ADAMU v. STATE (2020)

ADAMU v. STATE

(2020)LCN/14558(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, August 28, 2020

CA/K/385A/C/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

ISAH ADAMU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE MEANING OF THE TERM “ALIBI”

“Alibi”, a Latin word literally means “elsewhere” that the accused was elsewhere other than the scene of crime at the material time of the commission of the crime. “Alibi”, is a defence founded on the physical impossibility of the accused person being at two different places at the same time not being capable of having the quality of omnipresence. The defence places the accused at a location other than the scene of crime at the relevant time. See EZE VS THE STATE (1976) SC 176; IDEMUDIA VS THE STATE (2015) LPELR 24835 (SC); UDE VS THE STATE (2016) LPELR – 40441 (SC). Therefore, where an accused person raises the defence of alibi he is raising a radical and complete defence that exonerates him from culpability. Accordingly, a successful plea of “alibi” is a good defence that establishes the innocence of the accused person which in effect casts aspersions on the integrity and credibility of the prosecution witnesses and creates a serious doubt in the prosecution’s case.
As a defence that seeks to establish the innocence of the accused person, it is not only desirable but good law that it must be raised timeously, at the earliest possible time to afford the Police the opportunity to investigate the claim and for the Court to place side by side the “alibi” with the evidence on record. In other words, for alibi to avail the accused, the plea must ordinarily be raised during investigation at his earliest contact with the Police giving the particulars of his whereabout at the time the crime was committed, so as to enable the Police disprove or affirm the claim. See OMOTOLA VS THE STATE (2009) 7 NWLR (PT. 1139) 148; SMART VS THE STATE (2016) LPELR (PT. 40827) (SC); HABIBU VS THE STATE (2015) LPELR 26006 (CA). Once timeously raised, no matter how unreasonable or stupid it appears to be, the Police has the duty to investigate the alibi see IKEMSON VS THE STATE (1989) 3 NWLR (PT. 110) 455; RASAKI VS THE STATE (2011) LPELR 4859; ALABI VS THE STATE (1993) 9 SCNJ (PT. 1) 109, 122.
However, an accused person who raises “alibi” for the first-time during trial makes a new assertion which he is duty bound to prove being a fact exclusively within his knowledge, and his failure to prove the “alibi” entitles the Court to treat the plea as an afterthought. This is so because at that stage, it is no longer the duty of the prosecution to investigate the alibi, but that of the accused person to prove his assertion. IBRAHIM VS. THE STATE (1991) 4 NWLR (PT. 186). Thus, failure by prosecution to investigate such a plea will have no negative effect on any conviction or on the proceedings. See ESENE VS. THE STATE (2013) LPELR – 20699. PER WAMBAI, J.C.A.

THE MEANING OF THE MAXIM DOCTRINE “OMNIQA PRAESUMUNTUR CONTRA SPOLIATOREM”

When does Section 167(d) of the Evidence Act apply?
The rule in Section 167(d) of the Evidence Act is expressed in the maxim “omnia praesumuntur contra spoliatorem”. It is to the effect that a man who wrongfully withholds evidence incurs every presumption to his disadvantage consistent with the facts admitted or proved. The presumption will be adopted against him. EWUGBA VS. STATE (2017) LPELR – 43833(SC).
The withholding of useful evidence naturally leads to the inference that the evidence if produced would go against the party who withholds it. So, where the prosecution is served with Notice to produce evidence that the defendant needs for his defence and the prosecution willfully refuses to produce the said evidence, the Courts would act on the natural inference that the evidence is held back because it would be unfavourable. See SMART VS. STATE (2016) LPELR-40827(SC).
Section 167 (d) of the Evidence Act, 2011 states that the Court may presume the existence of any fact which it deems likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that:-
(d) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
The effect of this provision is that a party who withholds useful evidence will be presumed in law to have kept away that evidence because if produced, it would go against him. A.G. ADAMAWA STATE VS. WARE (2006) 4 NWLR (PT.970) P.399. NIGERIAN AIRFORCE VS. OBIOSA (2003) 4 NWLR (PT.810) P.233.
However, the presumption will only apply where the party against whom it is sought to operate has in fact withheld the particular piece of evidence in issue and if he did not call any other evidence on the point or the issue in controversy and not merely because he fails to call a particular witness. Where the party calls some evidence on the point or issue in controversy but fails to call a particular witness, the presumption will not apply. See: BELLO VS. KASSIM (1969) NSCC 228 AT 233; OKUNZUA VS. AMOSU (1992) 6 NWLR (PT. 248) 416 AT 435. It is therefore important to note that the section deals with the failure to call evidence on the issue in controversy and not because the party fails to call a witness, as he is not bound to call a particular witness if he thinks he can prove his case otherwise. See: ALONGE VS. INSPECTOR-GENERAL OF POLICE (1959) SCNLR 516; (1959) 4 FSC 203.
It follows that mere failure to produce the evidence in issue would not necessarily amount to withholding such evidence. See: GANIYU TEWOGBADE VS. ARASI AKANDE (1968) (PT. 2) NMLR 404 AT 408. PER WAMBIA, J.C.A.

WHETHER OR NOT FAILURE OF THE POLICE TO INVESTIGATE A PLEA OF ALIBI WOULD BE FATAL TO THE PROSECUTIONS CASE

Furthermore, the failure of the police to investigate and the Court to consider a plea of alibi would be fatal to the prosecution’s case or to a conviction only where the accused person was not fixed at the scene of the crime, the law being elementary that once an accused person is properly fixed at the scene of crime, his plea of alibi is demolished and the defence must fail. A clear, credible and positive evidence of an eye witness which positively fixes an accused person at the scene of the crime dislodges and destroys any alibi put forward by the accused person; See STATE VS. AZEEZ (2008) 14 NWLR (pt 108) 435, (pt 1104) 225; VICTOR VS. STATE (2013) LPELR 20749 (SC); EBENEHI VS. STATE (2009) 6 NWLR (pt 1138) 431, at 448; STATE VS. EKANEM (2017) 4 NWLR. PER WAMBIA, J.C.A.

WHEN TO RAISE THE PLEA OF ALIBI

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): At the Jigawa State High Court in Charge No. JDU/63C/2016, the Appellant, ISAH ADAMU, was the 2nd of the seven accused persons, charged with the offences of criminal conspiracy and culpable homicide punishable with death contrary to Sections 97 and 221 (b) of the Penal Code. The others on the charge sheet were; SAMAILA GARBA (1st accused), ABDULLAH ADAMU (3rd accused), ABUBAKAR ISAH (4th accused), MUHAMMED LUKMAN (5th accused), MUHAMMAD SANI (6th accused), and ABDULLAHI RABIU (7th accused).

According to the 2 count amended charge, they were alleged to have, on or about the 13th day of June 2014, at Matakuwa village, Kafin Hausa Local Government Area of Jigawa State, agreed to beat Hauwa Inusa of the same Village and in pursuance of the agreement, they beat her with different weapons which caused her death knowing that death would be the probable consequence of their act.

The prosecution paraded 4 witnesses and tendered some exhibits. At the close of the prosecution’s case, the defence made a “No Case Submission” which was upheld in respect of the 1st, 6th and 7th accused

persons who were discharged and acquitted leaving the remaining four accused persons, the Appellant being the 4th accused person.

The case for the prosecution is that on a Friday when one Yahaya Ibrahim (PW1) returned from the Juma’a prayers, he met Isah Adamu the Appellant herein who was (2nd accused at the lower Court) and his father, Adamu, asking his mother (PW1’s mother, the deceased) to jump over the Appellant’s sick wife to break the spell of witchcraft the deceased had cast on his wife. The deceased refused saying that she was not a witch and had nothing to do with the sickness of the Appellant’s wife. Thereupon, the Appellant started hitting the deceased with cutlass threatening to kill her unless she removed the spell from his wife. The Appellant then invited his in-laws from Fadawa village who came in large numbers to join in the beating of the deceased. One Muhammed Lawan (the 5th accused) hit the deceased with a machete on her knee and broke the knee, Abdullahi Adamu (the 3rd accused) hit the deceased with a double-headed axe on the head and at that moment, she stopped shouting.

The 4th accused person then

instructed that PW1 who had been warding off the attacks on his Mum, be killed so that, the deceased would easily be killed. At that point PW1 ran away and the matter was reported to the Police who came and conveyed the deceased to the hospital where she died a few hours later, on the same Friday. The accused persons including the Appellant were later arrested and subsequently arraigned before the lower Court. The appellant who testified as PW1 was the sole witness in his defence and tendered no exhibit. Appellant testified that he was not around when the incident happened but was in the mosque. Each of the other accused persons also testified in their respective defence.

Upon a review of all the evidence and a due consideration of the Counsel final oral addresses, the learned trial judge found that the prosecution proved the two count charge beyond reasonable doubt against the Appellant (and the other 3 accused persons) and accordingly convicted and sentenced the Appellant to death by hanging.

Upset by the conviction and sentence, the Appellant through his Counsel, M. A. Lawan Esq. filed a Notice of appeal on 28/03/2018 challenging the decision on

12 grounds.

In the Appellant’s brief of argument settled by M. A. Lawan Esq. and filed on 25/07/2018 two issues were identified for determination, to wit:-
1. Whether the lower Court was correct when it found that the Respondent had adduced credible and cogent evidence to prove beyond reasonable doubt the elements of the commission of the criminal offences of Conspiracy and Culpable Homicide punishable with death by the Appellant?
2. Whether the lower Court was right in not considering the defence of “alibi” raised by the Appellant?

Hauwa Zakar, Esq. the Solicitor-General, Jigawa State who settled the Respondent’s brief of argument filed on 07/08/2018 equally submitted two issues for determination.

These are:
Whether the case against the Appellant was proved beyond reasonable doubt having regard to the circumstances of the case?
Whether a defence of Alibi was properly raised by the Appellant?
The Appellant filed a reply brief on 11/02/2019.

Having regards to the grounds of appeal read along with the evidence on record, the argument of Counsel and the judgment of the lower Court, it is my

view that two issues culled from the combination of the issues distilled by both Counsel, are apt to determine this appeal, these are:
1. Whether the defence of “alibi” was properly raised by the Appellant but not considered by the lower Court.
2. Whether from the totality of the evidence adduced before the Court, the lower Court was right when it found that the Respondent proved the ingredients of the two offences (of criminal conspiracy and culpable homicide punishable with death) beyond reasonable doubt, against the Appellant.

ISSUE NO. 1
Whether the defence of “alibi” was properly raised by the Appellant but not considered by the lower Court.

APPELLANT’S SUBMISSION
In arguing this issue, (slantingly formulated as his issue No. 2) learned Counsel stated the meaning of “alibi” and submitted that all that is required of an accused person is to bring forward the defence of “alibi” at the earliest opportunity and once that is done, the onus is on the prosecution to investigate and disprove the “alibi” the failure of which investigation, is fatal to the

prosecution’s case and entitles the accused to an acquittal. In support of this submission, he cited the cases of ATTAH VS. THE STATE (2010) 10 NWLR (PT. 120) 190; STATE VS. ANI (2009) 16 NWLR (PT. 1168) 443 among others.

Counsel referred us to the Appellant’s uncontroverted and unchallenged testimony in Court at pages 51 – 52 wherein it was contended that the Appellant raised the defence of “alibi” which the learned trial judge failed to consider despite the law that requires the Court to determine every issue raised before it. AJUWON AKANNI (1993) 5 NWLR (PT. 316) 182; SHITTA BEY VS. FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC 40. Such a failure, he submitted, amounts to a violation of the Appellant’s right to fair hearing guaranteed by the Constitution, citing a number of authorities to argue that the effect of breach of the Appellant’s fundamental right to a fair hearing by the failure to consider his defence of “alibi”, is not a mere irregularity but a fundamental vice which renders the judgment delivered on 01/02/2018 null and void liable to be set aside, relying on AKINFE VS THE STATE (1988) 3

NWLR (PT. 85) 729; OTAPO VS. SUNMONU (1987) 2 NWLR (PT. 58) 587.

Counsel wondered why the Respondent withheld evidence by not tendering in evidence the extra-judicial statement of the Appellant to show that the Appellant did not raise the defence at the earliest opportunity, the plausible reason for such withholding of the statement he argued, is because it would have been unfavorable to the Respondent if tendered, contending further that the Appellant having adduced evidence that he raised the defence upon his arrest but the prosecution failed to investigate, the defence should avail the Appellant.

He also rehearsed the fundamental principle of law that the primary responsibility of the trial Court is to critically and dispassionately appraise and evaluate the relevant evidence before the Court but the lower Court failed to do so. AMADU VS. YAN TUMAKI (2011) 9 NWLR (PT. 1251) 161 AT 185. Learned Counsel insisted that the lower Court did not properly and dispassionately evaluate the evidence urging us to do so.

Counsel referred to the case of ASHIRU MUSA VS. THE STATE (unreported) CA/K/125B/C/2015 delivered on 05/08/2016 per H. A. O. Abiru JCA

and argued further that it is better for ten guilty persons to be acquitted than to convict a single innocent person and urged that the issue be resolved in favour of the Appellant.

RESPONDENT’S SUBMISSION
In his response on this issue, learned Counsel to the Respondent submitted in support of his issue 2 “whether the defence of “alibi” was properly raised by the Appellant”, that the Appellant did not properly raise the defence of alibi at the earliest opportunity as required by law. AJAYI VS. THE STATE ALL FWLR (PT. 711) 1457, 1464 (SC); Further, that his evidence in Court that he was not around when the deceased was killed, does not amount to raising alibi but a mere denial. He referred to ADEBAYO V STATE ALL F.W.L.R (pt 743) 1994 @ 1999. It was the further contention of the Solicitor General that assuming the defence was timeously raised, it would still not avail the Appellant having been fixed at the scene of crime by PW1 and PW3 thereby demolishing the alibi, citing in support case of PATRICK NJOVENS & ORS. VS. THE STATE (1973) 5 SC.

On the Appellant’s submission that the failure of trial Court to

investigate the “alibi” amounts to breach of fair hearing which vitiates the entire proceedings, it was submitted that Counsel for the Appellant having not raised the defence of “alibi” at all or properly, the question of denial of fair hearing does not arise as the Court is precluded from making any speculation.

In urging us to resolve the issue in favour of the Respondent and to hold that the trial judge properly evaluated the evidence before coming to a conclusion that the Appellant was guilty of the offences, She submitted that the lower Court did not even rely on the confessional statement of the Appellant to arrive at its conclusion because of the unavailability of PW4 for cross-examination.

RESOLUTION OF ISSUE 1
The issue here is whether as canvassed for the Appellant, the Appellant raised the defence of “alibi” at the earliest opportunity which the lower Court failed to consider, or as contended by the Respondent’s Counsel, the defence was not raised at all or if so raised, was improperly raised.
“Alibi”, a Latin word literally means “elsewhere” that the accused was

elsewhere other than the scene of crime at the material time of the commission of the crime. “Alibi”, is a defence founded on the physical impossibility of the accused person being at two different places at the same time not being capable of having the quality of omnipresence. The defence places the accused at a location other than the scene of crime at the relevant time. See EZE VS THE STATE (1976) SC 176; IDEMUDIA VS THE STATE (2015) LPELR 24835 (SC); UDE VS THE STATE (2016) LPELR – 40441 (SC). Therefore, where an accused person raises the defence of alibi he is raising a radical and complete defence that exonerates him from culpability. Accordingly, a successful plea of “alibi” is a good defence that establishes the innocence of the accused person which in effect casts aspersions on the integrity and credibility of the prosecution witnesses and creates a serious doubt in the prosecution’s case.
As a defence that seeks to establish the innocence of the accused person, it is not only desirable but good law that it must be raised timeously, at the earliest possible time to afford the Police the opportunity to

investigate the claim and for the Court to place side by side the “alibi” with the evidence on record. In other words, for alibi to avail the accused, the plea must ordinarily be raised during investigation at his earliest contact with the Police giving the particulars of his whereabout at the time the crime was committed, so as to enable the Police disprove or affirm the claim. See OMOTOLA VS THE STATE (2009) 7 NWLR (PT. 1139) 148; SMART VS THE STATE (2016) LPELR (PT. 40827) (SC); HABIBU VS THE STATE (2015) LPELR 26006 (CA). Once timeously raised, no matter how unreasonable or stupid it appears to be, the Police has the duty to investigate the alibi see IKEMSON VS THE STATE (1989) 3 NWLR (PT. 110) 455; RASAKI VS THE STATE (2011) LPELR 4859; ALABI VS THE STATE (1993) 9 SCNJ (PT. 1) 109, 122.
However, an accused person who raises “alibi” for the first-time during trial makes a new assertion which he is duty bound to prove being a fact exclusively within his knowledge, and his failure to prove the “alibi” entitles the Court to treat the plea as an afterthought. This is so because at that stage, it is no longer the duty of

the prosecution to investigate the alibi, but that of the accused person to prove his assertion. IBRAHIM VS. THE STATE (1991) 4 NWLR (PT. 186). Thus, failure by prosecution to investigate such a plea will have no negative effect on any conviction or on the proceedings. See ESENE VS. THE STATE (2013) LPELR – 20699.

In the instant case, a peep into the records of the Court is necessary to determine whether and when the Appellant raised the defence of “alibi”.

Learned Counsel to the Appellant referred us to pages 51 – 52 of the record whereat he contended that the Appellant raised the defence of “alibi” in his evidence as DW1 in addition to raising it at the earliest opportunity in his extra judicial statement to the police but the Respondent withheld the evidence from the Court. He contended that if the statement had been tendered, it would have been unfavorable to the Respondent and would have shown that the defence was raised at the earliest opportunity. Counsel called for the invocation of Section 167 (d) of the Evidence Act.
It is on record that the Appellant’s extra judicial statement was

tendered through PW4, Inspector ABDUL ABDULHAMID, on 20/02/2017 but the defence Counsel, GARBA Esq, took objection to the admissibility of the statement on ground that the Appellant was beaten and tortured to make the statement. Consequently, the learned trial judge ordered for a “Trial within Trial” but permitted PW4 to first complete his examination in chief before the conduct of the “Trial within Trial”. After a few adjournments at his instance, PW4 failed to or could not turn up for the scheduled trial within trial and cross examination, the prosecution closed its case and the statement though tendered could not be admitted in evidence.
Thus, the question is whether the failure of P.W 4 to attend Court for the trial within trial and cross examination which rendered the confessional statement of the Appellant inadmissible and the evidence of PW4 worthless, amounts to withholding of evidence. In other words, whether the presumption in Section 167 (d) of the Evidence Act applies here.
When does Section 167(d) of the Evidence Act apply?
The rule in Section 167(d) of the Evidence Act is expressed in the maxim “omnia

praesumuntur contra spoliatorem”. It is to the effect that a man who wrongfully withholds evidence incurs every presumption to his disadvantage consistent with the facts admitted or proved. The presumption will be adopted against him. EWUGBA VS. STATE (2017) LPELR – 43833(SC).
The withholding of useful evidence naturally leads to the inference that the evidence if produced would go against the party who withholds it. So, where the prosecution is served with Notice to produce evidence that the defendant needs for his defence and the prosecution willfully refuses to produce the said evidence, the Courts would act on the natural inference that the evidence is held back because it would be unfavourable. See SMART VS. STATE (2016) LPELR-40827(SC).
Section 167 (d) of the Evidence Act, 2011 states that the Court may presume the existence of any fact which it deems likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that:-
(d) evidence which could be and is not produced

would, if produced, be unfavourable to the person who withholds it.
The effect of this provision is that a party who withholds useful evidence will be presumed in law to have kept away that evidence because if produced, it would go against him. A.G. ADAMAWA STATE VS. WARE (2006) 4 NWLR (PT.970) P.399. NIGERIAN AIRFORCE VS. OBIOSA (2003) 4 NWLR (PT.810) P.233.
However, the presumption will only apply where the party against whom it is sought to operate has in fact withheld the particular piece of evidence in issue and if he did not call any other evidence on the point or the issue in controversy and not merely because he fails to call a particular witness. Where the party calls some evidence on the point or issue in controversy but fails to call a particular witness, the presumption will not apply. See: BELLO VS. KASSIM (1969) NSCC 228 AT 233; OKUNZUA VS. AMOSU (1992) 6 NWLR (PT. 248) 416 AT 435. It is therefore important to note that the section deals with the failure to call evidence on the issue in controversy and not because the party fails to call a witness, as he is not bound to call a particular witness if he thinks he can prove his case

otherwise. See: ALONGE VS. INSPECTOR-GENERAL OF POLICE (1959) SCNLR 516; (1959) 4 FSC 203.
It follows that mere failure to produce the evidence in issue would not necessarily amount to withholding such evidence. See: GANIYU TEWOGBADE VS. ARASI AKANDE (1968) (PT. 2) NMLR 404 AT 408.
In sum and in capsulation, what is important to note is that Section 167 (d) deals with withholding of evidence and not failure to call any particular witness or tender any particular document in evidence. The section is about failure or refusal to produce material oral or documentary evidence in the possession of a party which could be but is not produced. It is not about failure to call any particular witness to testify. See BELLO VS. KASSIM (supra). The rule applies where a party fails to adduce evidence on pleaded facts by withholding evidence in his possession which could have been but was not produced. See YUSUF VS. STATE (2018) LPELR 46718 (CA), ONWUJUBA VS. OBIENU (1991) 4 NWLR (pt 183) 16 SC, OLUSANYA VS. OSINLEYE (2013) 12 NWLR (pt 1367) 148, SHODIYA VS. THE STATE (2013) 14 NWLR (pt 1373) 147.
Hence, the provision cannot be invoked whereas in the case at

hand, the party in possession of the evidence produces the evidence but the adversary objects to its admissibility in evidence and then turns around to allege that the same evidence he objected to, is being withheld. The effect of the failure of PW4 or any prosecution witness to appear in Court to adduce evidence for the trial within trial is that the prosecution failed to prove the voluntariness of the Appellant’s confessional statement which it sought to tender. This amounts to failure to prove the evidence sought to be relied upon with the dare consequence of the exclusion of the evidence from the scale of evidence for consideration by the Court. It does not amount to withholding of evidence. This is why the learned trial judge held at page 119 of the record that;
The Court cannot, and did not venture into the extra-judicial statements made by the 2nd and 4th accused persons due to the absence of the investigating Police Officer (PW4 – Inspector Abdul Abdulhamid), who refused to appear for the scheduled trial-within-trial and cross-examination by the defence.
Since the Court was legally denied access to the statements made by the 2nd,

3rd, and 4th accused persons (through the actions or inactions of the prosecution) it cannot delve into the issue of whether such statements embody any possible legal defences for the benefit of the makers.
In sum, the Appellant having challenged the voluntariness of the confessional statement which the prosecution failed to prove thereby rendering the statement inadmissible, the lower Court could not speculate to know whether the defence of alibi was therein raised.

The appellant however, raised alibi during trial in his evidence in Court when he stated that “I was not around when Hauwau was killed, I was in the mosque at that time. It was on a Friday when the incident happed and I attended a mosque on that day’’.
Therefore, the only alibi which the Court could consider is that raised at trial, and raising the defence during trial as the Appellant did, shifted the burden of proof unto the Appellant to prove his assertion.
Learned Counsel for the Appellant contends that the failure of the Court to consider this alibi amounts to denial of fair hearing and occasioned a miscarriage of justice.

The law is trite as earlier stated that the right time to raise the defence is at the earliest opportunity when the accused is confronted by the Police with the commission of the offence so as to afford the Police the opportunity to investigate same, and when so raised, the burden is on the prosecution to disprove it in order to prove its case beyond reasonable doubt. ATTAH & ANR. VS. THE STATE (2010) NWLR 352, 406. Where as in the case at hand, an accused person raises “alibi” for the first-time during trial, he makes a new assertion which he is duty bound to prove, being a fact exclusively within his knowledge, and his failure to prove the “alibi” entitles the Court to treat the plea as an afterthought. This is so because at the stage of trial, it is no longer the duty of the prosecution to investigate the alibi, but that of the accused person to prove his assertion.

person is properly fixed at the scene of crime, his plea of alibi is demolished and the defence must fail. A clear, credible and positive evidence of an eye witness which positively fixes an accused person at the scene of the crime dislodges and destroys any alibi put forward by the accused person; See STATE VS. AZEEZ (2008) 14 NWLR (pt 108) 435, (pt 1104) 225; VICTOR VS. STATE (2013) LPELR 20749 (SC); EBENEHI VS. STATE (2009) 6 NWLR (pt 1138) 431, at 448; STATE VS. EKANEM (2017) 4 NWLR.
Thus, failure by prosecution to investigate such a plea has no negative effect on the prosecution’s case or on the outcome of the proceedings. Therefore, all the strenuous argument by the Appellant’s Counsel on the trial Court not considering the defence of “alibi” is only but a storm in a tea cup. It is an unnecessary and needless argument which lacks any basis. As submitted by the Respondent’s Counsel, it is only a waste of the precious judicial time. It is hereby discountenanced. The result is that this issue is resolved against the Appellant.

ISSUE NO. 2
Whether from the totality of the evidence adduced before the Court, the

lower Court was right when it found that the Respondent proved the ingredients of the two offences (of criminal conspiracy and culpable homicide punishable with death) beyond reasonable doubt, against the Appellant.

APPELLANT’S SUBMISSION
In arguing this issue, Counsel re-stated the elementary law that the prosecution bears the duty of proving beyond reasonable doubt the mens rea, and the actus reus of the accused and the ingredients of each offence. GARBA VS. THE STATE (2011) ALL FWLR (PT. 584) 148, and rehearsed the ways by which the guilt of an accused person can be proved, viz: by (a) Confessional Statement of the accused; (b) Circumstantial evidence; and (c) Evidence of an eye witness. OKANLAWON VS. THE STATE (2015) 17 NWLR (PT. 1489) 445 AT 429 and that the prosecution herein opted for proof by eye witness evidence of PW1, PW2 and PW3 and Exhibit F, the Medical report.

For the offence of culpable homicide punishable with death, which ingredients he listed, Counsel conceded the 1st ingredient, that a human being died, but vigorously denied and challenged the admissibility of Exhibit F or that it proved the cause of death.

Counsel’s contention that the Medical report being a public document issued by Government owned and managed General Hospital, only its certified true copy and no other copy is admissible in evidence, which must comply with the conditions of certification. SALAMI VS. AJADI (2008) 25 WRN 144; ORLU VS. CHIEF (DR) MPAKABORI GOGO – ABITE (2010) 1 SC (PT. 11) 56; DAGGASH VS. BULAMA (2004) FWLR (PT. 212) 106; TABIK INVESTMENT LTD. VS. G.T.B. (2011) ALL FWLR (PT. 602) 1592.

In further argument, he submitted that assuming the original copy is admissible in evidence, Exhibit F remains inadmissible since it was tendered from the bar and not through its maker who is the person in position to answer questions on it thereby rendering it documentary hearsay evidence. He cited the case of FLASH FIXED ODDS LTD. VS. AKATUGBA (2010) FWLR (PT. 76) 709.

Counsel argued further that Exhibit F being an expert report, it must be tendered by the expert as decided in the case of J.V. Nig. Ltd & Anr. vs. Unity Bank Plc (unreported) CA/K/100/2015 delivered 20/05/2016 page 1 at 22 and Ashiru Musa vs. The State (unreported) CA/K/125B/C/2015 delivered 05/08/2016<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Moreover, he argued, no proper foundation was laid why it was not tendered by the maker and tied to the oral evidence of any of the prosecution witnesses but rather dumped on the Court ANPP VS. INEC (2010) 13 NWLR (PT. 1212) 456 insisting that the law does not allow the Court to do cloistered justice and lose its impartiality by tying the Exhibit F to the evidence of the witness. The contents of Exhibit F itself, he further submitted, casts doubt on the cause of death since it states that there were other injuries apart from the one on the head and leaves room for medical negligence. We were urged to hold that Exhibit F is inadmissible and has no probative value.

On the evidence of PW1, PW2 and PW3 relied upon by the lower Court as proving the two offences beyond reasonable doubt, Counsel submitted that their evidence all put together is hearsay; that while PW1 said he was out of the house at the time of the attack and that only children were in the house, the source of information of the evidence of PW2 is his 2nd wife; and PW3 did not witness the incident, as he left Matakuwa Village to call for help at Kafin Hausa Police Division and when he returned

the deceased had already been injured by the mob. Thus, they did not adduce credible evidence to prove the mens rea of the Appellant or to prove the case beyond reasonable doubt against the Appellant. That on the other hand, the story of the Appellant that he was at home when he was invited by the Village Head and from there taken to the Police Station where he told the Police he knew nothing of the offence, was confirmed by the co-accused persons and buttressed by the evidence of DW5 the Ward Head, that the Bulama gathered all the youths in the village, (the Appellant inclusive) in respect of the incident.

He further submitted that the prosecution failed to tender the weapon used to determine therefrom its size and weight to prove the mens rea of the Appellant.

On criminal conspiracy, it was Counsel’s submission that the Appellant said he did not know the other accused persons and did not agree with anyone to commit any offence. That the prosecution failed to prove how and when the meeting of the minds of the accused persons took place, or if the Appellant and the others independently pursued their act, citing the case of USUFU VS. THE STATE

(2007) 3 NWLR (PT. 1020) 94.

RESPONDENT’S SUBMISSION
On her part, the Hon. Solicitor-General submitted that a trial Court being the Court that has the preeminence of ascribing probative value to evidence, an appellate Court cannot disturb the findings of the lower Court unless such findings are perverse. BFI GROUP CORP. VS. B.P.E. (2012) ALL FWLR (PT. 676) 444, AT 456 – 457; TAJUDEEN ILIYASU VS. THE STATE SC.241/2013 contending that the lower Court was right in finding that the prosecution proved the ingredients of the offence beyond reasonable doubt against the Appellant.

Counsel re-stated the ingredients of culpable homicide punishable with death and submitted that the 1st ingredient that a human died, (Hauwa’u Yunusa) was established by the evidence of PWs 1, and 3 and Exhibit F.

On the 2nd ingredient, that the Appellant caused the death of the deceased, it was submitted that the credible evidence of PW1, PW2 and PW3 who personally witnessed the beating of the deceased by the accused persons, and stated the different roles played by each of the accused persons; the hitting of the deceased with a matchet on the knee, and

on the head by a double headed axe; how the deceased was taken to the hospital but died, according to Counsel, prove that the Appellant and the other co-accused persons caused the death of the deceased.

On the 3rd ingredient that the Appellant and the other co-accused intended to cause the death of the deceased or knew that death or grievous bodily hurt was the probable consequence of their act, Counsel still referred to the detailed evidence of PW1, PW2 and PW3 and how upon invitation of the 2nd accused, the other accused persons came from Fadawa village armed and joined in the beating of the deceased with different types of weapons and submitted that the accused intended to cause the death of the deceased or knew that death was the probable consequence of their action.

On the Appellant’s contention that the evidence of PWs 1, 2, and 3 are hearsay evidence and unreliable, the learned Solicitor-General conceded the evidence of PW2 being hearsay and inadmissible thus the inconsistency between his evidence and that of PW1 on the time he, PW2, saw the deceased being beaten does not affect the probative value of that of PW1.

Similarly, the inconsistency in respect of the time of death of the deceased as narrated by PW1 to have occurred on Friday night and that of PW3 who said it was Saturday morning is immaterial to the fact that the deceased died.

However, on the evidence of PW1 and PW3, Counsel analysed and maintained that their evidence which is rock solid, is direct, cogent, uncontroverted and unchallenged and thus deemed admitted. Premised on this, she called for the invocation of the settled law that a fact admitted requires no further proof citing in support the cases of WUYAH VS. JAMA’A LOCAL GOVERNMENT KAFANCHAN (2013) ALL FWLR (PT. 659) 1171; CBN VS. IGWILLO (2007) 14 NWLR (PT. 1054) 393.

On the contention that the Medical report (Exhibit F), a public document must be certified to be admissible in evidence, Respondent’s council submitted that Exhibit F at page 83 of the record was so certified having being paid for, endorsed and dated. He referred to Section 106 (a) (İİ) of the Evidence Act, 2011 and the case of TABIK INVESTMENT LTD VS. G.T.B PLC (2011) ALL F.W.L.R (pt 602) 1592.

On the Appellant’s submission that Exhibit F even if original can only be

tendered through its maker and not from the bar, Respondent’s Counsel contends that Section 250 (2) of the Criminal Procedure Code (C.P.C) gives the Court the discretion to allow the tendering of it from the bar and to summon the maker only when it deems necessary and that defence did not object to its tendering from the bar. Reference was also made to Section 83 (1) (b) & (2) of the Evidence Act 2011.

It was also submitted that contrary to Appellant’s argument that Exhibit F was dumped on the Court, the mere fact that it was tendered from the bar without objection makes it an exceptional situation which the Court was entitled to admit.

In response to the argument that Exhibit F did not establish the ingredients of the cause of death, learned Counsel for the Respondent pointed out that it is not the duty of the medical report to establish the ingredients of murder or that the Appellant was responsible; its primary function is only to indicate the cause of death and not to give details of the injuries. Moreover, Counsel continued, even if Exhibit F were to be ascribed little probative value, the evidence of PW1 & PW3 tied

Appellant to the beating of the deceased and her eventual death.

On the proof of the ingredients of criminal conspiracy, Counsel argued that in the absence of a confession, an agreement to commit an offence can be inferred from the circumstances in which the main offence was committed, and that evidence of Pw1 & Pw3 establish the element of agreement, Reference was made to the evidence of Pw3 that Appellant went to call their in-laws who came around armed with weapons and joined in the commission of the crime. WOLE AKINDIPE VS. STATE (ALL F.W.L.R (pt 860) 1047.

It was further submitted that mere agreement to commit an offence constitutes conspiracy, citing in support the cases of OKOH VS. STATE ALL F.W.L.R (pt. 736) 443 AT 448 (SC), CLARK VS. STATE (1986) (pt 35) 381.

We were urged to resolve the issue against the Appellant and hold that the Respondent proved its case beyond reasonable doubt against the Appellant as charged, through the evidence of PW1 and Exhibit F, and to dismiss the appeal and affirm the judgment of the lower Court.

To react to the Respondent’s argument, the Appellant filed a reply booklet called a reply

brief. It is apt to remind Counsel that a reply brief is necessary only when the Respondent’s brief introduces or raises new issues or points of law not covered in the Appellant’s brief of argument. SHUAIBU VS. MAIHODU (1993) 3 NWLR (PT. 284); SPDC & ORS. VS. AGBARA & ORS. (2016) 2 NWLR (PT. 1496) 358.
A reply brief is necessary and is usually filed to answer to new points or issue of law or argument raised in the Respondent’s brief that calls for reply. A reply brief is not for the purpose of affording the Appellant another bite at the cherry; another opportunity to re-argue, repeat or extend the scope of his argument in the brief of argument. That is not the function of a reply brief.
A reply brief is unnecessary if the purport is merely to adumbrate on the argument already canvassed in the Appellant’s brief and it is totally prohibited to smuggle in fresh or new issues or points omitted in the Appellant’s brief of argument not arising from the Respondent’s brief of argument.
I must emphasize that even where a reply brief is desirable, it should be limited only to answer the new points arising from

the Respondent’s brief. It should not be used either to extend, or enlarge the scope of arguments in the Appellant’s brief or raise issues that did not arise in the Respondent’s brief. See A.B.C. TRANSPORT CO. LTD. VS. OMOTOYE (2019) LPELR- 47829 (SC); GODSGIFT VS. THE STATE (2016) 13 NWLR (PT. 1530) 444.
I find here that save for a few points deserving a reply, the Appellant’s reply brief is largely a reaction to every argument in the Respondent’s brief, an amplification of this argument in the main brief and a repetition of the Appellant’s case. That is improper. I shall therefore refer only to and consider arguments that arose from the Respondent’s brief of argument desirous of a reply.

At paragraph 2.08 of his reply brief the Appellant argued that the Certification on Exhibit F by the Registrar of the High Court is not the certification envisaged by law as the Registrar is not the custodian and the issuing authority of the document. He referred to the case of GOODWILL & TRUST INV. LTD. VS. WITT & BUSH LTD. (2011) ALL FWLR (PT. 576) 517 SC.

On the admissibility of the Medical report, Exhibit

F, from the bar via Section 250 (1) and (2) of C.P.C. as argued by the Respondent’s Counsel, the Appellant’s Counsel submitted that in so far as the issue at stake is as to the actual cause of death and the person who caused the death, the presence of the maker via Section 250 (2) CPC was not only desirable but necessary.

RESOLUTION OF ISSUE NO. 2
The offences for which the appellant was convicted are those of culpable homicide punishable with death and criminal conspiracy. For the offence of culpable homicide punishable with death to be established, the prosecution must conjunctively prove beyond reasonable doubt three indispensable ingredients. 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. Failure to prove any of these ingredients means failure to prove the charge. See GALADIMA VS THE STATE (2017) LPELR 41909 (SC).

On the first ingredient that a human being died, this fact is conceded by the defence. Moreover, the evidence of PW1, the biological son of the deceased, and that of PW3 and Exhibit F establish the fact that the deceased, Hauwa Yunusa, (Inusa) died.

The 2nd ingredient is that the death of the deceased was caused by the act of the Appellant. The prosecution must prove that it was the wrongful act of the accused that caused the death of the deceased. The 1st duty of the prosecution in this respect is to prove beyond reasonable doubt what caused the death and when this 1st hurdle is successfully crossed, to cross over to the 2nd hurdle, to link that cause of death to the act of the accused. UBIERHO VS. THE STATE (2005) 5 NWLR (PT. 919) 644. The prosecution must establish beyond reasonable doubt not only that the act of the accused person could have caused the death, but that it indeed caused the death of the deceased. EBONG VS. THE STATE (2011) LPELR- 3789 (CA).

Where the prosecution fails to prove the cause of the death (what caused the death of the deceased), the enquiry must be terminated and it will not be necessary to proceed further. See ADELEYE VS. THE STATE (2014) LPELR – 23063 (CA) wherein the case of OFORLETE VS. THE STATE (2000) 12 NWLR (PT. 631) 415 was referred to.

In determining this 2nd ingredient, the learned trial judge relied on the Medical report, Exhibit F and the evidence of PW1, PW2 and PW3.

Beginning with the Medical report, (Exhibit F) the Appellant’s Counsel has vehemently attacked its legal admissibility in evidence and the probative value as ascribed to it by the lower Court. His reasons are: that being a public document, only a certified true copy of it is admissible; (ii) that it ought to have been tendered through its maker and not from the bar; (iii) that it was dumped on the Court.

Now, the question whether a primary evidence of a public document is admissible without certification has been settled. It is a misconception of the law to argue that an original copy of a public document must be certified before it becomes admissible in evidence. The correct and settled

position of law is that an original copy of a public document requires no certification to be admissible in evidence. See ITEOGU VS. LPDC (2009) 17 NWLR (PT. 1171) 684; PDP VS. INEC (2014) 17 NWLR (PT. 1437) 525; ANATOGU VS. IWEKA II (1995) 8 NWLR (PT. 415) 547; ANAGBADO VS. FARUK (2018) LPELR – 44909 (SC).
In EBU VS. OBUN (2004) 14 NWLR (PT. 892) 76 AT 88 where a similar argument was canvassed, Opene JCA (as he then was) queried the rationale of certifying an original copy of a public document saying:
“When a document is certified, it is certified to be a true copy of the original. If then the original is to be certified, what will be certified to be a true copy of itself (original)”?
Similarly, in the recent case of KASSIM VS. THE STATE (2018) 4 NWLR (PT. 1608) 20, also reported as (2017) LPELR- 42586 (SC), the Supreme Court per Ejembi Eko JSC held that in view of Sections 83, 85 of the Evidence Act, it is not illegal for contents of a public document to be proved by the production of the original copy of the document in its primary state for the inspection of the Court.
It is thus not the correct position of law that an

original copy of a public document is not admissible in evidence or requires certification to be admissible.

On the 2nd leg of the argument that the Medical report must be tendered by its maker and not from the bar, it is now judicially settled with statutory backing that the attendance of a medical officer who issued a Medical report is not a requirement for its admissibility. In other words, such a report may be tendered in evidence other than by the maker. See FULANI VS. THE STATE (2018) LPELR- 45195(SC).
This is what Section 55 of the Evidence Act envisages and provides for. Either of the parties in a criminal trial may produce a certificate signed by a Government Pathologist or any of the specified Medical Officers or experts therein listed, and the production of any such certificate may be taken as sufficient evidence of the facts therein stated, provided that the Court may upon application of any of the parties or of its own motion direct that the pathologist or such officer may be called for the purpose of cross examination. Exhibit F is one such certificate as there is no dispute that it was issued by one Dr. Akeem I, of the Government

owned and managed General Hospital, Kafin Hausa Gunduma General Hospital in Jigawa State of Nigeria.
Furthermore, Section 249 (3) (a) (b), and (c) supports the admissibility of an original copy of a Medical report issued by a Medical Officer in proof of the nature of any injury sustained or the cause of death and such report shall be read in open Court.
By Section 249 (3)(a), a written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of the death of any person who has been examined by him and by paragraph (b), upon admission of the report, the accused shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court; (c) If by reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medial officer or registered medical practitioner shall attend and give evidence in person, the Court shall summon such medical practitioner to appear as a witness.
The general interpretation of this provision

is that personal attendance in Court, of a Medical Practitioner or Officer who issued a Medical report is not mandatory but discretionary, and a medical report is admissible even if it is not tendered through the maker. SeeFULANI VS. STATE (2018) (Supra). His personal attendance may be required only where there is a disagreement with the contents of the report and it appears expedient to the Court that the interest or ends of judice would be better served by summoning the Medical Practitioner/Officer to appear in person to give evidence.
Although Section 249(3) (b) provides that the written Medical report shall be read to the accused after its admission in evidence and he shall be asked whether he disagrees with any statement therein, where the accused person is represented by a Counsel, the Court needs not ask the accused person if he agrees with any statement in the Medical report. See FULANI VS. STATE (SUPRA), see also SPDC V. IKONTIA & ORS (2010) LPELR-4910(CA).
It is on record, in the case at hand, that when the Medical report was tendered from the bar, the defence Counsel took no objection to its admissibility in evidence. Usman Esq. who

represented the Appellant at the lower Court when asked if he had any objection to the admission of the Medical report stated thus:
“We are not objecting to the admission in evidence of the Medical report in respect of the deceased”.
(See page 39 of the record).
Additionally, it is not shown on record that the defence Counsel requested for the personal attendance of the Medical Officer but was refused the application. In the circumstance, the trial judge was right in admitting Exhibit F via Section 55 of the Evidence Act and Section 249 (3) (a) of the Criminal Procedure Code.
The case of J.V. NIG LTD & ANOR V UNITY BANK PLC (supra) referred to by learned Counsel for the Appellant to argue that Exhibit F was an expert report which must be tendered by the expert, is in a different kettle of fish. The document tendered therein, (Exhibit D1), was an analysis by a banking expert purporting to show that the entries in a statement of account reflecting the debit balance in the account was wrong. It is now settled law that to prove a debit balance in a statement of account, the Bank or the party claiming the sum must adduce both

documentary and oral evidence demonstrating how the balance was arrived at. The tendering of the statement of account is not enough. Oral evidence explaining the entries and how or why the entries are or should be what he asserts them to be, must be demonstrated by oral evidence of the officer acquainted with the account, See BILANTE INTERNATIONAL LTD VS. NDIC (2011) 6 SCNJ 481, IFEMESIA VS. ECOBANK (2018) LPELR – 46589 (CA), HADYER TRADING MANUFACTURING LTD VS. TROPICAL COMMERCIAL BANK (2013) LPELR 20294 (CA).
This legal requirement is not the same with respect to the tendering of a medical report vide Section 55 of the Evidence Act or Section 249 (3) of the C.P.C.

Besides, it is not the law that a Medical report is always indispensable in proving the cause of death. In cases where a man was attacked with lethal weapon, and he died on the spot, or shortly thereafter, the cause of death can properly be inferred. Put in another form, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide case. It could properly be inferred that the wound inflicted caused the death of the deceased. See

BEN VS. THE STATE (2005) 11 NWLR (PT. 936) 335.
In other words, a Medical report is not a sine qua non for the purpose of establishing the injury or the cause of death where credible evidence abounds on record showing the nature of the injury, its severity, the manner it was inflicted, and the part of the body so inflicted or the cause of death. A medical report becomes unnecessary in such circumstances and the trial Court can infer the cause of death or the severity of the injury as the case may be, with or without the medical report. In HARUNA VS. AGF(2012) 9 N.W.L.R (pt 306) 419 following the decision in ONYIA VS. THE STATE (Supra) the Court held that where there is clear and sufficient evidence that the death of the deceased was the direct result of the unlawful act of the accused person to the exclusion of all other reasonable possible cause, the lower Court can infer the cause of death with or without a medical report.
In the case at hand the medical report which the trial judge relied upon, was properly admitted in evidence and its contents are consistent with the evidence of P.W1 that the deceased was stabbed with matchet on her knee, on the head

and beaten up. It states that the deceased was admitted as a case of severe head injury other than other injuries, on 13/06/2014 and confirmed dead some hours after admission and initial management.

Additionally the learned trial judge also relied on the eye witness of PW1, and PW3 and upon analyzing the evidence, made the following finding:
“All the above credible and unchallenged evidence by PW1 established that the 2nd accused (Isah Adamu), the 3rd accused (Abdullahi Adamu) and the 4th accused (Abubakar Isah) have jointly and actively participated in the attacks on the deceased (Hauwa) which eventually let to her death”.

PW1 and PW3 were eye witnesses to the incident and by law competent to give evidence on what they saw or observed as it happened. As persons who witnessed the event, one of whom is also a victim of the offence, they are described as eye witnesses who can best describe from personal observation, what they saw or happened to them. See UDE VS. THE STATE (2016) 14 NWLR (PT. 1531) 122 AT 158.
Although the evidence of an eye witness is not indispensable in proving a crime, where it is available, in the absence of a

confession, it is the best and reliable evidence in proof of a crime. Indeed, probative value of an eye witness account cannot be over-emphasized in criminal trial, and it is as described by the apex Court inOYAKHERE VS. THE STATE (2006) ALL FWLR (PT. 305) 703 AT 720, as the best evidence in criminal trial
This is why the evidence of a truthful eye witness on what he saw or happened to him is always reliable and can hardly be dislodged, provided that it is examined by the trial Court. UDO VS. THE STATE (2016) 12 NWLR (PT. 1525). Herein lies the import of the Appellant’s contention.

The graphic eye witness account of PW1 on record is that he returned from the Friday Juma’a prayers and met the Appellant and his father (one Adamu) requesting the deceased to jump over the Appellant’s wife to break the spell of witchcraft allegedly cast by the deceased on the wife of the accused and upon the refusal of the deceased to do so, the Appellant started beating the deceased and sent for his in-laws at Fadawa village who arrived with different weapons and attacked the deceased.

The 5th accused cut the deceased with a matchet on her knee and

broke the knee, the 3rd accused hit the deceased with a double headed axe on the head, the 4th accused said PW1 who had been warding off the attacks on the deceased, should be killed. It was at that point that PW1 ran away.

PW3 also witnessed the accused persons beating the deceased. He and some other persons tried to stop the beating but were over powered by the attackers and he went to the Kafin Hausa Police Station to report. He was not cross-examined at all and his evidence was not challenged or controverted by the defence Counsel. The Appellant was deemed to have admitted the truth of the evidence and the lower Court rightly accepted and relied on it. See OFORLETE VS. THE STATE (2000) 12 NWLR (PT. 681) 415. The vivid evidence of P.W1 and P.W3 which positively fixed the Appellant at the scene of crime as the prime participant in the commission of the crime, effectively dislodged and demolished the alibi raised by the Appellant during trial, and rendered same as an afterthought.

The learned trial judge properly evaluated their evidence, and at the end of the evaluation, believed their evidence and held thus:

“A glimpse at the evidence of PW1 (Yahaya Ahmed) has shown and confirmed that PW1 has personally witnessed the attacks on the deceased (Hauwa) by the relations invited by the Appellant herein from Fadawa village, and was specific on the roles played by some of the accused persons.
PW1 equally recognized the 4th accused (Abubakar Isah) among the attackers, and it was the 4th accused who advised that PW1 should be killed so that the attackers could be able to have free access and kill the deceased”.

It is however, the contention of the Appellant’s Counsel that these pieces of evidence of PW1, PW2 and PW3 are manifestly unreliable and a highbred of hearsay which did not prove the case beyond reasonable doubt against the Appellant.

Evidence is said to be hearsay when its source, origin or author is from a person other than the witness saying it or repeating it in the Court and the purpose of such narration or tendering is to prove that the facts asserted to in the earlier statement are true. It is trite that hearsay evidence is inadmissible in evidence if the purpose of it is to impress on the Court to believe the truth of the evidence. This is more so in criminal

trials. Hearsay evidence is inadmissible to prove that an accused person had committed an offence. Evidence of a witness who said he heard or read that someone else had said that the accused person had committed the offence amounts to hearsay and any conviction based upon hearsay evidence cannot stand. This is the fundamental principle of law at common law expressed by the Privy Council in the case of SUBRAMANIAM VS. PUBLIC PROSECUTOR (1956) 1 WLR 956, which remains the law and applicable in our Courts. See OLAYINKA AYENI VS. THE PEOPLE OF LAGOS (2016) LPELR – 41440 (CA).

It is for this reason that the lower Court declined to rely on the evidence of PW2 whose source of information was his 2nd wife.

However, that cannot be said of the evidence of PW1 and PW3 who personally witnessed the commission of the crime particularly PW1 who was also a victim of the crime. Their evidence as analysed supra cannot amount to hearsay. The fact that PW1 said in cross-examination that he was not around when the accused persons “started” beating his mum (the deceased) does not make his evidence hearsay because his evidence in chief is that he returned

from the mosque to “meet” the accused persons beating the deceased, meaning that the beating had “started” before his return to the house. There is neither an ambiguity nor a contradiction in his evidence that he witnessed, upon his return from the mosque, the beating of his mum by the accused persons.

Similarly, the Appellant’s submission that PW3 did not witness the incident because he said that when he returned to the scene the deceased had been injured, is without substance. This is so because the beating of the deceased which he tried to stop but were overpowered by the accused persons started in his presence before going to report to the Police.

One piece of evidence is said to be contradictory to another when it asserts or affirms the opposite of what the other asserts. The two pieces of evidence must be mutually opposed to each other or fundamentally inconsistent that it is impossible for both to be true or for both to be false. The contradiction must go to the essentiality of something being or not being at the same time. NNADIKE & ANOR. VS. NWACHUKWU (2019) LPELR – 48131 (SC);DAGAYYA VS. THE STATE

(2006) LPELR 912 (SC).
A contradiction is fatal to the prosecution’s case if it is material and touches on the important element of the offence such that itseriously affects the credibility or veracity of the evidence and casts serious doubts on the case of the prosecution- AWOPEJO & ORS. VS. THE STATE (2001) LPELR – 656 (SC);FALEYE VS. THE STATE (2012) LPELR- 20429 (CA); OLATINWO VS. THE STATE (2013) NWLR (PT. 1355) 126.

I find no contradiction between the evidence of the prosecution witnesses and assuming there are minor discrepancies, they do not affect or touch on the essential elements of the offence, to cast doubt on the prosecutions’ case to enable Appellant benefit from the doubt.

In the midst of the evidence on record and duly evaluated by the lower Court the above finding of the lower Court at page 111 of the record earlier referred to, is impeccable.

On the non production of weapon, there is no laid down law that mandates or requires the tendering of the weapon allegedly used in the commission of a crime in order to establish the guilt of an accused person nor would a conviction be set aside merely on that

ground. In OLAYINKA VS. THE STATE (2007) 9 NWLR (pt 1040) 561 @ 575 PARA D-F Per Tabai JSC, thus:-
“I do not think there is any principle of law requiring the tendering of the weapon of an alleged robbery to establish the guilt of an accused person. See also VICTOR V THE STATE (Supra); IBRAHIM V STATE (2015) LPELR -25729 (CA) P. 29 PARA B-E’’

On the 3rd ingredient that the Appellant intended by his act to cause the death of the deceased or know or ought to have known that death of the deceased was the probable consequence of his action, the proof of this mental element of the offence is a question of fact to be determined from the surrounding circumstances and reasonable inferences to be drawn from the proved acts of the Appellant.
Affirmative proof of intention without a confession is very difficult. More often than not intention can only be inferred by looking at all the surrounding circumstances and deciding therefrom whether the natural inference is that such must have been the intention of the accused person, see AREBAMEN VS. THE STATE (1972) 7 NSCC 194, AT 200; KOLO VS. C.O.P (2017) LPELR – 42577 (SC).

The factors to consider in determining the intention or knowledge include the followings:
(1) The nature of the weapon used, whether lethal or non-fatal in nature; (2) The part of the body struck or brutalized with the weapon; (3) The extent of the proximity of the victim with the lethal weapon; (4) Physical and health condition of both the deceased at the material time; (5) If the deceased was treated at a hospital and died on admission, a report or certificate by the medical officer and the treatment of the death.
See ATIKU VS. THE STATE (2010) 9 NWLR (PT. 1199) 241.

The lower Court considered all these factors in relation to the evidence adduced before the Court and concluded thus:
“Going by the evidence of PW1 and PW3 as well as the medical report in Exhibit F, I have to conclude that the 2nd, 3rd and 4th accused have, (in conjunction with others) intended to either kill the deceased outright, or cause her grievous bodily harm that would probably lead to her death.
It is immaterial who, among the attackers struck the most fatal blow either on the head of the deceased or on any other part of her body.

Each of the participants in the attacks on the deceased shares equal liability for the end-result of their collective actions”.

The findings of the lower Court based on a thorough evaluation of the evidence on record and its conclusion that the prosecution proved the case of culpable homicide punishable with death under Section 221 (b) of the Penal Code cannot be faulted.

On the second count of criminal conspiracy, conspiracy is simply an agreement between two or more persons to commit an unlawful act coupled with intent to achieve the object of the agreement; HARUNA VS. STATE (1972) 8 -9 SC 174.
Put differently, the offence is complete once there is a formation of a scheme between the parties before the actual commission of the act for which the conspiracy is formed.
The mere agreement to do or cause to be done an illegal act or a legal act by illegal means constitutes the offence and it is not necessary that the substantive offence itself be committed or be proved. The offence is complete once there is an agreement between the parties who share a common criminal intention or purpose; See NJOVENS -V- STATE (1973) 5 SC 17, in OSETOLA VS. THE STATE

LPELR – 8252 (SC).OSONDU VS. F.R.N (2000) 12 NWLR (pt. 682) 483. Thus, failure to prove a substantive offence does not make conviction of conspiracy inappropriate as it is a separate and distinct offence, independent of the actual offence conspired to commit; Conspiracy being a separate and independent offence from the crime that is the object of the conspiracy.
Proof of conspiracy or the agreement is generally a matter of plausible inference deduced from certain criminal acts of the accused persons done in pursuance of a criminal purpose common between the conspirators. It is rarely proved by direct evidence and understandably so, because of the secrecy by which it is planned and executed to the exclusion of every other person who is a stranger to the scheme. It is therefore difficult to have direct witnesses to prove the offence; EGUNJOBI VS. F.R.N (2001) 53 W.L.R.N 20 at 54.
Consequently, the Courts have held that conspiracy can be proved either by leading direct evidence in proof of common criminal design or by inference deduced from the commission of the offence; LAWSON VS. STATE (1975) 4 SC 115 AT 123. NWOSU VS. THE STATE (2004)

15 NWLR (pt 897) 466. The agreement can be inferred from what each person does or does not do in furtherance of the common purpose and it is immaterial that the persons have not met each other. JIMOH VS. STATE (2014) 10 NWLR (pt 1414) 105. Once there is evidence to commit the substantive offence, it does not matter what any of the conspirators did or who did what; SULE VS. STATE (2009) 17 NWLR (pt 1169) 33.
In the instant case, the evidence on record as rightly found by the lower Court is that the appellant together with the 2nd accused and the other accused persons participated in the beating of the deceased at the behest of the 2nd accused (the Appellant). It is also on record that is was after the suggestion of the (4th accused) that PW1 be killed so as to have easy access to kill the deceased, that they started beating PW1. These acts, the learned trial judge rightly inferred, show an agreement between the accused persons (Appellant inclusive) to commit an illegal act of killing the deceased and in furtherance of their common purpose, each of the accused persons participated in the killing of the deceased. The lower Court was therefore right when it

held that the offence of conspiracy was also proved.

The finding and conclusion are unassailable having regards to the evidence on record. The result is that the issue must be resolved against the appellant and in favour of the Respondent. Both issues having been resolved against the Appellant, this appeal is devoid of any merit and deserves to be and is hereby dismissed. Accordingly, the judgment of the lower Court in charge No. JDU/63C/2016 delivered on the 1st February 2018 by Hon. Justice Abdullahi Y. Suleiman and the conviction and sentence imposed on the Appellant are hereby affirmed.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have had the privilege of reading in advance, the leading Judgment of my learned brother Wambai JCA just delivered to which I agree with. As all the ingredients of the offences with which the Appellant was charged with, have been proved beyond reasonable doubt by the prosecution, I too find no merit in this appeal and I dismiss it. I affirm the Judgment of the trial Court.

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 considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

I too find no merit in the appeal and I affirm the judgment of the High Court of Jigawa State in Charge No JDU/63/2016 delivered by Honorable Justice Abdullahi Y. Suleiman on the 1st of February, 2018.

Appearances:

M.A. LAWAN, ESQ., with him, ADEKUNLE TAIYE FALOLA, ESQ., LADI OSENI (MRS.) and IORNENGE TORDUE (MRS.) For Appellant(s)

HAUWA ZAKAR, ESQ., (SOLICITOR GENERAL), with him, ALIU ABDULLAHI, ESQ., and COSITA JAMES UCHE, ESQ. For Respondent(s)