ABDULLAHI v. STATE
(2020)LCN/14399(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Tuesday, June 30, 2020
CA/KN/23C/2018
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
UZAIFA ABDULLAHI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE INGREDIENTS OF THE OFFENCE OF VOLUNTARILY CAUSING HURT
The ingredients of the offence of voluntarily causing hurt under Section 248 of the Penal Code which the Prosecution must prove to succeed are:
(a) that the accused caused by his act bodily pain, disease or infirmity to the complainant;
(b) that he did so intentionally or with the knowledge that the act would cause hurt;
(c) that the act was unprovoked;
(d) that the accused caused the bodily harm e.t.c. by means of an instrument for shooting, stabbing or cutting or by an instrument which used as a weapon, is likely to cause death. PER WAMBAI, J.C.A.
THE IMPORTANCE OR PROBATIVE VALUE OF THE EVIDENCE OF AN EYEWITNESS
The importance or probative value of the evidence of an eye witness cannot be overemphasized in establishing the guilt of an accused person provided that the accused is properly identified or his identity is not in issue. Evidence of an eye witness is a reliable and weighty evidence to ground conviction. Provided that the witness is a witness of truth, see OYECHE VS. THE STATE (2006) ALL FWLR (PT. 305) 703 AT 720.
Further emphasizing on the strength of eye witness evidence, His lordship Rhodes Vivor JSC in UDO VS. THE STATE (2018) LPELR– 43707 (SC), cited by the Respondent’s Counsel stated thus:
“Eye witness evidence is always reliable evidence provided the witness is telling the truth, such evidence is on what the witness saw. It almost impossible to dislodge such evidence”. PER WAMBAI, J.C.A.
INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH
For culpable homicide punishable with death, the prosecution must prove the following ingredients beyond reasonable doubt to succeed. These are :
i. that the death of a human being took place;
ii. that such death was caused by the accused;
iii. that the act of the accused caused the death with the intention of causing death or that the accused knew that death would be the probable consequence of his act.
See MAIYAKI VS. THE STATE (2008) 15 NWLR (PT. 1109) 173; MAMMAN VS. THE STATE (2015) LPELR – 25963 (CA).
It is needless to emphasize that all these ingredients must co-exist and each be proved beyond reasonable doubt for the prosecution to secure or sustain a conviction. See GALADIMA VS. THE STATE (2017) LPELR – 41909 (SC) and also ALI VS THE STATE (2015 LPELR – 24711 (SC) by the same Court; UBANI VS. THE STATE (2003) 18 NWLR (PT. 851 24;ADAVA VS. THE STATE (2006) 9 NWLR (PT. 984) 155. PER WAMBAI, J.C.A.
HOW THE INTENTION TO COMMIT AN OFFECNE IS PROVEN
How then is intention proved?
A man’s intention is usually very difficult if not impossible to prove, for even the devil as crafty as it is, has not been able to know or read a man’s intention. A man’s intention, invariably can only be inferred from his conduct and surrounding circumstances within which he acts. It is from the manifestation of his conduct that his intention can be ascertained. This statement has the backing of a litany of judicial decisions. See for example AREBAMEN VS. THE STATE (1972) 7 NSCC 194, 200; KOLO VS. COMMISSIONER OF POLICE (2017) LPELR – 42577 (SC).
This is why the law presumes that a man intends the natural and probable consequence of his act and is deemed to know the natural consequence of his action. See GARBA & ORS. VS. THE STATE (2000) 6 NWLR (PT. 661) 379; STATE VS. JOHN (2013) LPELR – 20590 (SC). PER WAMBAI, J.C.A.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of Hon. Justice Ibrahim Musa Karaye of the Kano State High Court delivered on 3rd October 2017 in Charge No. K/07C/2016. The Appellant was the subject of charge on account of what happened to MA’ARUF HARUNA and UMAR ZAKARIYYA. What happened to them?
According to the 3 count charge of Criminal Conspiracy, causing hurt and culpable homicide punishable under Sections 97, 248 and 221 (b) of the Penal Code on or about the 8th day of May, 2015, the Appellant together with Adamu Auwalu and Abba Abdullahi all of Unguwa Uku Quarters agreed to cause and voluntarily did cause hurt to Ma’aruf Haruna by stabbing him with a knife and also stabbed Umar Zakariyya with a knife on his head which resulted in his death knowing that death would be the probable consequence of the act.
The Appellant pleaded not guilty to the charge. The prosecution called 7 witnesses and tendered 7 Exhibits. The Appellant was the sole witness for the defence and tendered no Exhibit. At the close of trial, written addresses were filed. After reviewing the evidence and considering
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the written addresses of Counsel, the learned trial judge discharged and acquitted the Appellant on count one of Criminal Conspiracy but returned a verdict of “guilty” on counts 2 and 3 (of causing hurt and culpable homicide punishable with death respectively) and accordingly, sentenced him to one month imprisonment without option fine for count 2 and to death by hanging for count 3.
Upset by the conviction and sentence, the Appellant commenced this appeal by a Notice of Appeal filed on 21/02/2017 attacking the judgment on 4 grounds.
In the Appellant’s brief of argument filed on 31/05/2018 but deemed on 10/10/2018, 3 issues were submitted for determination to wit:
1. Whether the judgment of the trial Court convicting the Appellant ought not to be set aside having been based on pieces of evidence riddled with glaring inconsistent testimonies of the prosecution witnesses.
2. Whether the judgment of the trial Court ought not to be set aside having been based on wrongfully admitted Exhibits B1 – B4 to convict the Appellant in the instant appeal.
3. WHETHER, the denial of the Appellant’s right to cross examine
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(sic) the PW4 did not vitiate the proceedings.
The Respondent’s brief of argument filed on 27/03/2019 and deemed on the same date was settled by the Hon. Attorney General of Kano State Dr. Ibrahim Muktar, together with 5 other Counsel from the Ministry, wherein two issues were distilled for determination. These are:
1. Whether the prosecution has proved its case beyond reasonable doubt regards being had to the cogent pieces of evidence adduced at the trial Court?
2. Whether the Appellant was denied the right to fair hearing at the trial Court and same has occasioned miscarriage of justice.
The Hon. Attorney General also filed a Notice of Preliminary Objection on 27/03/2019 challenging the competence of the appeal to which the Appellant’s learned Counsel, Tajudeen O. Oladoja Esq. (Life Bencher) filed a reply brief on 31/05/2018 but deemed on 18/10/2018.
At the hearing of the appeal on 04/06/2020 the Hon. Attorney General withdrew the objection on grounds 2 and 3 of the appeal but adopted his argument on ground 4 of the grounds of appeal. Consequently argument on grounds 2 and 3 running through pages 3 – 9 of the brief
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were struck out but the argument on ground 4 contained from last part of page 9 to page 11 was adopted and responded to by the Appellant’s Counsel before arguing the main appeal.
It is apt to first deal with the Preliminary Objection before delving into the issues deserving of consideration in the appeal, if necessary. The wisdom being that a successful Preliminary Objection may terminate the appeal in limine. See TAMBO LEATHER WORKS LTD. VS. ABBEY (1998) 12 NWLR (PT. 579) 548; SKYMIT MOTORS LTD. VS. UBA PLC (2012) 10 NWLR (PT. 1309) 491.
THE PRELIMINARY OBJECTION
RESPONDENT’S ARGUMENT
The objection to ground 4 of the grounds of appeal is that the complaint of the denial of fair hearing therein raised being a fresh issue which cannot be traced anywhere in the record, requires leave of either the Court below or this Court to raise as held in OSUN STATE GOVT. VS. DALAMI NIG. LTD (2007) LPELR – 2817 (SC); that the failure to seek and obtain the leave renders the ground incompetent and liable to be struck out urging us to do so, as the apex Court did in the case of ANTHONY NWACHUKWU VS. THE STATE (2007) LPELR – 8075 (SC).
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The Appellant’s response is that the complaint in ground 4 is anchored on violation of the Appellant’s fundamental right to fair hearing guaranteed by Section 36(6) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which exists to all citizens, the breach of which nullifies the hearing, relying on the cases of FRANCIS VS. OSUNKWO (2000) 7 NWLR (PT. 666) 564, 578 PARA E.
Ground 4 together with its particulars which ignited the objection reads:
GROUND 4
That the learned trial judge erred in law by denying the Appellant a right to fair hearing which thereby led to miscarriage of justice.
PARTICULARS
The Appellant was not given opportunity to cross-examine PW4.
The complaint in ground 4 is that of denial of the Appellant’s right to fair hearing during trial by reason of the refusal to allow him cross-examine PW4 in the course of trial. A ground of appeal which complains of violation of Appellant’s fundamental human right to fair hearing requires no leave to file. BANBOWA VS. NARBA LOVELEEN INDUSTRIES LTD. VS. KOMOLAFE (2012) 14 NWLR (PT. 1375) 542 AT 266.
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As rightly submitted by the Appellant’s Counsel, fair hearing is a Constitutional right guaranteed by Section 36 (6) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Therefore, a complaint of denial of fair hearing in contravention of the Constitutional Provision in the course of trial is a ground of law which requires no prior leave of Court. UGWU VS. THE STATE (2013) LPELR – 20177 (SC); OGWEH VS. FRN (2015) LPELR – 25784 (CA).
The Appellant’s complaint in ground 4 being that by reason of the failure of the trial Court to allow him cross-examine PW4, his fundamental right to fair hearing had been violated, I am of the humble view fortified by judicial authorities that there was no need to seek and obtain leave of Court to incorporate his complaint into the appeal as he did in Ground 4. Ground 4 is therefore competent and the Preliminary Objection fails, and is hereby dismissed.
However, Ground 1 from which no issue was formulated is deemed abandoned and is hereby struck out – EHUWA VS. INEC & ORS. (2006) LPELR – 1056 (SC).
The hurdle of the Preliminary Objection having been successfully
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crossed paving the way for the determination of the merits of the appeal, I shall determine the appeal on two issues culled from the Appellant’s 3 issues and the Respondent’s two issues, re-cast and in the following order, to wit:
1. Whether the Appellant was denied fair hearing.
2. Whether from the properly admissible evidence before the Court, the prosecution adduced cogent and credible evidence to warrant the conviction and sentence of the Appellant.
ISSUE NO. I
Whether the judgment of the trial Court convicting the Appellant ought not to be set aside having been based on pieces of evidence riddled with glaring inconsistent testimonies of the prosecution witnesses.
In arguing this issue learned Counsel to the Appellant drew our attention to page 17 of the record where the evidence of PW4 was recorded and concluded but without being afforded an opportunity to cross-examine the PW4 and contended that the failure infringed on the Appellant’s right to fair hearing entrenched in Section 36 (6) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as held by Ogwugbu JSC in the case of OGBOH & 1 OR. VS. FRN (citation not provided).
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The learned Counsel for the Respondent, the Hon. Attorney General holds a different view from the Appellant’s and posited that the Appellant’s argument is not borne out of the record of proceedings on what transpired in Court as reflected at pages 16 – 17 of the record insisting that the Appellant who was represented by Counsel was denied the opportunity to cross-examine the PW4, the reason for which objection was not raised at the trial which right having been waived, cannot be raised on appeal. According to him, it was after the cross-examination of PW4 that the Respondent was asked to re-examine the witness. He submitted that the Court and Parties are bound by the record as the only authentic indication of what took place in Court – DANTIYE & ANOR. VS. KANYA & ORS. (2008) LPELR – 4021 (CA); FAWEHINMI CONSTRUCTION CO. LTD. VS. OAU (1998) LPELR – 1256 (SC) and cannot go outside it to proffer any argument – MAGAJI VS. NIG. ARMY (2008) LPELR – 1814 (SC). He further contended that assuming the Appellant was denied cross-examination of PW4, the relevant question to
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ask is not whether injustice has been done but whether he had an opportunity to be heard. UMEH VS. IWU (2007) 6 NWLR (PT. 1030) 416. And having acquiesced to an irregular procedure, Appellant can no longer complain.
Moreover, he submitted that the question of denial of fair hearing cannot be raised in vain but must be supported with concrete facts CHEVRON (NIG. LTD. VS. LOWAZ & ORS. (2017) LPELR – 42813 (CA). We were urged to resolve the issue in favour of the Respondent against the Appellant.
The undisputed position of the law is that the right to cross-examine witnesses of the adverse party is a fundamental aspect of the right to fair hearing. It is a Constitutional right of a Defendant to be allowed to cross-examine witnesses called by the prosecution. The right to cross-examine the witnesses of the adversary is within the rubic of the right to fair hearing. A denial of the right of cross-examination is a denial of the right to a fair hearing. See EZE VS FRN (2017) LPELR – 42007) (SC).
In giving effect to this statement of Law, this Court in the case of OKEREKE & ANOR. VS. IBE & ORS. (2008) LPELR 4714 (CA) held thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“The right to cross-examine a witness is within the rubic of the right to fair hearing guaranteed under Section 36 (1) of the 1999 Constitution. It is a material ingredient of the right to fair hearing …”
It is therefore safe to say that the right to cross-examination is an integral and inherent right in trial proceedings, and an essential ingredient of the right to fair hearing which cannot be taken away – OGOLO VS. FUBARA (2003) 11 NWLR (PT. 831) 231 AT 262.
Once there is a breach of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived by the Court becomes a nullity. MINISTRY OF LAND & SURVEY, YOLA & ANOR. VS. SANGERE & ANOR. (2018) LPELR – 45986 (CA).
However, the right cross-examination does not postulate forcing or compelling a party to do so. Therefore, the only duty of the Court is to afford parties the opportunity to cross-examine the witnesses of the adversary. The duty does not extend to compelling parties to cross-examine the witnesses of their opponents. If they choose not to do so. A party who is afforded an opportunity but refuses,
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neglects or abandons his right cannot turn round to complain of denial of fair hearing. See CHEVRON NIG. LTD. VS. LOWAZ (Supra).
Now in the instant case, the evidence of PW4 at pages 16 – 17 of the record shows that at the end of his evidence-in-chief, no cross-examination was recorded but “re-examination“ was recorded as “No re-examination”.
The Appellant’s Counsel submitted and I agree with him, that both the Court and parties are bound by the record of appeal and cannot go outside it for anything. Indeed the law is that nothing can be read into or out of the record. It is taken and read the way it is compiled and transmitted to the Appellate Court. Understandably therefore, from the record before us, PW4 was not cross-examined. Can it then be said that the Appellant was denied the right to cross-examine the PW4? I hasten to return a negative answer. This is so because the duty of the Court to afford a party the right of cross-examination does not extend to compelling parties to exercise such right. It is on record that the Appellant was represented by Counsel on the date PW4 testified but neither demanded to
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exercise his client’s right nor raised any objection on record but kept mute. The law precludes the same Appellant from turning around on appeal to complain of denial of right to cross-examine the witness – see CHEVRON NIG. LTD VS. LOWAZ (supra). The right to fair hearing only means giving equal opportunity to parties to present or defend their case. It does not postulate forcing or compelling a party to exercise a right given to him by law. A party represented by Counsel who fails, or neglects to cross-examine or concedes to a procedure which denies him the opportunity to cross examine the witnesses of his adversary, cannot be heard on appeal to complain of denial of fair hearing.
There is nothing on record to show that the Appellant’s Counsel asked but was refused an opportunity to cross-examine PW4. The learned Counsel cannot heap the blame on the Court and seek to vitiate the proceedings on his failure to utilize his right of cross-examination. I therefore resolve this issue against the Appellant.
ISSUE NO. 2
Whether the judgment of the trial Court ought not to be set aside having been based on wrongfully admitted Exhibits
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B1 – B4 to convict the Appellant in the instant appeal.
APPELLANT’S SUBMISSION
Arguing this issue, the learned Appellant’s Counsel restated the law on the unshifting duty on the prosecution to establish the guilt of the accused person by proving conjunctively each and every ingredient of the alleged offence beyond reasonable doubt, citing several authorities including MILLER VS. MINISTER OF PENSIONS (1974) 2 ALL E.R 372. He stated the ingredients of the offence to be proved beyond reasonable doubt and made reference to Section 19 of the Penal Code on the distinction between a “probable” and a “likely” consequence of an act.
The plank of his submission is that the evidence adduced by the prosecution is ridden with material inconsistencies and contradictions and partly hearsay evidence that the prosecution cannot be said to have proved its case beyond reasonable doubt.
In demonstrating the inconsistencies and the hearsay nature of the some aspect of the evidence, learned Counsel went through the evidence of PWs 1 – 7 and submitted that the evidence of PW1 that the Appellant stabbed the deceased
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with a knife on the head; that on realizing that the deceased was cut in the head the two ladies put him down and ran away, are all hearsay evidence because PW1 could not have seen who and what transpired in the moving tricycle after he had gone off to wash his own wounds in the Chemist, and so is the evidence of PW2 who said he also ran away. On the other hand, learned Counsel submitted that the evidence of PW3 (the eye witness) who did not mention the Appellant’s name is in sharp contrast to that of PW2 and wondered how 3 people would hold one white knife and run with it to catch up with fast moving tricycle as described by PW1 and PW2. He also finds a material contradiction between the evidence of PW2 and PW6 for which PW2 said he (PW2) was stabbed with a knife on the neck, PW6 said it was on the chest that PW2 was stabbed. The remaining part of the evidence of PW6 together with those of PW4 (who does not know the Appellant) and PW5 (who was not at the scene of crime) Counsel argued, are hearsay evidence which is inadmissible, but the prosecution failed to call any of the two women who were in the tricycle to testify because their evidence would have
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been unfavourable hence, Section 167 (d) be invoked against the prosecution.
On circumstantial evidence, learned Counsel drew our attention that Courts have been enjoined to be wary of using circumstantial evidence to convict an accused person and that the facts and scenario of the circumstances in this appeal are insufficient and not cogent, or compelling enough as to reach an irresistible conclusion that it was the Appellant and no other person who committed the offence especially considering his evidence that he was not responsible. He cited ADEPETU VS. THE STATE (2011) 5 SCNJ 371 AT 386; ARCHIBONG VS. THE STATE (2006) ALL FWLR (PT. 323) 1747 AT 1766 – PARA H – C.
On the 3rd ingredient, that the Appellant intended to kill the deceased, Counsel contended that there is no direct or circumstantial evidence on record that the Appellant intended to kill the deceased, Umar Zakariyya. On these premises, we were urged to resolve this issue in favour of the Appellant.
Furthermore, it was Counsel’s contention that Exhibits B1 – B4 (the photographs of the deceased snapped with a handset) and generated by means of computer were
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wrongly admitted in evidence for failure to comply with the provisions of Section 84 (1) & (2) of the Evidence Act and should be expunged from the record, urging us finally to allow the appeal, set aside the judgment of the lower Court and discharge and acquit the Appellant.
Responding to the foregoing, learned Counsel to the Respondent submitted that the prosecution proved beyond reasonable doubt, all the ingredients of the offences by ‘(a) the Confessional Statement of the Appellant, Exhibit A; (b) by circumstantial evidence; and (c) by eye witness to the incident.
On the confessional statement of the Appellant, Exhibit A, Counsel restated the law that an accused person can be convicted solely on his confessional statement without more, GALADIMA VS. THE STATE (2012) LPELR – 15530 (SC); ADEYEMI VS. THE STATE 2015) ALL FWLR (PT. 790) 1201 AT 1207 though the usual practice is to look for corroboration no matter how light OLASEHINDE VS. THE STATE (2018) LPELR (SC) AT 151.
He referred to IKO VS THE STATE (2001) 14 NWLR (PT. 737) 221, 240 per Kalgo JSC as to the meaning of corroboration required. He contended that the Appellant
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confessed both at the Divisional and State C.I.D. Police Stations that he stabbed PW1 at his neck and the deceased Umar Zakariyya on the head which resulted in his death. That the evidence of PW2 that he heard the Appellant while on detention in the Police cell said that they attacked a tricycle which caused wound to someone and resulted in the death of a boy remains uncontroverted and proved the case of prosecution beyond reasonable doubt and sufficient to sustain the conviction.
On circumstantial evidence, it is the view of the Respondent’s Counsel that the evidence of PW1 and PW2 who clearly identified the Appellant as the person holding a long knife chasing after them while stabbing the back of the tricycle tampol is enough circumstantial evidence to establish the death of the deceased who was at the back of the tricycle.
He spelt out the ingredients of the offences of voluntarily causing hurt under Section 248 and culpable homicide punishable with death under Section 221 of the Penal Code and submitted that PW2 whose evidence is in tandem with that of PW1 that the Appellant wanted to stab PW2 but as PW2 dodged, Appellant stabbed PW1, is an
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eye witness to the stabbing of PW1 and also an eye witness together with PW1 (who identified the Appellant) to the Appellant’s cutting of the tampol which resulted in the stabbing of the deceased. Thus, PW1 he argued, was an eye witness whose evidence is reliable. He cited the case of UDO VS THE STATE (2018) LPELR – 43707 (SC) on the credibility of an eye witness.
On the issue of alleged inconsistencies in the evidence of the prosecution witnesses, it was Counsel’s contention that the evidence of PWs 1 – 7 are consistent and all saying one and the same thing. That minor discrepancies are bound to occur but they do not destroy the credibility of the witnesses –ABOKOKUYANRO VS. THE STATE (2016) 4 SCM Ratio 6 AT 58 AND 59. That for a contradiction to be fatal it must hinge on the substance of the case – ARCHIBONG VS. THE STATE (2006) ALL FWLR (PT. 323) 1247, insisting that in the case at hand the eye witness evidence of PW1 and PW2 that identified the Appellant as the person at the scene who stabbed PW1 and Appellant’s admission to PW2 at the Police cell that he committed the offences coupled with
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Appellant’s Confessional Statement, Exhibit A, are cogent and overwhelming evidence.
Learned Counsel’s response to the submission that Exhibits B1 – B4 were wrongly admitted is that the issue does not arise from the main judgment of the Court because there is no separate appeal against the Ruling and even if there is any, the Appellant did not seek leave of Court before filing Ground 2 of the grounds of appeal, thus, this Court is incompetent to decide the issue, leave having not been sought and obtained – SHAKA VS. SALISU (1996) 2 NWLR (PT. 428) 28.
We were urged to dismiss the appeal and affirm the judgment of the Court below.
RESOLUTION OF ISSUE 2
The Crux of the matter in this issue is whether the legally available evidence on record supports the conviction and sentence of the Appellant for the offences of voluntarily causing hurt to PW1 and culpable homicide punishable with death for the death of Umar Zakariyya punishable under Sections 248 and 221 of the Penal Code Law of Kano State CAP 109 1991 respectively. The evidence on record consist of the evidence of PWs 1 – 7, the Confessional Statements of the
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Appellant, (Exhibits A and D and the photographs of the deceased after death, Exhibit B1 – B4).
The ingredients of the offence of voluntarily causing hurt under Section 248 of the Penal Code which the Prosecution must prove to succeed are:
(a) that the accused caused by his act bodily pain, disease or infirmity to the complainant;
(b) that he did so intentionally or with the knowledge that the act would cause hurt;
(c) that the act was unprovoked;
(d) that the accused caused the bodily harm e.t.c. by means of an instrument for shooting, stabbing or cutting or by an instrument which used as a weapon, is likely to cause death.
Now, for the offence of causing hurt, there is on record an eye witness account of the incident. PW2, a tricycle driver gave an eye witness evidence that as he was conveying bride passengers back from Hotoro at Unguwa Uku, Laying Faruk, another Tricycle riding zigzagly was in front of him (PW2). Suddenly, three people holding weapons, a long knife, among them was the Appellant, attacked the tricycle in front of him (PW2) but the tricyclist ran away and the attackers stabbed the side of the tricycle.
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Then, the attacker came towards PW2’s tricycle and attacked him. He was able to dodge by turning away the head of the tricycle, as a result they stabbed PW1 (Ma’aruf Haruna) who was by his side. This evidence is very much in tandem with the evidence of PW1 who is the victim of the offence; that when PW2 dodged the accused/Appellant got him and stabbed him (PW1) around the neck.
This evidence was not controverted in cross-examination. It is no wonder that even the learned Counsel to the Appellant deemed it unnecessary to urge anything in respect of this offence of voluntarily causing hurt to PW1.
The importance or probative value of the evidence of an eye witness cannot be overemphasized in establishing the guilt of an accused person provided that the accused is properly identified or his identity is not in issue. Evidence of an eye witness is a reliable and weighty evidence to ground conviction. Provided that the witness is a witness of truth, see OYECHE VS. THE STATE (2006) ALL FWLR (PT. 305) 703 AT 720.
Further emphasizing on the strength of eye witness evidence, His lordship Rhodes Vivor JSC in UDO VS. THE STATE (2018) LPELR
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– 43707 (SC), cited by the Respondent’s Counsel stated thus:
“Eye witness evidence is always reliable evidence provided the witness is telling the truth, such evidence is on what the witness saw. It almost impossible to dislodge such evidence”.
The uncontroverted eye witness evidence of PW2, the driver of a tricycle that he was targeted but it was PW1 the passenger beside him who was stabbed coupled with the evidence of PW1 himself, the victim of the offence, that he was stabbed by the Appellant and bled from the wound, proves the ingredients of the offence of voluntarily causing hurt without provocation to PW1. The lower Court rightly held at page 103 of the record that the prosecution established the offence in the 2nd count against the Appellant beyond reasonable doubt.
For culpable homicide punishable with death, the prosecution must prove the following ingredients beyond reasonable doubt to succeed. These are :
i. that the death of a human being took place;
ii. that such death was caused by the accused;
iii. that the act of the accused caused the death with the intention of causing death or that the
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accused knew that death would be the probable consequence of his act.
See MAIYAKI VS. THE STATE (2008) 15 NWLR (PT. 1109) 173; MAMMAN VS. THE STATE (2015) LPELR – 25963 (CA).
It is needless to emphasize that all these ingredients must co-exist and each be proved beyond reasonable doubt for the prosecution to secure or sustain a conviction. See GALADIMA VS. THE STATE (2017) LPELR – 41909 (SC) and also ALI VS THE STATE (2015 LPELR – 24711 (SC) by the same Court; UBANI VS. THE STATE (2003) 18 NWLR (PT. 851 24;ADAVA VS. THE STATE (2006) 9 NWLR (PT. 984) 155.
On the first ingredient that a human being died, Umar Zakariyya, the evidence of PW1, PW2, PW4, PW6 and Exhibits B1 – B4 proved beyond reasonable doubt the death of Umar Zakariyya. PW4 was the brother of the deceased who when called up at the Police Station, identified the corpse to be that of his brother, Umar Zakariyya and who together with the Police deposited the corpse in the Mortuary until released to him the next day for burial.
Learned Appellant’s Counsel has attacked the admissibility of Exhibits B1 – B4. If the purpose for which they were
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tendered is to establish the death of the deceased, I agree with the Respondent’s Counsel that with or without the Exhibits the death of Umar Zakariyya was proved beyond reasonable doubt. In other words Exhibits B1 – B4 are not indispensable to prove the death of the deceased (Umar Zakariyya).
The 2nd ingredient is that the death of Umar was caused by the act of the Appellant. The evidence relied upon by the prosecution (the Respondent) consist of those of PW1, PW2, PW3, PW4, PW5, PW6 and PW7; Exhibits A, C and D.
PW2 gave an eye witness evidence that their attackers who did not get him but got PW1 were able to stab the tricycle at the back and the knife stabbed the head of the child at the back of the tricycle who died (the deceased – Umar Zakariyya). PW1 also testified that the Appellant stabbed the deceased, who was at the back of the tricycle, at the head.
It is the contention of the learned Counsel for the Appellant that the evidence of these PW1 and PW2 is basically hearsay and partly along with those of PWs 3, 4, 6 and 7 are ridden with material contradictions that they are not entitled to be relied upon.
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The evidence of PW1 and PW2 as shown on the record cannot wear the toga of hearsay evidence. Both PW1 and PW2 were eye witnesses to the incident. Both were categoric and emphatic in their evidence that after the Appellant stabbed PW1, (PW2 targeted having dodged), the Appellant and his gang stabbed the tampol at the back of the tricycle after stabbing PW1. PW1 was emphatic that before he dropped from the tricycle and ran away to a Chemist to wash off the blood from his injury, the Appellant had stabbed the back of the tricycle.
In his words.
“The accused person followed us with a knife and was stabbing the tricycle at the back, when I saw that he was about to catch us, I dropped and ran away on foot …”.
To this extent their evidence cannot be labelled as hearsay.
On the alleged contradictions, the question to ask is: When is evidence said to be contradictory? In DAGAYYA VS. THE STATE (2006) LPELR – 912 (SC) Muhammed JSC (as he then was) aptly answered this question succinctly as follows:
“In law of evidence, a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the
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other asserts, and not necessarily when there are discrepancies in say, details between them. In other words, contradiction between two pieces of evidence goes rather to the essentiality of something being or not being at the same time”.
Therefore, minor discrepancies in the evidence of the prosecution witnesses which do not affect the ingredients of the offence are not fatal to the prosecution’s case or sufficient to entitle an Appellant to an acquittal. It is only material and fundamental contradictions that raise doubts in the mind of the Court as to guilt of the accused that should affect the decision – See AWOPEJO & ORS. VS. THE STATE (2001) LPELR – 656 (SC); FALEYE VS THE STATE (2012) LPELR 20429 (CA); and a contradiction is material or substantial when it touches on an important element or issue which the prosecution or a party as the case may be, needs to prove to succeed in its case. Therefore, for a contradiction to negatively affect the credibility or veracity of evidence, it must be significant and material to the extent that it impacts negatively on the overall case of the prosecution.
The contradictions here
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as to whether the child (the deceased aged about 8 years) was at the shoulder of one of the two ladies in the tricycle or of PW2 or was at the back of the tricycle at the time he was stabbed is inconsequential. It is a minor discrepancy which is expected in the narration of minute details of same event by different persons depending on each person’s astuteness and capability for observing meticulous details. In re-examination, PW2 clarified that it was the Appellant who said he was the one who stabbed the back of the tricycle and in the process the knife entered the head of the boy. See page 15 of the record.
Similarly, the fact that PW3 said she did not know or recognize the Appellant is not a contradiction to the evidence of PW1 and PW2 who were able to recognize the Appellant. The evidence of PW3 would have been contradictory to that of PW1 and PW2 if she had affirmatively asserted that the Appellant was not the person who stabbed PW1 and or the back of the tricycle. That is not her evidence or that of PW4.
Minor discrepancies in the evidence of the prosecution witnesses which do not in any way affect or touch on any of the ingredients of
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the offence or do not impact negatively on the overall case of the prosecution, does not affect the credibility of the witnesses.
What is important is that both PW1 and PW2 in unison testified that the Appellant was one of the 3 persons who attacked them; that the Appellant stabbed PW1 with a knife and also before the duo of PW1 and PW2 ran away, the Appellant had stabbed the back of the tricycle with the knife. This is not hearsay evidence and there is no contradiction in their evidence on these material facts.
There are also Exhibits A and D, the confessional statements of the Appellant which the trial Court relied upon. The general application of the established law is that a Court can convict an accused person based on his confessional statement even without corroboration if it meets the requirement of the law. KIM VS. THE STATE (1992) 4 NWLR (PT. 233) 25. The principle is the same even where the confession is retracted. The fact of the retraction does not render the confession inadmissible or deter the Court from acting upon it. GALADIMA VS. THE STATE (2012) 18 NWLR (PT. 1333) 610. However, it is desirable and the Courts have held that the
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confession should be tested as to its truth by examining it in the light of other evidence to determine whether it is corroborated in any way; whether its contents are true; whether the accused had the opportunity to commit the offence charged; whether the confession is possible and consistent with other facts which have been proved. See KAREEM VS. FRN (2002) 8 NWLR (PT. 770) 664; OSETOLA & ANOR. VS. THE STATE (2012) LPELR 9348.
In Exhibit D which was admitted in evidence without any objection from the defence Counsel, the Appellant stated inter alia:
“On Friday 08/05/2015 at about 20:00 hrs I came back from a Chemist and we meet with one Adamu Auwalu M and Abba Abdullahi M., all of same address near our Chemist and we are neighbours and when going home three (by) tricycle was coming back from conveying a newly married lady to her husband house and one tricycle hit me at the left knee cap where is sustained injury and the tricycle stop and my friend Abba Abdullahi beat the rider of the cycle with hand, but the two boys is not aware with the knife in my possession, and there is knife in my possession where I hide it inside my trouser and I
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remove the knife and stabbed or tear up the Keke Napep Tampolin at the back as a result one of the passenger sustained injury at the neck and they escaped, the second Keke Nape came where I used the same knife and tear up the back Tampolin as a result another boy in the cycle, was stabbed on the head and the cyclist escaped with them, the next day I went to vigilante group of our area and stated that I am the one who kill the small boy yesterday that’s all they carry me to Zaria Police Station”.
Clearly, the Appellant confessed to the commission of the offence with details of how and why he did what he did. The confession is direct and positive.
The Appellant has not offered any explanations for his different positions in Exhibit D from his evidence in Court, why he has resiled from Exhibit D, which he made voluntarily. Having not offered any explanations for the inconsistency and why he is resiling therefrom, there may be no need to look for evidence outside the confession. In BASSEY VS. THE STATE (2012) 12 NWLR (PT. 1314) 209, the Supreme Court held that where an accused person confesses to an offence in his extra-judicial statement and
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had no objection to the statement being tendered and admitted in evidence and did not lead any cogent evidence in his testimony in Court resiling from the contents of the statement, there would be no need to look for evidence outside the confession anymore. It follows that rather than benefit from the inconsistency, the unexplained different positions taken by the Appellant should work against him.
The learned trial judge adverted his mind to the need to test the veracity of the statements and found that they are fully collaborated with the eye witness of PW1 and PW2 and was satisfied of the truth of the confession. I agree with that finding and conclusion.
Similarly, in Exhibit A the Appellant confessed to the commission of the crime but that he pulled out the knife with the intention of cutting the tampol because the tricyclist had matched his leg not knowing that there was someone at the back of the tricycle. That he followed the tricycle to retrieve the knife but it ran faster than him.
This is not all. The oral evidence of PW2 in Court that he heard and saw the Appellant and others while in Police cell telling some other inmates that they
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attacked some tricyclists and in the process a boy died inside one of the tricycle, remains unchallenged and uncontroverted. The lower Court also rightly acted on same.
On the 3rd ingredient which is that the act of the accused/Appellant was done with the intention of causing death or that the accused knew or had reason to know that death would be the probable and not only the likely consequence of the act or of any bodily injury which the act was intended to cause, and this is whether the Appellant caused the death or the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence.
How then is intention proved?
A man’s intention is usually very difficult if not impossible to prove, for even the devil as crafty as it is, has not been able to know or read a man’s intention. A man’s intention, invariably can only be inferred from his conduct and surrounding circumstances within which he acts. It is from the manifestation of his conduct that his intention can be ascertained. This statement has the backing of a litany of judicial decisions. See for example AREBAMEN VS. THE STATE (1972) 7
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NSCC 194, 200; KOLO VS. COMMISSIONER OF POLICE (2017) LPELR – 42577 (SC).
This is why the law presumes that a man intends the natural and probable consequence of his act and is deemed to know the natural consequence of his action. See GARBA & ORS. VS. THE STATE (2000) 6 NWLR (PT. 661) 379; STATE VS. JOHN (2013) LPELR – 20590 (SC).
This is in turn founded on the maxim that the guilty mind instigates the guilty act or flows into the guilty act. The act of a person is proof of his mens rea.
The evidence on record from which to infer the intention of the Appellant to kill or knowledge that his act is probable to cause death includes the graphic evidence of PW1 and PW2 that the Appellant and his gang after stabbing PW1, stabbed the tricycle at the back with the knife. It is a fact known to the attackers, (Appellant inclusive) that at the time they stabbed the back of the tricycle with a long knife which is a lethal weapon, there were passengers in the tricycle including PW1 whom they had already stabbed.
The attackers ought to have known that striking (or stabbing) the back tampol of the tricycle with a long knife would probably
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injure the passengers in the tricycle and cause grievous body hurt or outright death. Thus, the statement in Exhibit A that his intention was only to tear the tampol and did not know that there was someone at the back of the tricycle, does not in law inure him. The law deems that a man intends the natural consequence of his act.
The learned trial judge in reaching a conclusion that the prosecution proved its case beyond reasonable doubt against the Appellant reasoned as follows:
“In fact, even the Accused must have known that with the length of the knife its sharpness as per Exhibit C, that anybody he stabs with that lethal and dangerous weapon, death would certainly be a probable consequence and not merely a likely consequence. And since his action has resulted in him stabbing the said Umar Zakariyya in the head which resulted his instant death, the Accused person based on the authorities of NWOKEARU VS. THE STATE; JGOKU VS. THE STATE ALL cited (Supra) must be held culpable for the offence of murder ”.
I endorse the reasoning and conclusion reached by the lower Court in finding the Appellant guilty of the offence of culpable
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homicide punishable with death under Section 221 of the Penal Code.
The issue is resolved against the Appellant.
In consequence thereof, we find no merit in this appeal and it is hereby dismissed. The conviction and sentence of the Appellant contained in the judgment of the lower Court delivered by Hon. Justice Ibrahim Musa Karaye on 03/10/2017 are hereby affirmed.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the leading judgment of my learned brother Wambai JCA just delivered and I agree with his reasoning and conclusions. The trial Judge evaluated the evidence led before him and applied the law correctly, to the facts. His findings were based on the evidence. I do not find any justification in interfering with the findings. The prosecution had proved the charges in counts 2 and 3 beyond reasonable doubt. I find no merit in this appeal and I dismiss it. I affirm the judgment of the trial Court delivered 3rd October 2017 in Charge No: K/07C/2016.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has ably
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considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.
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Appearances:
TAJUDEEN O. OLADOJA (LIFE BENCHER) with him, FAUSAT ABDULSALAM (MRS.), M.B. YUSUF, ESQ., CHIOMA WILLIAMS (MRS.), LUKMAN O. BABALOLA, ESQ., YUNUS O. OLAKULEHIN, ESQ., OLAMIDE OLOJE (MISS), BARNABAS JOHN, ESQ., SARSE BASIL KPENKPEN, ESQ., and PATRICK BUKI ACHI, ESQ. For Appellant(s)
IBRAHIM MUKTAR (ATTORNEY-GENERAL OF KANO STATE) with him, MUSA MUHAMMAD DAIHURU, UMAR ABDULKADIR, K.A. HASHIM, HAFIZ AHMAD WALI, MUHAMMAD NAZIR FARUK and AMIN ADO BELLO For Respondent(s)
