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ABU v. STATE (2022)

ABU v. STATE

(2022)LCN/15957(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, February 24, 2022

CA/ABJ/CR/686/2020

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

TIMOTHY ABU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE THREE TYPES OF EVIDENCE RELIED ON TO PROVE THE GUILT OF AN ACCUSED PERSON

However, be the above state of facts and evidence as it may, I am aware that in criminal trials the Prosecution, such as the Respondent, has open to it three types of evidence with which to prove the guilt of an Accused person beyond reasonable doubt as required by law. These three types of evidence are, namely: Direct eye witness account, Confessional statement and Circumstantial evidence. See Deriba V. State (2016) LPELR – 40345(CA), where this Court had per Georgewill JCA, opined inter alia thus:
“However, it must be pointed out at once that in proving the guilt of an Accused person, the Prosecution has open to it three basic types of evidence with which to prove the guilt of accused person, namely; 1: Confessional statement; 2: Circumstantial evidence and 3: Evidence of eye witness. See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.”
PER GEORGEWILL, J.C.A.

THE ESSENTIAL INGREDIENT OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH

In every prosecution for Culpable Homicide punishable with death, the cause of death is a very essential ingredient that must be established with cogent and positive evidence by the Prosecution, without which there would be no necessity for any further inquiry into who caused the death of the deceased. See Sule Ahmed (Alias Eza) V. The State (2002) All FWLR (Pt. 90) 1358 @ p. 1372, where the Supreme Court had opined inter alia thus:
“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 act of the accused and the biological cause of death”.
See also Ebong & Anor V. The State (2012) All FWLR (Pt. 633) 1945 @ pp. 966 -967; Sunday Omonuju V. The State (1976) 5 SC 1; Frank Onyenankeya V. The State (1964) NMLR 34. PER GEORGEWILL, J.C.A.

WHETHER OR NOT THE TRIAL COURT MUST BASE ITS EVALUATION, ASSESSMENT AND FINDINGS ON THE AVAILABLE EVIDENCE ADDUCED BEFORE IT

A trial Court, like the Court below, being the master of the facts, must base its inferences, evaluation or assessment and findings on the available evidence adduced before it and therefore, if its findings must stand it must not be premised on extraneous facts or matters or conjectures outside the evidence given at the trial. In law therefore, the conviction of an Accused person must be supported and founded on credible evidence, which must be cogent and must not create room for speculation or doubt and if it does it is liable to be set aside on appeal. See Eiche Mendrick V. The State of Lagos (2018) LPELR-45549(CA) per Georgewill JCA. See also Emeka V. The State (2014) LPELR 23020 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220) 584; The State V. Musa Danjuma (1997) 3216 (SC) 1.
​In law, conviction for any offence can only be secured based on proof by sufficient, credible and cogent evidence in satisfaction of all the essential elements of the offence charged, failing which an Accused person is entitled to be discharged and acquitted. However, in proving the guilt of an Accused beyond reasonable doubt, and which does not impose on the Respondent any greater duty than it simply entails, namely; proof of all the essential ingredients of the offence charged beyond reasonable and not proof beyond all shadow of doubt or proof to the hilt. See Emmanuel Eke V. The State (2011) 200 LRCN 143 @ p. 149. See also Deriba V. State (2016) LPELR- 40345 (CA) per Georgewill JCA.
PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Kogi State Coram: F. Folajobi Ajayi J, in Charge No. DHC/4C/2019: The State V. Friday Rueben & Ors delivered on 14/7/2020, in which the Appellant was convicted for the offences of Criminal Conspiracy and Culpable Homicide contrary to Sections 97(1) and 221 of the Penal Code and was sentenced to death.

The Appellant was thoroughly dissatisfied with the said judgment and had promptly appealed against it vide his Notice of Appeal filed on 23/7/2020 on three grounds of appeal. See pages 92 – 94 of the Record of Appeal. The Records of Appeal were duly compiled and transmitted to this Court on 21/8/2020. The Appellant’s brief was filed on 22/1/2021 but was deemed as properly filed on 27/9/2021. The Respondent’s brief was filed on 9/3/2021 but was deemed as properly filed on 27/9/2021. The Appellant’s Reply brief was filed on 24/9/2021 but was deemed as properly filed on 27/9/2021.

​At the hearing of the appeal on 18/1/2022, Liman Salihu Esq., learned counsel for the Respondent, holding the fiat of the Hon Attorney General of Kogi State adopted the Respondent’s brief as his arguments in opposition to the appeal and urged the Court to dismiss the appeal for lacking in merit and affirm the conviction and sentence of the Appellant by the Court below. The Appellant’s brief, filed on 22/1/2021 but deemed as properly filed on 27/9/2021, was deemed as having been argued and judgment in the appeal was reserved. See Order 19 Rule 9(4) of the Court of Appeal Rules, 2021.

By an Information filed on 20/6/2019, the Appellant was charged along with two others with the offences of Criminal Conspiracy and Culpable Homicide contrary to Sections 97(1) and 221 respectively of the Penal Code. The particulars of the offence of Criminal Conspiracy were that on 27/6/2018, the three Accused persons ‘agreed to do an illegal act, to wit: Conspired to rob one Nathaniel Onuh, now deceased and the same act was done in pursuance of the agreement.’ The particulars of the offence of Culpable Homicide were that on the night of 27/6/2018, the three Accused persons ‘caused the death of one Nathaniel Onuh by hitting him on his head with iron rod with the intention of causing his death’. The Information was signed by one I. Opaluwa Esq., Senior Legal Officer on behalf of the Hon Attorney General of Kogi State. On 3/7/2019, the Appellant pleaded not guilty to each of the two counts. See pages 1 – 2 and 47 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
At the Court below the Respondent had alleged that the Appellant as 2nd Accused person and his other two co – accused persons had conspired to rob one Nathaniel Onuh and did carry out their agreed act of robbing the said Nathaniel Onuh on the night of 27/6/2018 and in the ensuing attack they killed him in his house at Ojuwo Onicha Igo in the Ofu Local Government Area of Kogi State. The 2nd Appellant, as the 2nd Accused person denied the charges and maintained that the deceased was his uncle and that he had nothing to do with either the robbery and or death of the deceases and that at the night of the alleged incident he was sleeping in his father’s house. See pages 48 – 59, 70 – 74 and 75 – 79 of the Record of Appeal.

On arraignment before the Court below, the Appellant pleaded not guilty and the matter proceeded to trial. In proof of its case against the Appellant, the Respondent called five witnesses who testified as follows: PW1 was one Inspector Friday Inmi, PW2 was one Sgt. Abdulrazag Emokpa, PW3 was one Nathaniel Ladi, PW4 was one Sgt. Edibo Monday and PW5, was one Daniel Momoh Negedu and tendered some documents admitted as Exhibits and closed its case. In his defense, the Appellant testified for himself and called one witness who testified as DW1, one Gideon Abu and closed his case. Thereafter, the parties addressed the Court below, and in its judgment delivered on 14/7/2020, the Appellant was found guilty and convicted of the offenses of Criminal Conspiracy and Culpable Homicide contrary to Sections 97(1) and 221 of the Penal Code and was sentenced to death, hence the appeal. See pages 81 – 91 and 92 – 94 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, two issues were distilled as arising for determination from the grounds of appeal, namely:
1. Whether the Court below was right when it held that the Respondent established the offences of Criminal Conspiracy and Culpable Homicide against the Appellant?
2. Whether the Court below properly evaluated available evidence before it relied on same to convict the Appellant?

In the Respondent’s brief, a sole issue was distilled as arising for determination in this appeal, namely:
Whether the Respondent proved its case beyond reasonable doubt as to entitle it to secure the conviction of the Appellant?

I have taken time to review and evaluate the totality of the evidence led by the parties, bearing in mind that in criminal trials the burden of proving the guilt of the Accused person remains fixed on the Prosecution throughout the trial and does not shift, even though the onus of introducing evidence may shift as for example in respect of defences raised by an Accused person. I have also considered the submissions of counsel in their respective briefs in the light of the findings in the judgment appealed against, and I am of the view that the sole issue as distilled in the Respondent’s brief best represents the apt issue for determination in this appeal, a consideration of which would invariably involve the due consideration of the two issues for determination as distilled in the Appellant’s brief. I shall therefor, proceed to consider and resolve the sole issue for determination in this appeal anon!

SOLE ISSUE
Whether the Respondent proved its case beyond reasonable doubt as to entitle it to secure the conviction of the Appellant?

APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellant had submitted that in law the Respondent has the burden to prove the offence alleged against the Appellant beyond reasonable doubt and contended that once there is any doubt, such doubt must be resolved in favor of the Appellant and urged the Court to hold that in criminal trials, it is the first statement made to the Police by eye witness at the first opportunity and when the facts are fresh in their memory that the Court would accept and not the statement made to the Police or evidence in Court after a long period had passed and they had enough time to forget or to embellish to make impression and at variance with the statement to the Police, as in the evidence led by the Respondent against the Appellant, that the Court would accept in finding an Accused person guilty of the alleged offence and to allow the appeal, set aside the judgment of the Court below and discharge and acquit the Appellant. Counsel referred to Section 135 of the Evidence Act 2011 and relied on Ndidi v. The State (2007) All FWLR (Pt. 338) 1617 @ p. 163; Omotola v. The State (2008) 2 FWLR (Pt. 418) P. 2190; Udosen v. The State (2007) 4 FWLR (Pt. 388) 5721.

It was also submitted that PW3 admitted to the fact that she knows the Appellant and they live in the same village called Onicha Igo but does not know the name of the Appellant, and contended that in law where a prosecution witness gives evidence in Court which is different and contradictory to the statement he gave to the Police, such contradictory evidence in Court as well as the statement earlier made to the Police should be discountenanced by the Court and urged the Court to hold that the contradiction between the statement of Prosecution witnesses to the Police and their evidence in Court as regards the name of the people they saw committing the offence was fatal to the case of Prosecution as none of them mentioned the Appellant’s names to the Police in their earlier statement, discountenance Exhibit P5 as well as the evidence of PW3 and PW1, being hearsay evidence and to discharge and acquit the Appellant. Counsel relied on Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1; Bozin v. State (1985) 2 NWLR (Pt. 8) 465; Ebre V. State (2001) 12 NWLR (Pt. 728) 617; Felix Anthony v. The State (2009) LPELR – 8271.

It was further submitted that to succeed in a count alleging culpable homicide the Respondent has the burden to prove by credible evidence the essential elements of the offence of culpable homicide, namely: that the death of a human being has actually taken place; that such death was caused by the Appellant; the act or omission of the Appellant that caused the death was intentional, with the knowledge that death was the probable or likely consequence of the act and contended that the Respondent failed to present any single legally admissible evidence in proof of any of these essential elements against the Appellant despite calling five witnesses and tendering several inadmissible documents in evidence, such as Exhibits, P5 coupled with the lack of any eye witness account and medical or forensic analysis or report of the cause of death of the deceased that was deliberately withheld and urged the Court to hold that outside of the purported and inadmissible Exhibits P3 and P4, which the Court below had rejected on the ground of involuntariness but still turned around to rely upon in its judgment, there was no single iota of credible piece of evidence upon which the Court below ought possibly to have convicted the Appellant and to allow the appeal, set aside the perverse judgment of the Court below and discharge and acquit the Appellant on both Counts. Counsel referred to Sections 97(1) and 221 of the Penal Code and relied on Michael v. The State (2008) LPELR-1874 (SC) @ p. 20; Isma’il V. The State (2011) LPELR-9352; George v. The State (1993) 6 NWLR (Pt. 297) 4; Ogbu v. The State (2007) 3 FWLR (Pt. 377) 4193; Ukwa Egbe Enewoh v. State (1990) LPELR-1141 (SC); Jeminabo Princewill v. State (1994) LPERL-2926 (SC); Dare Kada V. State (1991) 8 NWLR (Pt. 208) 134 @ p. 154.

It was also further submitted that the Respondent has the onus to prove the cause of death and that it was caused by the act of the Appellant since in law in a trial for culpable homicide punishable with death, the Respondent has a duty to prove the cause of death and contended that in law the death of the deceased must be caused by the act of the Appellant in that it must be shown that the deceased died as a result of the act of the Appellant and urged the Court to hold that the Respondent failed to prove the cause of death of the deceased coupled with the fact that the Appellant was neither arrested in the act nor at the scene of any crime and to allow the appeal, set aside the perverse judgment of the Court below and acquit and discharge the Appellant. Counsel relied on Adekunle v. State (2006) LPELR-107 (SC) @ pp. 21-22; Sunday Omonuju v. The State (1976) 5 SC 1; Frank Onyenankeya v. The State (1964) NMLR 34; Lori v. State (1980) 8 -11 SC 81 @ pp. 95 – 96; State v. Okpala (2012) LPELR-7845 (SC) @ p. 24; Frank Onyenankeya v. State (1964) LPELR-25198(SC) @ p. 3; Tegwonor v. State (2007) LPELR – 4674 (CA) @ pp. 21-22; Godwin Igabele v. State, (2006) LPELR-1441 (SC); See also Ebong & Anor v. The State (2012) All FWLR (Pt. 633) 1945 @ pp. 966-967; Sunday Omonuju v. The State (1976) 5 SC 1.

It was further submitted that the Respondent has the burden of not only proving that the act of the Appellant could have caused the death of the deceased but that it actually did caused the death of the deceased in that there must be clear evidence that the death of the deceased was the direct result of the act of the Appellant to the exclusion of all other reasonable probable causes and contended that the Respondent failed woefully to prove both the death of the deceased and that it was the Appellant that caused the death of the deceased and urged the Court to hold that the Court below was in grave error and arrived at very perverse finding when it held that the Respondent proved its case beyond reasonable doubt against the Appellant by failing to direct its mind to the fact that the evidence of the cause of death did not support the facts disclosed in the charge before it and to allow the appeal, set aside the perverse judgment of the Court below and acquit and discharge the Appellant on both counts. Counsel relied on Danjuma Aliyu & Others v. The State (1999) LPELR – 5542 (CA) @ pp. 36 – 37; R v. Owe (1961) 2 SCNLR 354.

It was also submitted that in law the Respondent having particularized how the deceased was allegedly killed and the cause of death in the charge, those facts became relevant facts in issue which the Respondent must prove beyond reasonable doubt in order to secure the conviction of the Appellant and contended that the Respondent failed to place any evidence with regards to the iron rod it alleged that the Appellant used in hitting the head of the deceased and urged the Court to hold that from all the available evidence and the facts and circumstances, the evidence led were at variance with the particulars of the charge with which the Appellant and that the failure of the Court below to direct its mind to this variance between the alleged cause and means of death by use of ‘iron rod’ on the charge and the evidence led on the cause of death amounted to not only a breach of the Appellant’s right to fair hearing but also a grievous non – direction and miscarriage of justice against the Appellant and to allow the appeal, set aside the perverse judgment of the Court below, acquit and discharge the Appellant. Counsel referred to Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Sections 200 – 203 of the Criminal Procedure Code of Northern Nigeria; Section 271(2) (a) (b) of the Administration of Criminal Justice Act 2015 and relied on Isah v. State (2008) LPELR-1542 (SC) @ pp. 9 -10; Bala v. State (2015) LPELR – 25952(CA) @ pp. 14 – 16; Embarga v. State (2018) LPELR – 44085(CA) @ pp. 16 – 18.

It was further submitted that the Respondent failed woefully to prove by credible evidence, as required of it by law, that the Appellant acted or carried out the alleged act knowing that death of the deceased was the likely and probable cause and contended that the Respondent having even failed to prove the death and cause of death of the deceased, it follows that the third ingredient of the offence of culpable homicide punishable with death as alleged against the Appellant did not even arise or exited and was therefore, not proved and to hold that in law the Respondent was under a duty to prove all the three elements of the offence of culpable homicide and having failed to prove these elements against the Appellant, the Court below was in grave error when it proceeded to perversely convict the Appellant for the offences charged and sentenced him to death and to allow the appeal, set aside the judgment of the Court below and to discharge and acquit the Appellant on both counts. Counsel referred to Section 135 of the Evidence Act 2011 and relied on Felix Nwosu v. The State (1986) LPELR – 2134 (SC) @ p. 20; Aderemi v. State (2019) LPELR – 49535(CA) @ pp. 28 – 29; Dawai v. State (2017) LPELR – 43835 (SC) @ pp. 9-10; Deriba V. State (2016) LPELR – 40345 (CA); Olojede v. State (2018) LPELR-46148(CA); Okebata v. The State (2013) LPELR – 22474 (CA).

It was also further submitted that from the entirety of the evidence led by the Respondent, notwithstanding the attempt by the Court below to conjure up circumstantial evidence, there was also no legally admissible and credible evidence that supports the charge of conspiracy and contended that the Respondent failed to meet the basic legal requirement and standard of proof for any of the offences alleged against the Appellant, since the evidence were totally inadmissible in law either as involuntary extra – judicial confessional statements or hearsay from persons who did not witness the alleged offences and urged the Court to so hold and to allow the appeal, set aside the perverse judgment of the Court below and discharge and acquit the Appellant on both counts. Counsel referred to Section 97(1) and 221 of the Penal Code and relied on Nweze v. State (2017) LPELR-42344(SC) @ p. 14.

On his issue two, learned counsel for the Appellant had submitted that from the totality of the evidence there was no clear, positive, direct statement made by any of the witnesses for the Respondent linking and or connecting the Appellant to the any of the two counts preferred against him and contended that none of the PW1, PW2, PW3, PW4 and PW5 gave any evidence linking the Appellant to any of the two counts since at best their evidence amounted to hearsay and or mere speculation, which has no evidential value or any basis in law and cannot be relied upon as pieces of circumstantial evidence to ground a conviction of the Appellant and urged the Court to hold that the Court below was in grave error to rely on the hearsay evidence of the PW1, who had no official role in the investigation of the alleged homicide involving his father, and PW3 and PW5, as the crucial evidence upon which to convict the Appellant and to resolve all the grave doubts created by the hearsay and speculative evidence in favor of the Appellant and allow the appeal, discharge and acquit the Appellant on both counts. Counsel relied on Okechukwu Chukwu v. The State (2012) LPELR – 15360 (CA); Ani v. The State (2009) All FWLR (Pt. 422) 1044 @ p. 1063; Ndidi v. The State (2007) All FWLR (Pt. 338) 1617 @ p. 1638; Felix Anthony v. The State (2009) LPELR – 8271(SC).

It was also submitted that in law a confessional statement of an Accused person can only bind him and therefore, cannot be used against his Co – Accused person unless such a confessional statement was adopted by the Co – Accused person either by words or conduct and contended that curiously even the statement relied upon by the Court below were involuntary statements, which it had earlier treated and discountenanced as inadmissible in evidence but which it turned around to treat as merely retraced confessional statements and relied upon to convict the Appellant and urged the Court to hold that in law such extra – judicial statements having been held to be involuntarily and therefore, inadmissible in evidence, were no longer tenable evidence and therefore, cannot be used by the Court below to convict the Appellant as was both erroneously and perversely done by the Court below and to allow the appeal set aside the judgment of the Court below and discharge and acquit the Appellant on both of the two counts. Counsel referred to Sections 28 and 29(4) of the Evidence Act 2011; Section 28 (2) of the Administration of Criminal Justice Law of Kogi State 2017 and relied on Kasa v. The State (1994) 1 SC 18A @ p. 28; Akpan v. State (1992) 6 NWLR (Pt. 248) 439 @ p. 468; Matthew v. State (2018) LPELR – 43941 (SC) @ pp. 45 – 49.

It was further submitted that the Appellant in his evidence stated that on the fateful night the deceased was said to have been killed he was in his father’s house and which evidence was neither cross examined upon nor controverted by the Respondent, which in law amounted to an admission by the Respondent and which was corroborated by the evidence of his father as DW1, and contended that the Court below, which was under a duty to consider all possible defenses available to the Appellant, had erroneously discountenanced such sacrosanct, valid, reliable and dependable evidence and rather curiously found the Appellant, who on the night of the alleged offences was in his father’s house, guilty of the two counts and urged the Court to hold that such a finding running contrary to the admitted and proved evidence before the Court below occasioned a grave miscarriage of justice against the Appellant and to allow the appeal, set aside the judgment of the Court below and discharge and acquit the Appellant on both counts. Counsel relied on FRN V. Ibrahim & Anor (2013) LPELR – 24231(CA); Boy Muka V. The State (1976) 10-11 SC 305 @ pp. 325-326; Chukwu & Anor V. INEC & Ors (2014) LPELR – 22221(SC); State V. Ajie (2000) LPELR-3211 (SC) (P.13, paras. D-F); Awudu V. Daniel (2005) 2 NWLR (PT.909) 199; Okonkwo V. Ngige (2006) 8 NWLR (Pt. 981) 119; Olayinka V. The State (2007) LPELR – 2580 (SC) @ pp. 28 – 29; Williams V. The State (1992) LPELR-3492 (SC) @ p. 10; Saheed V. State (2018) LPELR – 46675 (CA) per Georgewilll JCA, @ pp. 40 – 41; Fatai Olayinka V. The State (2007) WRN (Vol. 45) 147 @ p. 175, lines 15-35 (SC); Adelu V. State (2014) LPELR 22886(SC) @ pp. 15-16; Eyop V. State (2012) LPELR – 20210 (CA) @ p. 42.

RESPONDENT’S COUNSEL SUBMISSIONS
On the sole issue learned counsel for the Respondent had submitted that in law even though the burden of proof in criminal trials is proof beyond reasonable doubt but it does not mean proof beyond all shadow of doubt and contended that the Respondent was able to establish through credible and cogent evidence all the essential ingredients of the offence of Criminal Conspiracy against the Appellant and urged the Court to hold that through the unchallenged and un-discredited evidence of PW1 and PW5, all the essential ingredients of the offence of Criminal Conspiracy were firmly established the Appellant and to dismiss the appeal against the conviction of the Appellant on Count 1 and affirm the sound judgment of the Court below. Counsel referred to Section 135 of the Evidence Act 2011; Section 97(1) of the Penal Code and relied on Anekwe V. The State (2014) LPELR – 22881(SC) @ pp. 24 – 25; Garba V. COP (2007) 16 NWLR (Pt. 1060) 378 @ p. 405.

It was also submitted that from the evidence of PW1 and DW1, the father of the Appellant in Exhibit D1, which is clearly a declaration against interest, the Respondent proved the existence of an agreement between the Appellant and his two Co – Accused persons to do or cause to be done an illegal act or legal act by on illegal means by planning to rob the deceased and contended that in law the evidence of conspiracy may either be direct or be inferred from proved facts and circumstances and urged the Court to hold that Exhibit D1 strengthened the proof of the commission of the offence of Criminal Conspiracy against the Appellant and to dismiss the appeal and affirm the correct judgment of the Court below on Count 1. Counsel referred to Section 97(1) of the Penal Code; Sections 21 and 22 of the Evidence Act 2011 and relied on Okashetu V. The State (2016) LPELR – 40611(SC) @ pp. 14 -15; Gbadamosi & Ors V. State (1991) 6 NWLR (Pt. 196) 182; Eigbe V. NUT (2007) LPELR – 8310 (CA) @ p. 33.

On the offence of Culpable Homicide punishable with death, it was submitted that in law the Respondent must prove not only that the act by which the death of the deceased was caused was done by the Appellant but also that the act was done by the Appellant with the intention of causing death and contended that from the entirety of the unchallenged and un – discredited evidence of PW1 it was established that the deceased died as a result of being hit with an ‘iron rod’ by the 3rd Accused person in furtherance of the common intention between the Appellant and his two Co – Accused person to rob the deceased and urged the Court to hold that this constituted substantial circumstantial evidence inexorably linking the Appellant and his Co -Accused persons to the killing of the deceased, Nathaniel Onu and to dismiss the appeal and affirm the judgment of the Court below, the Respondent having established that the Appellant and his Co – Accused persons had not only caused the death of the deceased but they did so intentionally or with knowledge that death or grievous bodily harm was its probable natural consequence of their action in hiting the deceased with an ‘iron rod’ Counsel relied on Njoku V. State (2013) 2 NWLR (Pt. 1339) 548; Maiwada V. State (2015) LPELR 40413.

On the cause of death of the deceased, it was submitted that from the evidence of the PW1 that the deceased was hit on the head with an ‘iron rod’ by the 3rd Accused person and coupled with Exhibit P7 (d), a report of a Medical Practitioner identifying the deceased, Nathaniel Onu, to have died from ‘blunt trauma to the head’ constituted in law sufficient evidence of the cause of death of the deceased and contended that in law there need not be direct eye witness account for conviction to be entered against an Accused person once there is it sufficient, cogent and compelling circumstantial evidence irresistibly pointing to and unequivocally at the Accused person as the person who had committed the offence and urged the Court to hold that the unchallenged and un- discredited evidence of PW1 broadly amounting to informal confession from the Appellant and his Co – Accused persons were both admissible and sufficient proof of the guilt of the Appellant and to dismiss the appeal and affirm the conviction and sentence to death of the Appellant by the Court below. Counsel referred to Section 221 of the Penal Code and relied on Attorney – General of Anambra State V. Okeke (2002) LPELR-604 (SC) @ pp. 12-13; Lori V. State (1980) 8 – 11 SC 81 @ pp. 86 – 87; Onungwa V. The State (1976) 2 SC 169; Okorocha V. PDP & Ors (2014) LPELR – 22058 (SC) @ pp. 15 – 16; Mohammed V. The State (2018) LPELR-43872 (CA) @ pp. 24 – 25; Okosi V. The State (1989) LPELR – 2499 (SC); Gaji & Ors V. Paye (2003) LPELR-1300 (SC) @ p. 20.

It was also submitted that the fact that the Appellant was not arrested with any gun or iron rod was inconsequential in law since the weapon used in the commission of an offence need not be tendered before the guilt of the Appellant can be established and contended that from the Record of Appeal, Exhibit P7 (d), marked as ‘Form D’ and titled ‘Report of a Medical Practitioner’ was sufficient to prove the cause of death of the deceased and urged the Court to hold that it is not the law that unless the Medical practitioner is called, the medical report issued by him cannot be relied upon by the Court below and to dismiss the appeal and affirm the conviction and sentence of the Appellant on Count 2. Counsel referred to Section 55 (1) and (2) of the Evidence Act 2011and relied on Esene V. The State (2017) LPELR – 41912 (SC) @ p. 41; Fatai Olayinka V. The State 30 NSCQB 149 @ pp. 162 – 163; Blessing V. FRN (2015) LPELR – 24689 (SC) @ PP. 46 – 49.

In relation to the provisions of Section 28 of the Administration of Criminal Justice Law of Kogi State, it was submitted that the current position of the law is that the Evidence Act 2011 is a specific law on evidence, including admissibility and therefore, takes precedence over the Administration of Criminal Justice Law of Kogi State in matters of admissibility and contended that the Administration of Criminal Justice Law of Kogi State merely prescribed procedural rules to be observed by the Police while recording the statement of an Accused but it is the Evidence Act, specifically regulates the rules of the admissibility of such statement and urged the Court to so hold and to discountenance the submissions of the learned counsel for the Appellant on the admissibility or otherwise of the extra judicial statement of the Appellant and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below. Counsel relied on Enang V. The State (2019) LPELR – 48682 (CA) @ pp. 12 – 16; Nwaogu V. Atuma (2013) 17 NWLR (Pt. 1364) 117; Joseph Zhiya V the People of Lagos State (2016) LPELR – 40562 (CA); Charles V. FRN (2018) 13 NWLR (Pt. 1635) 50; Nnajiofor V FRN (2019) 2 NWLR (Pt. 1655) 157.

It was further submitted that in law it is not every failure to cross examine a witness that could give rise to the inference of admission of the evidence of such a witness where the evidence is not in consonant with the case of the party giving there would be no need to cross such a witness and contended that from the Record of Appeal, the Appellant merely sought to raise the defence of ‘alibi’ for the first time during his defence before the Court below and urged the Court to hold that the Appellant having not duly raised the ‘alibi’ in his statement to the Police there was absolutely no need to cross examine on such an afterthought defence and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Aremu V. The State (1991) 7 NWLR (Pt. 201)1.

It was also further submitted that in law an appellate Court would not usually interfere with findings of trial Court unless same has been shown to be perverse and contended that in this instant case, there is unchallenged evidence that the Appellant featured ostensibly at the scene of the alleged crime and which fact was not dislodged under cross – examination and thereby making nonsense of the Appellant’s plea of ‘alibi’ raised only at the trial before the Court below and urged the Court not to tamper with the correct findings of the Court below but to affirm the same and dismiss the appeal for lacking in merit. Counsel relied on The State V. Rabiu (2013) LPELR – 19982, (SC); Amos Bamgboye & Ors. V. Olarewaju (1991) 4 NWLR (Pt. 184) 132; Chief Victor Woluchem V. Chief Nelson Gudi & Ors. (1981) 5 SC 291 @ p. 295; Awote V. Owodunni (1986) 5 NWLR (Pt. 46) 941.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions learned counsel for the Appellants virtually reiterated his earlier submissions but in law the reply brief is not an avenue to re – argue the appeal or merely to have a second bite at the cherry. The Reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See also Olafisoye V. FRN 2004 1 SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2 – 3 SC 61; Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).

Be that as it may it was submitted that Sections 21 and 22 of the Evidence Act 2011 do not apply to Exhibits D1 which was not directly made by the Appellant, to whom the statement was accredited but by his father, the DW1 and contended that the Appellant was not bound by the statement made in Exhibit D1, even if alleged, but denied by the Appellant, to have been made by his father on his behalf and urged the Court to so hold and totally discountenance the statements of the PW1, DW1, 1st and 3rd Accused person as neither binding on the Appellant nor capable of proving any of the offences alleged against the Appellant and to allow the appeal and set aside the perverse judgment of the Court below.

It was also submitted that Exhibit P7(d), a uncertified medical Report tendered in evidence by PW4, a none medical personnel, and being not the person who issued the medical report, was of no consequences in law on the face of the failure of the person who issued the medical report to appear to testify and be cross examined and contended that in law the failure to produce the medical personnel who issued the medical report raised the presumption that if he had been called his evidence would have been against the Respondent and urged the Court to hold that it amounted to withholding of a crucial piece of evidence and to make such inference against the respondent that the cause of death of the deceased was not proved as required by law and to allow the appeal and discharge and acquit the Appellant on Count 2. Counsel referred to Section 167(d) of the Evidence Act 2011 and relied on Ewugba V. State (2017) LPELR – 438333; Odogwu V. State (2013) 7 SCNJ 569; Smart V. State (2016) LPELR – 40728 (SC) @ pp. 18 -19; Nwaogu V. Atuma (2013) 17 NWLR (Pt. 1364) 117.

RESOLUTION OF THE SOLE ISSUE
My lords, the sole issue for determination, which is the sole issue as distilled in the Respondent’s brief, deals directly with the question whether or not the Court below was right when it held that, on the evidence both oral and documentary placed before it by the parties, the Respondent proved its case of Criminal Conspiracy and Culpable Homicide punishable with death as alleged against the Appellant beyond reasonable doubt as required by law and for which it convicted and sentenced the Appellant to death? However, I note that proof beyond reasonable doubt does not mean proof beyond all shadow of doubts. See Section 135 of the Evidence Act 2011. See also Miller V. Minister of Pensions (1974) 2 All ER 372; Nkebisi V. State (2010) 5 NWLR 421; Ndidi V. The State (2007) All FWLR (Pt. 338) 1617 @ p. 163; Omotola V. The State (2008) 2 FWLR (Pt. 418) P. 2190; Udosen V. The State (2007) 4 FWLR (Pt. 388) 5721.

I thought I should proceed with the known position of the law that we sitting here as appellate justices, who have not seen the witnesses testify and observed their demeanor in the witness stand, should respect the views of the Court below and we are not readily to substitute our own views for that of the Court below, which saw and heard the witnesses testify and also, but very crucially, observed their demeanor unless and except where it is shown that the conclusion and or finding reached by the Court below was perverse. See Saeed V. Yakowa (2013) All FWLR (Pt. 692) 1650 @ P. 1681. See also Obajimi V. Adediji (2008) 3 NWLR (Pt. 1075) 1 @ p. 19; Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1249 @ P. 1302.

On the one hand, in a Count, as in Count 1, alleging Criminal Conspiracy, the law is that the Respondent, being the Prosecution before the Court below, was under the duty to prove beyond reasonable doubt, though not fanciful doubt, by credible and cogent evidence all the following essential elements of the offence of Criminal Conspiracy, namely: that there was an agreement between two or more persons; the agreement was to do or cause to be done some illegal act or legal act by illegal means; and that the individuals participated in the agreement with each other, accused persons. See Garba V. COP (2007) 16 NWLR (Pt. 1060) 378 @ p. 405.

On the other hand, in a Count, as in Count 2, alleging Culpable Homicide punishable with death, the law is that the Respondent, being the Prosecution before the Court below, was under the duty to prove beyond reasonable doubt, though not beyond every shadow of doubt or to the hilt, by credible and cogent evidence all the following essential elements of the offence of Culpable Homicide punishable with death, namely: that the death of the deceased; that the death of the deceased was caused by the Appellant, and that the act or omission of the Appellant that caused the death of the deceased was intentional, with the knowledge that death was the probable or likely consequences of the act. See Section 221 of the Penal Code. See also Deriba V. The State (2016) LPELR- 40345 (CA) per Georgewill JCA; Michael V. The State (2008) LPELR-1874 (SC) @ p. 20; Isma’il V. The State (2011) LPELR-9352;Dare Kada V. State(1991) 8 NWLR (Pt. 208) 134 @ p. 154.

So, what then are the pieces of evidence led by the parties, the Respondent as Prosecution and on whom the burden of proof beyond reasonable doubt strictly lies and never shifts, and the Appellant, whose innocence is presumed until proved guilty, on Counts 1 and 2 with which the Appellant was charged before the Court below and on which the Court below reached its conclusions that the Appellant was guilty on both Counts and convicted the Appellant and sentenced to death?
On the part of the Respondent, PWI was presented as the star witness. He is the son of the decease and justifiably pained as any person would be at the death of a father not naturally but at the hands of alleged killers. In his evidence he stated inter alia that he knows the Appellant and his Co – Accused persons, who together robbed and killed his father, Nathaniel Onu on 27/6/2018 at Ojuwo Onicha Igo in Ofu L.G.A. he stated also that at about 3. 00am on the said date he received a call at Lagos from one Hon. Isaiah Igba Iman of Ojuwo Onitsha Igo that some armed robbers went to his father’s house. Three days later, being 29/6/2018, he returned home and proceeded to the hospital at Anyigba where he saw the corpse of his late father. He also went to see the Police investigating team at Ugwolawo Division. However, in respect of the Appellant, after the arrest of the 1st Accused person, the Police intensified effort and the Appellant was later arrested and when he asked him why they killed his father, the Appellant told him that it was the 3rd Accused person that enlisted them to rob the deceased and that their intention was a rob and not to kill the deceased. See pages 48-49 of the Record of Appeal.

PW2, was one Sgt. AbdulRazaq Emokpaire. He investigated the matter at the Divisional Crime Branch, Ugwolawo. He stated inter alia that following the complaint, the D.P.O lead team of detectives to the scene of crime where photographs of the deceased were taken before the corpse was deposited in the mortuary and post-mortem examinations carried out. The 1st Accused person was later arrested at Egume on the 24/7/2018, while the Appellant was arrested at Ogugu on 28/7/2018 and they each volunteered confessional statements, which were admitted in evidence as Exhibits P3 and P4. The matter was later transferred to the State CID Lokoja while efforts were on to apprehend the 3rd Accused person.

PW3 was one Ladi Nathaniel, a daughter of the deceased. She stated inter alia that on 27/6/2018 she was sleeping when she heard sound from the door to her father’s room. She opened the window and saw somebody at the back of the house who ordered her to close the window. She heard her father screaming and later when the screaming had subsided, one of the attackers, the 3rd Accused forced open the door to her room and demanded money from her mother who said she had no money and the attackers later shot into the air and departed and she rushed to her father’s room to find him dead. She maintained that she knew the Accused persons before the incidents as they lived together and that she mentioned their names to the Police in her extra – judicial statement tendered as Exhibits P5.

PW4, was one Sgt. Edibo Monday of the State CID, Lokoja. He stated inter alia that he and his colleague, one Sgt. Olasanmi recorded the confessional statements of 1st Accused person and the Appellant but these extra judicial were subsequently rejected in evidence after a trial within trial as ordered by the Court below. However, the statement of the 3rd Accused was admitted in evidence as Exhibit P6 and he also tendered in evidence the Coroner Forms, which were admitted as Exhibits P7 (a) – P7(e).

PW5, was one Mr. Daniel Momoh Negedu. He stated inter alia that he knows the 1st Accused person who is married to his cousin and that on the night of 14/7/2018, a group of persons forcefully broke into his house but he successfully repelled them by pouring acid on them. After about five days, the 1st Accused person was seen with acid burns and was later arrested and he confessed to killing the deceased.

In his defense, the Appellant denied the offences as alleged against him and stated inter alia that on the fateful night of 27/6/2018 he was in his father’s house and he also denied making any statement to the Police Station in Ugwolawo.
DW1, was one Mr. Gideon Abu, the father of the Appellant. He stated inter alia on the night of 26/6/2018 when deceased was killed, he was in the house with his wife and the Appellant where they all slept together in the same room. His statement to the Police was admitted in evidence as Exhibit D1.

It was on the strength of the above pieces of evidence, both oral and documentary as led by the parties and as in the Record of Appeal that the Court below delivered its judgment on 14/7/2020, convicting the Appellant on both Counts 1 and 2 and sentencing him to death, stating and holding inter alia thus:
“In the circumstance, I find as a fact that the Defendants agreed to attack, rob or kill the deceased and that the deceased was killed in pursuance of the agreement by the acts of the Defendants…Accordingly, I find that the two offences alleged against the defendants have been proved in the standard prescribed. The defendants are each convicted and liable to the mandatory sentence of death. Orders are made accordingly.” See pages 81 – 91 of the Record of Appeal.

My lords, having taken time to review the evidence as led by the Respondent, through PW1, PW2, PW3, PW4 and PW5, coupled with Exhibits P1, P2, P5, P6 and P7(a) – (e), it is clear to me, and happily both parties are ad idem, that there is no single eye witness account of what transpired on the night of 27/6/2018, when the deceased allegedly met his death in the hands of his alleged assailants from injuries inflicted on him with ‘iron rod’ and resulting from a robbery. None of the Respondent’s witnesses, including PW3, a daughter to the deceased, mentioned the name of the Appellant to the Police during the investigation when the matters were supposedly and truly, ought to be, fresh in their memories.

Now, from the essential elements of the offence of Criminal Conspiracy under Section 97(1) of the Penal Code and as set out earlier in this judgment, and having reviewed the entirety of the evidence as led by the Respondent, can it be safely said that the Respondent, had through the evidence of PW1, PW5 and DW1 proved the offence of Criminal Conspiracy as alleged against the Appellant as was found by the Court below and as was vehemently contended for the Respondent in this appeal? I think not! The evidence of the PW1, in its entirety is nothing but hearsay evidence obtained long after the alleged commission of the alleged offences by the Appellant, who the PW1 only came in contact with upon his arrest and detention by the Police at the Ugwolawo Division much after the alleged incident. I note that the PW1 is not only the son of the deceased but also a Police Officer, yet the demarcation ought to have been drawn and kept consciously in view, that the PW1 was not an investigating Police Officer in the allegations made against the Appellant. His entire evidence was the product of his own unofficial and unauthorized investigation and not a single iota of what he personally witnesses. PW5, merely gave evidence of what transpired on the night of 14/6/2018 and never mentioned the name of the Appellant as one of the persons that had attempted to rob him.
I therefore, find the almost total and complete reliance on his evidence, which at best were pure hearsay evidence of the PW1, and the inconsequential evidence of PW5 and DW1 along with Exhibit D1, by both the Court below in arriving at its finding of guilt on Count 1 against the Appellant and the learned counsel for the Respondent as justification for the decisions of the Court below as benumbing, preposterous, regrettable and gravely erroneous. I feel aghast that the evidence of the PW1 and DW1 were even accorded any probative value at all against the Appellant by the Court below. Their evidence, in its totality, ought to have been discarded and discountenanced in its entirety by the Court below. They were worthless pieces of evidence in so far as the issue in contest was the determination of who and who had on 27/6/2018 conspired, robbed and killed the deceased and not who is indeed the son of the deceased or father of the Appellant.

In relation to Exhibit D1, the extra judicial statement of the DW1, the father of the Appellant, it is so curious and appalling to me that the Court below choose to pick which part of it to believe solely for the purpose of finding the Appellant guilty rather than rejecting in its entirety for being self – contradictory and inherently self – inconsistent, but which the learned counsel for the Respondent had, following the folly of the Court below, termed as admission against self – interest capable of securing the conviction of the Appellant on the offences with which he was charged and put to trial before the Court below by the Respondent.

In Exhibit D1, the DW1 had in one breadth stated that when the alleged incident took place, he had promptly confronted the Appellant, his son, to find out if he has anything to do with the alleged commission of the alleged offences and the Appellant had told him that he knew nothing about the incident as he was in his house on the night of the alleged incident. The Court below saw nothing good in this part of Exhibit D1. So, also the learned counsel for the Respondent going by the tenor of his submissions in this appeal. In another breadth, the DW1 had in the same Exhibit D1 stated that when the Police later, almost one month after, upon the arrest of the Appellant, brought him before the DW1, the Appellant then confessed to have taken part in the commission of the alleged offences. See page 90 of the Record of Appeal. The above was all the Court below needed to latch unto in finding the Appellant guilty coupled with the complete hearsay evidence of the PW1. Oh, what a travesty of justice! What would make the Court below to believe the version of the facts which took place more than one month after the incident and after the Appellant had been arrested and detained by the Police in preference to the version of the facts that took place contemporaneously with the commission of the alleged offence? No such reason was proffered in the judgment of the Court below. The learned counsel for the Respondent, seeking to justify this ridiculous preference by the Court below, did not also show any reason why a part of the same Exhibit D1 that exculpates the Appellant was or must be jettisoned for the latter inconsistent part thereof, rather than discountenancing Exhibit D1 in its entirety.

I therefore, cannot see any redeemable feature in the grave error of the Court below regrettably relying on the inadmissible hearsay evidence of the PW1 and the self – contradictory and self – inconsistent contents of Exhibit D1 of the DW1 in finding the Appellant guilty of the offence of Criminal Conspiracy on the face of the total absence of any facts from which any form of conspiracy or agreement or common intention between the Appellant and his Co – Accused persons can be inferred against the Appellant. More, so when all the extra – judicial statements of the Appellant had rightly either been expunged in the judgment of the Court below or earlier rejected by the Court below after the trial within trial as having not been made voluntarily as required by law.

My lords, in relation to the offence of Culpable Homicide punishable with death under Section 221 of the Penal Code, I have taken time to review and consider the totality of the evidence led by the Respondent, through PW1, PW2, PW3, PW4 and PW5, coupled with Exhibits P1, P2, P5, P6 and P7(a) – (e), and it seems very clear to me that none of these witnesses either mentioned the name of the Appellant to the Police or stated that he was amongst the person who on the night of 27/6/2018 robbed and killed the deceased. I have looked at Exhibit P5, the extra judicial statement made by PW3 to the Police and I find that it does not contain the name of the Appellant as she had lied on oath in her evidence before the Court below. Not, even one single evidence was given to that effect by these witnesses and it is understandably so since none of these witnesses directly witnessed the alleged incident of the night of 27/6/2018 to give a direct eye witness account of same before the Court below.

However, be the above state of facts and evidence as it may, I am aware that in criminal trials the Prosecution, such as the Respondent, has open to it three types of evidence with which to prove the guilt of an Accused person beyond reasonable doubt as required by law. These three types of evidence are, namely: Direct eye witness account, Confessional statement and Circumstantial evidence. See Deriba V. State (2016) LPELR – 40345(CA), where this Court had per Georgewill JCA, opined inter alia thus:
“However, it must be pointed out at once that in proving the guilt of an Accused person, the Prosecution has open to it three basic types of evidence with which to prove the guilt of accused person, namely; 1: Confessional statement; 2: Circumstantial evidence and 3: Evidence of eye witness. See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.”

So, in the absence of any evidence of direct eye witness account of the alleged commission of the offence of Culpable Homicide punishable with death, did the Respondent prove the allegation of Culpable Homicide punishable with death against the Appellant beyond reasonable doubt by any of the other types of evidence, namely: Confession or Circumstantial evidence as required of it by law?

At the trial before the Court below as in the Record of Appeal, when the Respondent sought to tender the extra judicial statement of the Appellant through the PW4 it was promptly objected to on the ground that it was not made voluntarily by the Appellant to the Police at the State CID Lokoja as required by law. The Court below rightly ordered for a trial within trial to determine the voluntariness or otherwise of the extra judicial statement of the Appellant and at the conclusion of the trial within trial it found that the extra judicial statement of the Appellant was not made voluntarily as required by law and it was thereby rejected in evidence.
However, it would appear that the Appellant made another extra judicial statement to the Divisional Crime Branch, Ugwolawo before he was transferred to the Police at Lokoja and the Court below, in circumstances not readily shown in the Record of Appeal, with which this Court, as well as the parties are bound, admitted this extra judicial statement of the Appellant in evidence but which in the judgment appealed against it found was also not made voluntarily by the Appellant and therefore, inadmissible in evidence and had accordingly expunged same from its record. It follows therefore, there was also no single confessional statement of the Appellant admitted in evidence before the Court below on which the Court below could have found the Appellant guilty of the alleged offence of Culpable Homicide punishable with death.

However, faced with the above devastating scenario, the Respondent had raised the issue of positive and compelling circumstantial evidence as being the basis on which the Appellant was convicted by the Court below. 

I have taken a very calm look at the entirety of the judgment of the Court below and clearly and truly there is not a single reference to or reliance on any single iota of circumstantial evidence by the Court below, which was very clear in its judgment that it found the Appellant guilty on the corroborated retracted extra judicial confessional statement of the Appellant, amply supported by the extra judicial statement of DW1, the father of the Appellant admitted in evidence as Exhibit D1.

​My lords, in law, a Respondent who had not filed a Respondent’s Notice cannot, as he is not at liberty to, urge on this Court to affirm the judgment of the Court below on any other ground than the ground relied upon by the Court below. The Respondent in this appeal did not file any Respondent’s Notice of intention to contend that the judgment of the Court below should be affirmed on grounds of positive and compelling circumstantial evidence as different from the grounds of retracted but corroborated extra judicial confessional statement of the Appellant used by the Court below to convict the Appellant. 

See Order 9 Rule 2 of the Court of Appeal Rules 2021. See also IGP & Ors V. Ikpila & Anor (2015) LPELR – 40630 (CA) per Georgewill JCA, where this Court had on the purport of a Respondent’s Notice, opined inter alia thus:
“Now, the purpose of a Respondent’s Notice is that the judgment or decision appealed against should be affirmed on grounds other than those relied upon by the Court below in reaching its decision appealed against…A Respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds other than those relied upon by that Court, must give notice to that effect specifying the grounds of that contention.”

Thus, the onus was squarely on the Respondent to prove the cause of death of the deceased and that the death of the deceased was caused by the intentional act of the Appellant. In other words, it must be shown not only that the deceased had died, but also that he died as a result of the act of the Appellant and which act or omission was done intentionally with the knowledge that death was the probable or likely consequences of the act. From the evidence of the PW1, PW2, PW3 and PW5, coupled with Exhibits P1, P2, P5, P6 and 7(a) – (e), I have no doubt in my mind that the deceased had died. PW1 testified that on his return home from Lagos three days after the alleged incident he went to the morgue at the Hospital at Anyigba where he saw the corpse of his late father. I hold therefore, that the Court below was right when it held, and quite rightly too in my view, that the death of the deceased was duly established by the Respondent. See Adamu V. Kano N.A. (1956) 1 FSC 25.

Having proved that the deceased had died, the onus was still strictly on the Respondent to prove the cause of death of the deceased, since in law death per se is not a basis for prosecution for Culpable Homicide punishable with death unless it is proved that the death was caused by the act of the Accused intentionally with the knowledge that death was the probable consequence of the act or omission. What then was the cause of the death of the deceased?
​In every prosecution for Culpable Homicide punishable with death, the cause of death is a very essential ingredient that must be established with cogent and positive evidence by the Prosecution, without which there would be no necessity for any further inquiry into who caused the death of the deceased. See Sule Ahmed (Alias Eza) V. The State (2002) All FWLR (Pt. 90) 1358 @ p. 1372, where the Supreme Court had opined inter alia thus:
“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 act of the accused and the biological cause of death”.
See also Ebong & Anor V. The State (2012) All FWLR (Pt. 633) 1945 @ pp. 966 -967; Sunday Omonuju V. The State (1976) 5 SC 1; Frank Onyenankeya V. The State (1964) NMLR 34.

In Count 2, the particulars of the offence of Culpable Homicide punishable with death was stated to be as a result of injuries sustained by the deceased with the use of ‘iron rod’ on his head by the Appellant and his Co – Accused persons. However, the medical personal who conducted the autopsy on the deceased and issued Exhibit P7(d) was not called to testify but the medical report was tendered in evidence by PW4, a Police Sergeant, who is a non – medical personnel, and therefore, not even in a position to be cross examined over a medical report he did not issue.
It was submitted for the Appellant that the medical report in Exhibit 7(d) was both uncertified and tendered by a person who was not its maker and that in law the refusal by the Respondent to call the medical personnel who issued the medical report to testify amounted to withholding of evidence and the Court was urged to invoke the provisions of Section 167(d) of the Evidence Act 2011 against the Respondent and hold that the medical personnel was not called because the Respondent knew that if he had been called to testify his evidence would have been unfavorable to the Prosecution.

My lords, even before proceeding to review the submission of learned counsel for the Respondent on this issue of the invocation of provisions of Section 167(d) of the Evidence Act 2011 against the Respondent, I thought I should point it out at once, that the Section 167(d) of the Evidence Act 2011 does not deal with a refusal to call witness but withholding of evidence. Thus, in the instant appeal, where the evidence as in Exhibit 7(d) has already been produced by the Respondent in evidence, the failure to call the medical personnel that issued the medical report, though it may have its own consequences in law, including its weight and probative value, does not in law raise any presumption associated with withholding of evidence since no evidence in this regard was withheld by the Respondent.

It was submitted for the Respondent that by law, the Respondent having produced in evidence the medical report in Exhibit P7 (d), there was no further requirement that the medical personnel that issued it must also be produced to testify in all circumstances before a medical report establishing the cause of death can be acted upon by the Court below to find the cause of death as having been duly established. Our attention was drawn to the provisions of Section 55 (1) and (2) of the Evidence Act 2011.

Now, there was before the Court below evidence, even from DW1, the father of the Appellant that the deceased died following the attack on him the night before he confronted his son, the Appellant and who had denied any knowledge of the attack on the deceased. This was just the morning following the night of the alleged attack on the deceased. There was also evidence in Exhibit 7(d) from the Hospital at Anyigba that the deceased was ‘brought in dead, secondary to assault’. See page 7 of the Record of Appeal.

Now, it is the law that if the deceased is shown to have died on the spot after the attack, even medical evidence could be dispensed with since the Court can infer the cause of death from the facts and circumstances led in evidence before it. Thus, for instance where the deceased was either shot point blank at close range on the head or hit on the head with a lethal weapon and he died on the spot or contemporaneously, there would hardly be any issue as to the cause of death to becloud the determination of the real question of who, and no longer what, caused his death.
It follows therefore, that there exist instances where medical evidence may be dispensed with in the proof of the cause of death of the deceased, but such evidence must be capable of showing that the death of the deceased occurred instantly or contemporaneously with the act of the Accused person. In the instant appeal, I am satisfied that the death of the deceased occurred contemporaneously with his alleged attack on the night of 27/6/2018 and therefore, notwithstanding the presence of Exhibit 7(d), which was therefore, a surplusage, there was really no necessity for any medical evidence of his cause of death. See Frank Onyenankeya V. State (1964) LPELR-25198(SC) @ p. 3.

In the circumstances of the evidence of the facts and circumstances leading to the death of the deceased as led before the Court below therefore, I consider the issue of the effect of the failure to call the medical personnel who issued the medical report in Exhibit P7(d) as being neither here nor there as it was in law within the Appellant’s legitimate right at the trial before the Court below for his counsel to have specifically requested that the said medical personnel be produced for the sole purpose of his being cross examined by the Appellant’s counsel. There was no such application in the Record of Appeal and I cannot therefore, but discountenance the submissions on the call to invoke the provisions of Section 167(d) of the Evidence Act 2011 against the Respondent as going to no issue at all!

My lords, having determined before now that the Respondent duly established that the deceased had died, and having now found that the Respondent had also duly established the cause of death of the deceased, that he died instantly from injuries he sustained resulting from his being hit on the head with an ‘Iron Rod’ on the night of 27/6/2018, the only crucial issue on which the success or failure of this appeal would now depend, is whether the Respondent proved by cogent and credible evidence that it was the act of the Appellant that caused the death of the deceased on that fateful night of 27/6/2018, whilst the deceased was in the comfort and sanctuary of his home?
In the judgment of the Court below, regrettably it made a 360 degree summersault when after taking time to conduct a trial within trial and rejecting as involuntary the extra – judicial confessional statement of the Appellant made to the Police at State CID Lokoja and also expunging the earlier extra – judicial statement made to the Police at the Crime Division, Ugwolawo, it proceeded to indulge itself in self- confusing and clearly inconsistent analysis of when in law a retracted extra judicial confessional statement of an Accused person can be used to secure the conviction of an Accused person and discussing factors to be considered in such circumstances, which are completely inapplicable and unavailable in the circumstances of this case in which the Court below had completely and totally, and quite rightly too in my view, rejected and expunged all the extra – judicial statements ascribed to the Appellant by the Police and the Respondent.

At the conclusion of the trial within trial ordered by it, the Court below had in is ruling delivered on 29/1/2020, held inter alia thus:
“…In this case, there is evidence from PW1 under cross – examination that neither of the Defendants had their lawyer or relation present when the statements were being recorded. What is more, there is corresponding evidence from the presence of their lawyers and relations but the requests were not granted. Against this background I see no reason why the Prosecution/Police should be allowed to take advantage of its failure to comply with the Defendant statutory provision. Accordingly, the purported confessional statements of 1st and 2nd Defendants allegedly made at State CID on the 26/7/2018 and 31/7 2018 respective are rejected in evidence and shall be so marked. See pages 70 – 71 of the Record of Appeal.

In tandem with the above finding on the extra judicial statement of the Appellant, in the judgment delivered 24/7/2020, the Court below had proceeded to hold and state inter alia thus:
“I resolve the benefit of doubt in favor of the 1st and 2nd Defendants and hold that Exhibits P3 and P4 are not the confessional statements referred to in the evidence of PW2… Consequently, the said confessional statements shall be discountenanced in the consideration of prosecution’s case.”

My lords, curiously, and in a very dumfounding and confounding manner and in a totally inexplicable summersault, the Court below had, in its judgment delivered 24/7/2020, despite its repeated and unequivocal decision in the trial within trial and even earlier in its judgment, proceeded to state and hold as follows:
“Notwithstanding the findings and view expressed above, the evidence of PW1, PW2 and PW5 are clear and unequivocal that the Defendants admitted committing the offences…1 consider the evidence of PW1 on the fact to be instructive….In determining the truthfulness or otherwise of the confession, the Court is enjoined to consider a number of factors… Suffice to say in the circumstances of this case that there is no evidence or fact which indicates or suggests that the confessions alleged by PW1 were not voluntary or that they were procured through unlawful means… Although the confession was retracted it can nonetheless sustain a conviction in view of its veracity as demonstrated above. Suffice to emphasis that if doubt existed as regard the oral confessions, the corroboration furnished by the evidence of the witnesses completely extinguished the doubt(s)…” See pages 81 – 91 of the Record of Appeal”.

Now, in law when an alleged extra judicial confessional statement is rejected in evidence after a trial within trial on the ground that it was not made voluntarily as prescribed by Sections 28 and 29 of the Evidence Act 2011, that is the end of that extra judicial confessional statement. It has been pronounced dead and can no longer be resurrected from the dead by the same Court in the same trial, not even in its judgment. Thus, it is no longer any evidence of any confession, or even at best of a retracted confession, available on which the Court below can consider if there are other pieces of evidence confirming it to be true. Only this Court can resurrect such a rejected extra judicial statement if there is a successful appeal or cross appeal against its rejection by the Court below. There is no such appeal or cross appeal against the rejection of the second extra judicial statement and expunging of the first extra judicial statement ascribed to the Appellant by the Police.
​Thus, in law a rejected and or expunged extra judicial confessional statement is not the same as a retracted extra judicial confessional statement, which in law is nevertheless admissible in evidence, and can be used against an Accused person once there are other evidences outside of the retracted extra judicial confessional statement confirming that the retracted extra judicial confessional statement is true. However, it is certainly not so with a rejected and or expunged extra judicial confessional statement as such a rejected and or expunged extra judicial confessional statement remains rejected and or expunged for all purposes and is never any longer evidence before the Court. It can therefore, be put to absolutely no purpose any longer in the trial of the Appellant and in the judgment of the Court below.
The Court below was therefore, hopelessly and irredeemably in grave and unpardonable error when it still proceeded to treat the rejected and or expunged extra judicial confessional statements of the Appellant as merely amounting to a retracted extra judicial confessional statement which it can still use in addition to other independent evidence confirming its truthfulness to convict the Appellant as it most awfully and erroneously did. No, it cannot do so!
​Having held firmly that the Court below had already, and quite rightly too in my view, rejected and expunged all the extra judicial confessional statements ascribed to the Appellant by the Police, I therefore, consider all the submissions on the position of the law on confessional statements, retracted confessional statements, and facts to be considered in determining the truthfulness of a retraced confessional statements as in law going to no issues at all in this appeal. See Sections 28 and 29(4) of the Evidence Act 2011; Section 28 (2) of the Administration of Criminal Justice Law of Kogi State 2017. See also Kasa V. The State (1994) 1 SC 18A @ p. 28; Akpan V. State (1992) 6 NWLR (Pt. 248) 439 @ p. 468; Matthew V. State (2018) LPELR – 43941 (SC) @ pp. 45 – 49.

I also consider all the submissions on when in law conviction in a criminal trial can be secured on the basis of circumstantial evidence as also going to no issues at all in this appeal, in the absence of any Respondent’s Notice of intention to so contend in this appeal, since the Court below never and did not rely on any form of circumstantial evidence in convicting the Appellant. See IGP & Ors V. Ikpila & Anor (2015) LPELR-40630(CA) per Georgewill JCA.
My lords, there was therefore, in my finding not an iota of single evidence linking the Appellant to the alleged offences of Criminal Conspiracy and or Culpable Homicide punishable with death for which he could by justly and lawfully convicted as was, so perversely, done by the Court below. The Respondent failed woefully to prove both Counts 1 and 2 against the Appellant beyond reasonable doubt as required by law. I am even prepared to hold that even if the standard of proof were to be on a balance of probability or preponderance of evidence, of which it is not in law, the Respondent would still have failed to prove both Counts 1 and 2 against the Appellant.
The Appellant was thus not even under any duty to lead any evidence in his defence since he is not by law required to prove his innocence. He is by law presumed innocent until the contrary is proved by the Respondent beyond reasonable doubt as required by law. In the absence of one of the essential elements of the offence of culpable homicide punishable with death, namely, that it was the act of the Appellant that caused the death of the deceased, there was indeed nothing left in Count 2 over which the Appellant should defend himself.
It follows therefore, the need to consider all defences available to the Appellant did not even arise in this appeal, which would have arisen had the Respondent made out at least a prima facie case against the Appellant by proving all the elements of the offences charged in both Counts 1 and 2, in order to require the Appellant to enter upon his defence. See Saheed V. State (2018) LPELR – 46675 (CA) @ pp. 40 – 41, where this Court had per Georgewilll JCA, stated inter alia thus:
“In all criminal trials, it is incumbent upon the Trial Court to consider all the defenses put up by the accused person either expressly or impliedly as apparent on the evidence and therefore, no matter whether the defense is full of figments of imagination, or is fanciful or bereft of reason and or based on lies or even doubtful, the Court must not be weary to give them due consideration. An Accused person is in law entitled to all the defenses open and available to him on the evidence before the Court whether specifically raised by him or not and thus must be fully considered by the Court. “

My lords, as I bring this judgment to a close, I thought I should just say a word or two on the plea of alibi raised by the Appellant only in his evidence at the witness stand during the trial before the Court below by relying on the wise statement of the law by the Apex Court. In Aremu V. The State (1991) 7 NWLR (Pt. 201)1, the Supreme Court had opined inter alia thus:
“A defence of alibi raised for the first time from the witness box cannot be considered as a serious defence but merely as an afterthought. An accused person who sets up a defence of alibi, must do so unequivocally during the investigation of the case and not during the hearing of evidence. Furthermore, the accused must give some explanation of where he was and who could know of his presence at that other place at the material time of the commission of the offence. In the instant case, the appellant did not raise the defence of Alibi during investigation but only raised it during cross-examination while giving evidence in Court, and it was right for the trial Court to ignore the defence having not been properly raised’’.

A trial Court, like the Court below, being the master of the facts, must base its inferences, evaluation or assessment and findings on the available evidence adduced before it and therefore, if its findings must stand it must not be premised on extraneous facts or matters or conjectures outside the evidence given at the trial. In law therefore, the conviction of an Accused person must be supported and founded on credible evidence, which must be cogent and must not create room for speculation or doubt and if it does it is liable to be set aside on appeal. See Eiche Mendrick V. The State of Lagos (2018) LPELR-45549(CA) per Georgewill JCA. See also Emeka V. The State (2014) LPELR 23020 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220) 584; The State V. Musa Danjuma (1997) 3216 (SC) 1.
​In law, conviction for any offence can only be secured based on proof by sufficient, credible and cogent evidence in satisfaction of all the essential elements of the offence charged, failing which an Accused person is entitled to be discharged and acquitted. However, in proving the guilt of an Accused beyond reasonable doubt, and which does not impose on the Respondent any greater duty than it simply entails, namely; proof of all the essential ingredients of the offence charged beyond reasonable and not proof beyond all shadow of doubt or proof to the hilt. See Emmanuel Eke V. The State (2011) 200 LRCN 143 @ p. 149. See also Deriba V. State (2016) LPELR- 40345 (CA) per Georgewill JCA.
My lords, in a charge alleging the gravest of offences and carrying the death penalty upon conviction, the Respondent must prove by credible evidence the guilt of the Appellant beyond reasonable doubt as required by law under Section 135(1) of the Evidence Act, 2011. In so doing, the clearest of evidence invoking neither doubt nor mere passion or compassion in the judge is needed in proof of all offences, particularly offences which by law carries the capital punishment upon conviction.
Thus, in law where such evidence is lacking, as in the case presented by the Respondent, it would even be immaterial that an Accused person gave unreliable evidence in his defense or that he prevaricated in his cross examination or even that he lied out rightly in his evidence. He is still entitled to an acquittal. This may sound harsh against the Respondent, and may not even be easily comprehended or appreciated by the untrained mind in the ways of the law, yet it is the law that even a lying Accused person against whom the Prosecution has not made out a case as would warrant his conviction is still entitled to an acquittal. It is the law! See Ajose V. FRN (2011) 6 NWLR (Pt. 1244) 465 @ p. 470.
In the circumstances therefore, the conviction of the Appellant and his sentence to death by the Court below based on complete hearsay and inconsequential evidence and rejected and expunged extra judicial confessional statements, was clearly very perverse and most unjust. I find it even so outrageous to say the least but I shall say no more!
​My lords, while the guilty proved beyond reasonable doubt must be punished according to law, the innocent must be set free and not punished for no offence committed! The sentence of death upon conviction for culpable homicide punishable with death is not to be handed down carelessly, thoughtlessly and lackadaisically without clear evidence of the guilt of the Accused person. It is only to be passed when it is clear that the Accused person has been proved to have committed the offence alleged against him by the State beyond reasonable doubt.
Indeed, the reasoning behind such a judgment sending a man to the gallows must be clear on the face of the judgment, and if I may add should be impeccable and the product of logical thinking and of sound legal deductions. See Felix Nwosu V. The State (1986) 5 NWLR (Pt. 348) 359, where Eso JSC., (God bless his soul) had waxed thus:
“A judgment sending a man to the gallows must be seen to be the product of logical thinking based upon admissible evidence which facts lead to conviction as clearly found and the legal deduction thereupon carefully made. It must not be allowed to stand if it is founded upon scraggy reasoning”
My Lords, I find the conviction and sentence of the Appellant to death by the Court below on the paucity of the evidence led and which did not in any credible way link the Appellant to the commission of the alleged offences as very unfortunate. It is grossly perverse and cannot be allowed to stand. In this vein, I call to remembrance the evergreen words of Obaseki JSC., in Saidu V. The State (1982) 1 NLR 49 @ p. 67, poignantly and poetically capturing as it were the finer principle of law on the need for Courts to refrain from convicting and sentencing Accused person to Prison, much more to death, on evidence not proving their guilt beyond reasonable doubt thus; “It does not give the Court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law, in our law Courts, they are entitled to walk about our streets and tread the Nigerian soil and breathe the Nigerian air as free as innocent men and women.”
What more do I need to say on this issue? None I can think of than to simply bow to the ingrained sense of wisdom and justice in the above statement of the law by no less a Court than the Apex Court in the land, and so I bow.
The Appellant is an innocent man, on the entirety of the evidence as led in the record of appeal and he is by law entitled to be discharged and acquitted of both Counts 1 and 2 and to be set free to regain and enjoy his freedom once again and to pick up the bits and pieces of his life, which had been unjustly and needlessly put on hold all the years he had languished in Prison custody while awaiting trial and later on death row awaiting the hangman noose over offences he did not commit.

On the totality of the evidence led by the parties therefore, I hold that the decision of the Court below finding the Appellant guilty on either or both of Counts I and was perverse! In law, such perverse findings and conclusions are liable to be set aside so that proper findings and conclusions, as already made in this judgment, as dictated by the evidence led by the parties and the course of justice are made. See Re: Glaxo Smithkline Consumer Nigeria Plc. (Miss Funmilayo Rotola Ayodele Williams V. Glaxo Smithkline Consumer Nigeria Plc. (2019) LPELR – 47498 (CA), where this Court per Georgewill JCA, had reiterated inter alia thus:
“A decision of a Court is perverse when it ignore the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such decision and set it aside.”
See also Ogunde V. Abdulsalam (2017) LPELR – 41875 (CA) per Georgewill JCA @ pp 35 – 35;Obajimi V. Adediji (2008) 3 NWLR (Pt. 1075) 1 @ p. 19.

Consequently, in the light of all the findings above, I have no difficulty resolving the sole issue one in favor of the Appellant against the Respondent. On the whole therefore, having resolved the sole issue in favor of the Appellant against the Respondent, I hold that the appeal has merit and ought to be allowed. Accordingly, it is hereby allowed.
In the result, the Judgment of the High Court of Kogi State Coram: F. Folajobi Ajayi J, in Charge No. DHC/4C/2019: The State V. Friday Rueben & Ors delivered on 14/7/2020, in which the Appellant was convicted for the offences of Criminal Conspiracy and Culpable Homicide contrary to Sections 97(1) and 221 of the Penal Code and was sentenced to death, is hereby set aside.
In its stead, the Appellant is hereby discharged and acquitted on both Counts 1 and 2 as laid before the Court below in Charge No. DHC/4C/2019: The State V. Friday Rueben & Ors. The Appellant having been found to be innocent, at least at this level of the hierarchy of Courts in this country, he is free to live once again. Free at last!

HARUNA SIMON TSAMMANI, J.C.A.: I read in advance, the draft of the judgment delivered by my learned brother Biobele Abraham Georgewill, JCA.
My learned brother has admirably and exhaustively considered and resolved the germane issues that came up for determination in this appeal. I agree with the reasoning and conclusion arrived at by my learned brother. Particularly, I agree that non of the recognised ways of proving the commission of an offence availed the prosecution, on the facts on the record of appeal. Indeed, there was no direct eye witness to the commission of the crime charged. The alleged confessional statement of the Appellant was rejected as it was not duly proved, and therefore of no evidential value. Worse of all, there was no iota of evidence that linked the Appellant, even circumstantially, to the commission of the offences for which he was tried. The prosecution therefore, failed to prove the essential ingredients of the offence charge, particularly when the Appellant was never identified as one of the persons that committed the offence.

On that note, I agree with my learned brother that the learned trial Judge erred when he convicted the Appellant of the offences charged. This appeal is meritorious, and accordingly allowed. The appellant is hereby acquitted and discharged on both counts. The conviction and sentence passed on the Appellant are hereby set aside.

BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the Judgment just delivered by my learned brother Sir Biobele Abraham Georgewill, JCA. I am in full agreement with the illuminating reasonings expressed by my lord in the lead Judgment as well as the decisions he arrived at on this Appeal. I adopt those reasonings as mine by which I too uphold this Appeal and set aside the conviction and sentence of the Appellant on both counts of criminal conspiracy under Section 97(1) and culpable homicide punishable by death under Section 221 of the Penal Code in charge number DHC/4C/2019.

​In effect, the Appellant Timothy Abu is accordingly hereby discharged and acquitted.

Appearances:

The Appellant’s Counsel, though served with hearing notice on 12/1/2022, did not appear at the hearing of the Appeal For Appellant(s)

Liman Salihu, Esq., holding the fiat of the Hon Attorney General of Kogi State. For Respondent(s)