kekere-Ekun, J.C.A. (as she then was) in Alatishe vs. The State (2013) ALL FWLR (Pt. 686) 552 at 575 even drove the point further home when Her Lordship said with even a further caution on the application of the doctrine thus:
“Circumstantial evidence to ground the conclusion that a person last seen with a deceased is his killer must be so compelling that it leads to no other conclusion and leaves no room for acquittal.”
The long and short of all the foregoing is that for the doctrine of last seen, a rebuttable one for that matter, to apply, it must be shown that appellant was the last person to have been seen with the deceased person before his death; (2) that appellant could not give an explanation of how the deceased met his death, and (3) that the circumstantial evidence against the appellant is so compelling that it leaves no room for acquittal. The doctrine thus assumes, so to speak, that the prosecution itself does not have direct evidence of who and what killed the deceased and so presumes that since the suspect or accused person was the last person to be seen with him before his death, he is his killer unless he can offer an acceptable explanation of how the deceased met his death. That necessarily means that, where it is shown that there were other people with the deceased person besides the accused at the time of his death, or where there were eyewitnesses to such death, the doctrine would not apply. So the relevant questions here are:
“(1) Did the evidence on record not show that there were no other persons besides appellant and his co-accused at the time of the deceased’s death and if there were, was the doctrine of last seen still applicable to the case?
(2) Does the circumstantial evidence adduced before the Court by the respondent point unequivocally to the guilt of the appellant and so support the lower Court’s reasoning that he killed the deceased and so responsible for his homicide?”
As regards the first of these questions, it appears to me from the records of appeal (and I am in complete agreement with Mr. Oredola for appellant on his contention) that contrary to the finding of the trial Judge, even from the side of the respondent, there were other eyewitnesses besides the appellant and his co-accused to the manner of the death of the deceased. That is shown first by the following evidence of P.W.4:
“We arrested five people in contention (sic) with this case. The remaining three suspect (sic) were met at scene so they were taken as eyewitnesses. I forgot the names and were released on bail. They are eye witnessed (sic) in this case. ….. I did not see the corpse of the deceased but I saw the picture. The corpse looks like someone who was strangled and drowned in the river. I got this information [from] eyewitness.”
In further support of PW4’s assertion above, the prosecution even listed among its witness in its Proof of Evidence one Lawal Garzali and remarked thus in front of his name:
“To inform the Court that he is an eye witness to all that happened between the accused and the deceased.”
See page 2 of the records.
In these circumstances, the criminal doctrine of last seen would not apply, for its very doctrinal basis, namely, that appellant and his co-accused were alone with the deceased at the time of his death and so they alone are in a position to explain the circumstances his deceased death would not arise.
Incidentally, too, the prosecution did not call any of its said ‘eyewitnesses’ to the offence; not even Lawal Garzali it cited in its Proof of Evidence. Doctrine of last seen, I therefore hold and find, was inapplicable to this case and the trial Judge wrong in applying it as a basis for convicting appellant.
I am also in agreement with Mr. Oredola for appellant that the evidence of the said ‘eyewitnesses’ and particularly Lawal Garzali identified and listed by the prosecution was vital to prove of the respondent’s case that appellant strangulated and pushed the deceased into the water to drown. The evidence of those ‘eyewitnesses’ is not only vital and crucial in that it would have also helped to puncture the explanation by appellant as confirmed by both P.W3 and 4 that the deceased leaped into the water by himself in his drunken state and got drowned. Yes, appellant who is also said in his statement to police to have mentioned names of eyewitnesses to support ‘his’ said version of how the deceased met his end (he repudiated that statement in his defence at the trial) did not also call any of the said eyewitnesses to support his version, nevertheless, the position of our law is that he is presumed innocent of the two charges and it is the duty of the respondent to prove his guilt beyond reasonable doubt. Any omission in that regard will therefore fall against the Respondent who had the onus to discharge and not against the appellant. What is more, it is settled law that where a particular witness is necessary to be called to prove a disputed crucial fact in a criminal case such witness must be called by the prosecution if not its case would be deemed not proved: see Omogodo v. The State (1981) NSCC 119 at 128-129. That is the position of the case of the prosecution which the lower Court wrongly found proved on clearly inapplicable doctrine of last seen. Its decision was perverse even on this score alone.
But even leaving aside doctrine of last seen, it seems clear to me that, contrary to the position of the trial Judge, the entire circumstantial evidence respondent relied on fell far short of the standard required to secure conviction in this case. While it is settled law that the Court can properly rely on circumstantial evidence in proof of a charge, it is also settled that great care must be taken by the Court in relying on circumstantial evidence as the basis for conviction. Circumstantial evidence must be narrowly examined to avoid the possibility of fabrication to cast aspersion on innocent persons. Circumstantial evidence must not only be cogent, complete and unequivocal, it must be compelling and lead to the irresistible conclusion that the accused and no else is offender. Circumstantial must have the exactitude of mathematics to be relied on. The facts brought out by circumstantial evidence must be incompatible with innocence of the accused and incapable of explanation of any other reasonable hypothesis than that of his guilt and any reasonable doubt in that regard must be resolved in favour of the accused: see Igabele v. The State (2006) LPELR-1441 (SC), pages 30, 37 and 44.
Sadly, this case seems to be a classic one of fabrication of circumstantial evidence by the prosecution to undo the appellant. I shall demonstrate it immediately. In his evidence before the lower Court, the police officer of Mariri Police Station (P.W.3) who was involved in the search and recovery of the corpse of the deceased from the water where it was drowned, in a clear bid to give the impression that the deceased was pushed into the water by the appellant and his co-accused as he claimed he suspected and was also alleged in the charge, told the lower Court the following at p.19 of the records regarding what the deceased was wearing when his body was eventually recovered from the river and what he made of it:
“If he [the deceased] really entered the water to swim he would have pulled off his clothes….. That is the reason why we are not satisfied with the information the two accused persons gave us.
…
“At the time we recorded (sic: recovered) the remaining (sic: remains) of the deceased, he was wearing a shirt and trouser. Yes, the pictures of the deceased was (sic) taken.”
I have earlier remarked that the said photographs taken by the police of the body of the deceased at the time it was recovered were initially held back by the prosecution and it was only through the dexterity of the defence counsel during cross-examination of P.W.4 that they were recovered from the prosecution and tendered in evidence, again through the defence counsel Mr Alhassan Adam, as Exhibits P5 and P5a. Instructively, both photographs which form part of the records of the lower Court transmitted to this Court show that the body of the deceased was recovered with him putting on only a pair of swimming trunks/boxers and not shirts and trousers as P.W.3 claimed. That much is evident from Exhibit P5 showing the deceased being brought out straight from the river with half of his legs still in the water. It shows him as putting on only swimming trunks and not ‘shirts and trousers’ as claimed by P.W.3 who also added that the said phantom shirt and trousers the deceased was putting on when he was recovered suggested that he was pushed into the river by appellant and his co-accused person, as he ought to have pulled of his shirts and trousers before leaping into the water if the version of appellant that he leaped into the water by himself was correct. It is thus obvious that P.W.3 merely tried frantically to fabricate a story and circumstances to rope in appellant and his co-accused in line with his unfounded belief and the charge as framed before the Court.
If anything, Exhibit P5 showing the deceased dressed only in swimming trunks upon his recovery from the water supports appellant and his co-accused person’s explanation to the police (P.W.3 and 4) that the deceased jumped into the water by himself to bath, possibly in his drunken state, and drowned. That conclusion even flows from the very hypothesis of P.W.3 that if the deceased jumped into the water by himself as claimed by appellant and his co-accused he would have ‘pulled off his clothes”. Exhibit P5 confirms that the deceased in fact pulled off his clothes and was only in swimming gear in the form of swimming trunks when he fell into the water!
Put simply, the circumstantial evidence in the form of the photographs, particularly Exhibit P5, taken by the same prosecution of the state of the dead body of the deceased at the time of his recovery from the pond, which this Court as an appellate Court also has the power to evaluate and reach on its own decision (see Alhaji Aminu Ishola v. Union Bank of Nigeria Ltd (2005) LPELR-1550(SC) p.20-21; Okpiri v. Jonah (1961) 1 SCNLR 174; Bernard Amasike v. The Registrar General, Corporate Affairs Commission & Anor (2005) LPELR-5407 (CA) p.56-57) not only punctures the story of the prosecution and its witnesses and the charge of homicide laid against appellant and his co-accused by the Respondent; it supports the explanation of appellant and his co-accused to the police that the deceased dived into the water by himself and drowned. At any rate, the law is that any reasonable doubt in circumstantial evidence must be resolved in favour of the accused: see Igabele v. The State (2006) LPELR-1441 (SC), pages 30, 37.
That appellant and his co-accused person in their defence at the trial denied their statements, Exhibits P1, 2 and 3 and 4, to the police, which fact the trial made quite heavy weather of in rejecting their explanation of the circumstances of the deceased’s death and convicting them, is also of no avail to the respondent. That an accused person lied in the witness box or even has, or had, a bad image is also no proof of his guilt: see Omogodo v. State (1981) NSCC 119 at 128. In fact, Ikongbeh, J.C.A., of blessed memory could not have put the position of the law better when he said in Ogidi v. State (2003) LPELR-10152 at p. 63-54 that:
“The law is well settled that the mere fact a person lied is not proof that he is guilty. As Hurley, C.J. (Northern Nigeria) pointed out in Haruna & Anor v. Police (1967) NMLR 145 at 153, though a man may lie because he is guilty, he may as well lie because he is stupid or afraid or both and whether he is guilty or not.”
That appellant and his co-accused tried to break and take away the motorcycle of the deceased upon his death (there is even no concrete that the said motorcycle belonged to the deceased) is also no conclusive proof that they killed him as suggested by the prosecution and the lower Court. That is even more so when account is taken of P.W.1’s evidence that appellant and his co-accused were drunk at that point. At any rate, much as the attempt to remove that motorcycle could support a motive by appellant and his co-accused person to kill the deceased because of his motorcycle, assuming the evidence supported that reasoning which is not the case, it is also just as possible that they simply wanted to cash in on the death of the deceased to steal his motorcycle, just as it could be that they were simply looking for a fast way to run away from the scene of his death. Such attempt to run away even from scene of crime, it has been said, does not by itself amount to proof that the person so fleeing committed the offence he is fleeing from as it is normal and in keeping with the human instinct of self-preservation for persons, guilty or not, to flee scene of crime: See Dosunmu v. The State (1986) 5 NWLR (PT 43) 658 at 662; Queen v. Akinsanya (1961) WRNLR 222 at 225.
At any rate, evidence based on circumstances must be interpreted narrowly and any doubt in it should be resolved in favour of the accused: Igabele v. The State supra. That is just as it is also the law that where evidence is capable of two interpretations, as in this case, the interpretation favourable to the accused person must be preferred: see Omoregie v. State (2008) 35 WRN 181 at 190.
I shall also say that in the absence of eyewitness evidence to the alleged strangulation it cannot be seriously asserted that it is possible to ascertain, without medical evidence, that the deceased was strangulated. Except where the deceased was seen by eyewitnesses to have collapsed and died immediately from the strangulation rope of the suspect on his neck, whether or not a person died from strangulation is a scientific fact which can only be proved by persons skilled in that area, namely medical doctors and even more specifically pathologists: see Section 68 of the Evidence Act 2011; Endurance Alison v. State (2017) LPELR-42286 (CA) 23-24; Ahmed v. State (2001) 18 NWLR (PT 746) 622. Incidentally, without that scientific evidence establishing death by strangulation as charged, the issue of whether it is the act of the appellant that caused the death of the deceased does not even arise. See again Ahmed v. The State (supra) at p.641-642 where Ayoola JSC delivering leading judgment had this to say:
“Where a person is charged with an offence of culpable homicide the sequence in inquiry is whether the person alleged killed is dead, the cause of his death and whether any act of the accused as described in Section 220 is the cause of death.”
…
“In a charge of culpable homicide if the cause of death has not been proved it is futile and illogical to proceed to consider whether it was the accused who caused the death. The primary enquiry into the cause of death of a person is an enquiry into the biological cause of death. The question at that stage is what caused the death and not who. When what caused the death has been ascertained the question who caused the death is one of causal connection between the death of the accused and the biological cause of death.” (Emphasis mine)
No post-mortem report was tendered to ascertain if the deceased actually died from strangulation. In fact, the prosecution seems to have simply founded its assertion of strangulation of the deceased and pushing him into water to drown by the appellant on the speculative evidence of the Police officer from State CID, P.W4 contained at page 22 of the records when he said: “I did not see the corpse of the deceased but I saw the picture. The corpse look(s) like someone who was strangled and drowned in the river.” A finding that a deceased person was strangulated let alone one that could and did result in a conviction for homicide punishable with death cannot be founded on such speculative evidence of a policeman who did not even claim to have had any training as a physician. Like Ayoola, J.S.C., again said in Ahmed v. State supra at p.650:
“Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.” (Italics mine)
For all of these reasons, I am of the fixed opinion that respondent did not prove that it is the act of appellant that caused the death of the deceased Abubakar Shuaibu and so, did not prove its charges of culpable homicide punishable with death and conspiracy to commit that offence against the appellant and the lower Court wrong in convicting them as charged.
This appeal is therefore allowed and the judgment of the High Court of Kano State of 9th May 2019 in Charge K/107C/2016 delivered by Nasiru Saminu J., convicting the appellant, including the sentence of death imposed on the appellant, is hereby quashed/set aside. In their place a verdict acquitting and discharging appellant Mohammed Abdullahi of both charges of conspiracy punishable under Section 97 of the Penal Code Laws of Kano State of Nigeria and Culpable Homicide punishable with death punishable under Section 221 of the Penal Code Laws of Kano State of Nigeria is hereby entered.
It is further ordered that the appellant be released from custody/prison without further delay.
NOTE:
This appeal having been argued on 31/5/2022, judgment, ordinarily ought to have been given not later than 31st August 2022. Unfortunately, most of that period fell within the Annual Vacation of this Court which started from the 19th of July and only ended on 11th September 2022, during which period I also had to attend a Court-sponsored Symposium abroad, in addition to my already very heavy workload of several other earlier pending judgments that I carried into and managed to deliver during the vacation, hence the little delay in delivery of this judgment.
ITA GEORGE MBABA, J.C.A.: A draft of the leading judgment just delivered by my Learned brother, B. M. Ugo, JCA, was made available to me, ahead of time. My learned brother has, dutifully identified and discussed all the pertinent issues in the appeal, admirably, and I agree, completely, with him, that the appeal is meritorious.
The trial Judge fell into grave error, and hasty conclusion when he held that the appellant (with the co-accused) caused the death of the deceased, relying on the doctrine of last seen, whereas the said doctrine could not apply in the case, in view of the facts that:
(1) The evidence of PW4 had alleged that there were eye witnesses (including one Lawal Garzali), who saw all that happened between the Accused persons and the deceased (before he died), which led to his death. Such eye witness(es) needed to be called, being vital witness(es), to assist the Court to determine what/who, actually, caused the death of the deceased.
And failure to call such vital eyewitness was fatal to the case of the prosecution, and the presumption of law in Section 167(d) of the Evidence Act, 2011 applied, that the prosecution, deliberately, withheld the evidence, because same would expose the falsity of its position.”
See the case of Azubuike vs The State (2019) LPELR-48238 CA, where it was held:
“It is difficult to understand why the prosecution did not call the evidence of the said witness, who saw what happened when the deceased was shot and saw the assailants. I think failure to produce the vital eye witness to give evidence at the trial can only mean that the Respondent (Prosecution) had something to hide and were not comfortable to call her to testify. They (Prosecution) rather depended on Pw1, PW2 and PW3, who came to Court to speculate on the incident, and opted to use the opportunity to implicate their immediate local enemies or opponents, those who recently had land dispute and altercation with the deceased, and they labored to give evidence to fix the Appellant at the scene of crime, even when the eye witness, who saw the shooting had said she saw the two boys who shot the husband, but did not know them!”
See also Adamu Vs The State (2019) LPELR-46902 (SC), where it was held:
“From the record, three witnesses were listed including one Benjamin James, stated as only eye witness at the scene of crime according to the evidence of PWI but only PW1 testified. It is true that prosecution is not obliged to call all listed witnesses nor the need for a host of witnesses to get a conviction but where there is a particular vital witness whose evidence is very crucial and important to the case of the prosecution in proof of the guilt of the accused, then such a witness must be called as failure to do so would occasion a fatality in proof of the charge as it would produce the presumption of withholding evidence suggestive of the fact that if that evidence were produced it would work against the prosecution and favour the accused. See Section 167 (d) of the Evidence Act, 2011. Stated another way is that the vital witness is that witness whose evidence is fundamental as it determines the case One way or the other and failure to call that vital witness by the prosecution is fatal to its case. See Ogudo v State (2011) 18 NWLR (PT.1278) 1 at 31, State v Azeez (2008) 14 NWLR (Pt.1108).”
Thus, the doctrine of last seen in criminal trial, cannot be invoked, where there is evidence of an eye witness of the death, and the cause of death of the deceased, outside of the Accused person(s).
Secondly, where the charge alleged that the deceased was strangulated and pushed into the pond to drown, the ingredients of such charge must be proved, strictly, to establish the offence, and I think that can only be done by medical evidence (autopsy report), establishing the strangulation, in the absence of eye witness account.
Of course, the charge, having asserted strongly, that the deceased was strangulated before being pushed into the water to drown, that fact needed to be proved, separately, before any invocation of doctrine of last seen could be resorted to. See Okoro vs State (1988) LPELR-2494 SC:
“…where death does not occur contemporaneously with or within a short time of the infliction of wound on the deceased, to enable the Court draw an inference that the deceased died as a result of the wound so inflicted, medical evidence establishing that the deceased’s death was caused by such wound becomes indispensable. ” (dissenting) per UWAIS, JSC
I too allow the appeal and set aside the conviction and sentence of the Appellant. I abide by other consequential orders in the lead judgment.
USMAN ALHAJI MUSALE, J.C.A.: My learned brother, BOLOUKUROMO MOSES UGO, JCA obliged me with a draft of the leading judgment delivered in this appeal. I entirely agree with the judgment and the way the issues were treated by My Lord. I have nothing more to add. I abide by the conclusion reached therein.
Appearances:
Habeeb A. Oredola, Esq. For Appellant(s)
Huwaila Mohammad Ibrahim, Esq. For Respondent(s)