ADAMU v. STATE
(2022)LCN/15991(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, February 18, 2022
CA/K/306/C/2019
Before Our Lordships:
Fatima Omoro Akinbami Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
HASSAN ADAMU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE PROSECUTION IS BOUND TO CALL A HOST OF WITNESSES TO PROVE ITS CASE
All that the prosecution needs to do is to call enough material witnesses to prove its case. The quality and not the quantity of the witness testimony are the deciding factors here. The prosecution is not under a duty to call eye witnesses or all material witnesses. See Sections 178, 179 and 183 of the Evidence Act, 2011 (as amended). The prosecution needs to prove its case beyond reasonable doubt and if the prosecution can secure or achieve this standard of proof with only one witness then it is sufficient. The prosecution is also not under a duty to call any particular person as a witness, the choice of witnesses is always at the discretion of the prosecution and that discretion is unfeterred. See State v. Olatunji (2003) 12 NWR (Pt. 589) 138; Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1 SC; Offiong v. State (1998) 8 NWLR 8 NWLR (Pt. 562) SC. It is trite that it is not a condition or even a legal imperative that there must be an eye witness before a murder charge can be sustained and proved beyond reasonable doubt. Proof of the commission of the offence may proceed on circumstantial evidence that creates no room for doubt or speculation. See Madu v. The State (supra); Ndike v. The State (1994) 8 NWLR (Pt.360) 331; Igabele v. The State (2006) 3 SCM 143. This instant case was tried on circumstantial evidence including the testimony of PW1, PW2 and PW4, the dying declaration of the deceased to PW1 and PW2 and exhibit PW3 the confessional statement of the Appellant. It is settled law that a man can be convicted on his own confession alone. See Zanga Ubiero v. State (2005) 2 SC (Pt. 1) 81; Dare Jimoh v. State (2014) 3 SCNJ; Ikechukwu Okoh v. State (2014) 3 SCNJ 261. PER TALBA, J.C.A.
WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED ON HIS OWN CONFESSIONAL STATEMENT
It is settled law that a man may be convicted on his own confession which is direct, positive and is properly proved. See Saidu v. The State (1982) 4 SC 14; Alhaji Mohammed Mamman v. F.R.N (2013) 2 SCNJ 292; Jimoh v. The State (2014) 3 SCNJ, Solola v. The State (2005) 11 NWLR (Pt. 937) 460 SC; Alarape v. The State (2001) 14 WRN 1 SC. Therefore, a confession can be sustained on a free and voluntary confession of an accused notwithstanding that he retracted the confession. See Idowu v. The State (2000) 7 SC (Pt. 11) 50. The retraction of the statement by the accused does not affect its admissibility. Exhibit P3 the statement of the 1st accused person shows that the entire formal requirement of the law that is necessary for an extra judicial statement to be admitted had been complied with. See Kim v. The State (1992) 4 NWLR (Pt. 233) 17 – 42 where it was held that:
(a) It must carry the usual forms of caution.
(b) Each of the words of caution must be in the language understood by the maker
(c) It must be followed by the maker’s thumb print or signature as the case may be
(d) It must be recorded in the language understood by the Maker.
(e) It must be read over and interpreted to the maker in the language in which it is made. PER TALBA, J.C.A.
THE TEST TO DETERMINE WHETHER AN ACCUSED PERSON CAUSED THE DEATH OF A VICTIM
The law is settled that there must be a finding that the act that caused the death was done either with the intention of causing death or causing bodily injury sufficient in the ordinary course of nature to cause death. The finding that the accused inflicted an injury that was merely likely to cause death will not amount to the offence of culpable homicide punishable with death. The intention or knowledge with which the act which caused death was committed is not constructive nor can it be presumed in law but is a matter of fact to be found by the Court. The test to determine whether the accused has caused death is to see whether the cause of death is directly associated with the act. The connection between the primary cause and the death should not be too remote. The question whether death was a likely or probable consequence of the act, one would like to look at the surrounding circumstances. The fact that a consequence is probable is not necessarily synonymous with saying that the accused intends it. The Court must take into account other evidence before imputing intention. It is a common saying that even the devil himself knows not the heart of man. Courts of law are manned by human beings who have no mechanism of probing a person’s mind. Thus unless the accused confesses to the killing, only God can know for sure whether or not he intends the natural consequences of his act. The Court must consider the weapon used, the part of the deceased body where it was used and the amount of force used. See Kim v. The State (1991) 2 NWLR (Pt. 175) 622 at 637.
By virtue of Section 220(b) and 221(b) of the Penal Code, if the act is known to the accused person as “likely” to cause death, he is guilty of culpable homicide not punishable with death. See Kumbun v. Bauchi N.A (1963) N.W.L.R 49 at 51. The distinction between “likely” and “probable” can be explained as follows:
“The act of a person is “likely” to cause death if death was something which he, as a reasonable man, knew might well happen. In applying the reasonable man test the Court must take into consideration the background, education and worldly knowledge of the individual person. After the Court has given due consideration to the person’s way of life it must apply the test to the average person in that way of life and ask itself if such a person must have known that death was something which might well follow the act. That he could have been surprised that death followed the act. If the answer is in the affirmative the consequences of death is likely and the person is guilty of culpable homicide. See Kumbin v. Bauchi N. A. But when the nature of the injury cannot be ascertained especially when in this instant case the deceased was taken to the hospital but he was refused treatment on the basis that there has to be a scanning. He later did the scanning before he undergo a surgical operation. It can hardly be concluded that the death of the deceased was the direct result of the act of the appellant to the exclusion of all other probable cause.” PER TALBA, JC.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of Kaduna State High Court of Justice sitting in Zaria, delivered on the 12th of October, 2016 in charge No: KDH/Z/3C/2013. The Appellant was convicted for the offence of Culpable Homicide punishable with death under Section 221(a) of the Penal Code.
The Appellant Hassan Adamu and one other person Abubakar Adamu were arraigned and charged with the offence of criminal conspiracy contrary to Section 96(a) and punishable under Section 97 of the Penal Code and culpable homicide punishable with death under Section 221 of the Penal Code.
The charge reads as follows:
COUNT ONE (1)
That you Hassan Adamu, Abubakar Adamu on or about the 4th day of March, 2012 at Tudun-Jukun, in Zaria Local Government Area, Kaduna State agreed to do an illegal act to wit, stabbed one Shamsudeen Adamu on his stomach, hand and back and by so doing committed an offence of Criminal Conspiracy under Section 96(a) of the Penal Code and punishable under Section 97 of the Penal Code and triable by the High Court of Justice, Kaduna State.
COUNT TWO (2)
That you Hassan Adamu, Abubakar Adamu on or about the 4th day of March, 2012 at Tudun Jukun in Zaria Local Government Area of Kaduna State you caused the death of one Shamsudeen Adamu by stabbing him with a Cutlass on his stomach, hand and back with the knowledge or having reason to know that death would be the probable consequence of your Act and by so doing, you committed an offence of culpable homicide punishable with death under Section 221 of the Penal Code and triable by the High Court of Justice, Kaduna State.
It should be noted that count two of the charge was later amended wherein the word “cutlass” underlined above was substituted with the word “knife”.
The charges were read and interpreted from English to Hausa language, to the accused persons, and they pleaded not guilty to the two count charge. After the close of the prosecution case and that of the defence, the case was adjourned for judgment. Thereafter the prosecution applied to amend count two of the charge and same was granted. The defence did not raise any objection to the amendment of the charge. The amended count two of the charge was read, explained and interpreted to the accused persons from English to Hausa language. The accused persons pleaded not guilty to the amended charge. At the hearing the prosecution called four witnesses and tendered three exhibits in evidence, these are:
1. Statement of PW1 Maryam Adamu, Exhibit P1
2. Statement of PW3 Salisu Isa, Exhibit of PW2 and
3. Confessional statement of the Appellant, the English and Hausa Version of the statement Exhibit P3.
At the close of the prosecution case, the defence opened their case with the Appellant who testified as DW1 and the second accused testified as Dw2. At the close of defence both learned counsel addressed the Court. And in a considered judgment the learned trial Judge convicted the Appellant and sentenced him to death by hanging while the 2nd accused was discharged and acquitted. Aggrieved by the said judgment the Appellant appealed to this Court vide Notice of appeal filed on the 22nd of November 2017, which contain three (3) grounds of appeal. The notice of appeal was filed pursuant to the Order granted by this Court on 8th November, 2017 extending time within which to appeal against the decision of the lower Court.
At the hearing of the appeal on the 22nd November, 2021 A. K. Musa Esq. adopted the Appellant’s brief filed on 10th September, 2020 and it was deemed on the 10th March, 2021. He urged the Court to allow the appeal and set aside the judgment of the lower Court. J. A. Dan Azumi Esq. adopted the Respondent’s brief filed on 1st of April, 2021 and he urged the Court to dismiss the appeal and affirm the judgment of the lower Court. From the three (3) grounds of appeal the Appellant distilled a sole issue for the determination of this appeal thus:
“Whether based on the totality of the evidence before the trial Court, the prosecution proved its case beyond reasonable doubt to warrant the conviction and sentence of the Appellant.”
The learned Respondent’s counsel in his brief raised three issues for the determination of this appeal, thus:
1. Whether from the totality of the evidence adduced before the trial Court, the learned trial Judge was right to have held that the prosecution proved the offence of culpable homicide punishable with death under Section 221 of the Penal Code against the Appellant beyond reasonable doubt.
2. Whether the learned trial Judge was right to have convicted the Appellant on the basis of his confessional statements Exhibit P3 more so, when the evidence of both the investigation police officer PW4 and DW1 is to the effect that the Appellant’s confessional statement was not made under duress by the police to confess to the crime.
3. Whether from the totality of the evidence adduced the learned trial Court was just and fair in his judgment in convicting and sentencing the Appellant for the offence of Culpable homicide punishable with death contrary to Section 221 of the Penal Code Law, 1991 Laws of Kaduna State and discharging and acquitting the 2nd accused person on the two Courts charge.
Upon a careful perusal of the issues raised by both counsel, I find the sole issue submitted by the Appellant’s counsel more apt. I therefore adopt the sole issue for the determination of this appeal.
The learned Appellant’s counsel submitted that the burden of proof is on the prosecution to prove the case against the accused person beyond reasonable doubt. He relied on Section 135 of the Evidence Act and the cases of Ali v. State (2015) 10 NWLR (Pt.1466) 5; Igabele v. State (2006) 6 NWLR (Pt.975) 100. He submitted that the burden placed on the prosecution does not shift. The prosecution must prove every ingredient of the offence beyond reasonable doubt by credible evidence. He cited the case of Chukwu v. State (2007) 13 NWLR (2007) 13 NWLR (Pt. 1052) 430 to buttress his submission. And in the event that at the close of the case for the prosecution an essential element of the offence has not been proved beyond reasonable doubt, then doubt will be cast on the prosecution’s case and such doubt will be resolved in favour of the accused person. On the ingredients of the offence of culpable homicide, the learned counsel relied on the case of Abdu v. State (2017) 7 NWLR (Pt. 1564) 173 – 174. These are:
1. The deceased died.
2. That such death was caused by the accused person.
3. That the act that led to the death of the victim was intended to cause death or grievous hurt or that the accused knew or had reason to believe that by his action, death would be the probable and not only likely consequence of his act.
Learned counsel submitted that once an essential element of the offence is not proved, the accused is entitled to an acquittal. He cited the cases of Utuk v. State (2010) 34 WRN 171 at 179; Saidu v. State (2009) 29 WRN 56 at 124. Learned counsel submitted further that in this instant case the prosecution only proved that there was death and failed to prove that the Appellant was responsible for the death of the deceased. Learned counsel submitted that the PW3 who claimed to be the only eye witness of the incident under cross examination stated that he is not a witness of truth owing to the fact that he made two conflicting statements to the police. And none of the prosecution witnesses said in their evidence that they saw the Appellant killing the deceased or who the killer was. The prosecution has failed to establish that it was the act of the Appellant that caused the death of Shamsudeen. The prosecution must prove that the death of the deceased was the direct result of the act of the accused person, to the exclusion of all other reasonable probable cause. And there should be no assumption, speculation or conjuncture. He cited the case of Okokon Omonga v. The State (2006) All FWLR pg 930.
Learned counsel submitted that the trial Court having discharged and acquitted the Appellant on count one of the offence of conspiracy there is no basis or cogent evidence linking the Appellant with the second count of the offence of culpable homicide as there is no positive evidence that the Appellant caused the death of the deceased. None of the witnesses was able to identify the weapon allegedly used by the Appellant in killing the deceased. PW1 had limited knowledge of what led to the death of the deceased, from her evidence she did not state clearly who among the Appellant and 2nd accused person stabbed the deceased and the role played by each of them which purportedly led to the death of the deceased. Learned counsel submitted that he concede that medical evidence is desirable but not essential in proving the cause of death. However, the Court has also held that:
“to make the accused criminally liable, there must be clear evidence that the death of the deceased was caused by the accused or was a direct result of the act of the accused to the exclusion of all other possible causes”.
And therefore in this case, even though a medical report is not essential, it is desirable and necessary to assist the Court in coming to the conclusion as to whether there was death and that the death was a consequence of the act of the Appellant. The learned counsel submitted further that the learned trial Judge relied heavily on the evidence of dying declaration based on Section 40(1) of the Evidence Act. He submitted that the Supreme Court has held in the case of Akpan v. State (1992) 6 NWLR (Pt. 248) 439 (SC) that strict proof of the actual words used by the deceased is generally required in proof of the dying declaration to avoid any uncertainties. He then submitted that in this case, cogency and truthfulness of the alleged dying declaration is in doubt. The declaration in itself amounts to hearsay and is inadmissible because it becomes double hearsay due to the fact that the much needed belief of imminent danger of death is not feasible in this case. At page 92 of the record of appeal the learned trial Judge held that; “The evidence in chief of PW1, PW2 and PW4 did not link the 2nd accused person i.e Abubakar Adamu to the stabbing of the deceased except that under cross examination where PW1 said the deceased told her at home when he was brought from hospital untreated in the presence of her husband that it was the 2nd accused person that cut him on his hand and back and the 2nd accused person also held the deceased and the Appellant stabbed him with a knife”. Learned counsel submitted that the learned trial Judge discharged and acquitted both the Appellant and the 2nd accused person on the first count charge of the offence of criminal conspiracy relying on the evidence of PW1, PW2 and PW4 but he went ahead to convict the Appellant on the offence of culpable homicide. The prosecution witnesses gave different narrations/testimonies as to who among the Appellant and the 2nd accused person allegedly stabbed the deceased. And that it is trite law that the Court faced with different versions of evidence must not pick and choose but refuse all the contradictory evidence due to inconsistency. In the case of John Agba v. The State (2007) 2 NCC 179 the Supreme Court restated the position that it is now settled that where such variance or inconsistency appears or exists, the witnesses shall be treated unreliable. Learned counsel submitted that the contradiction evident in the evidence of the witnesses are substantially enough to create doubt in the mind of the trial Judge and same ought not to have been taken into consideration. He relied on the case of Ogbu v. The State (2003) All FWLR (Pt. 147) 1102. Learned counsel submitted that if the Court expunges the evidence of PW1, PW2 and PW3 as being materially contradictory, tainted with doubts and uncertainties, which is largely hearsay and unreliable, the Court will be left with the purported confessional statement of the Appellant Exhibit 3 which does not qualify as a confessional statement in compliance with Section 29 of the Evidence Act, as the statement is not voluntary. PW4 who recorded the statement confirmed that the Appellant volunteered his statement in Hausa language but he (PW4) recorded the Statement in English language and thereafter translated in Hausa language. He submitted that the Supreme Court had warned on the dangers of recording confessional statements of an accused person in a language other than the language of the accused before translation. He cited the case of Bello v. C.O.P (2018) 2 NWLR (Pt. 1603) 207 at 319 – 320 to buttress his submission. Learned counsel submitted that Exhibit 3 is a product of questions and answer sessions between PW4 and the Appellant. PW4 confirmed same under cross examination and the law is that where a confessional statement is a product of questions and answers it shall be inadmissible in law. See the case of Omisade v. R (1964) ANLR 227 SC; (1964) Vol. 3 NSCC 173. Learned counsel concluded that the evidence relied upon by the trial Court is not sufficient to prove the offence as charged and same does not satisfy the ingredients required by law to entitle the Court to hold that the Appellant is guilty of the offence charged. He urged the Court to resolve the issue in favour of the Appellant.
In his response, the learned counsel for the Respondent relied on the cases of Ojo v. F.R.N (2008) 11 NWLR (Pt. 1099) 467; Audu v. State (2003) 7 NWLR (Pt. 820) 516 and Ismail v. State (2008) 15 NWLR (Pt. 1111) 593, on the essential ingredients of the offence of culpable homicide, which the prosecution must prove beyond reasonable doubt. The Respondent’s counsel submitted that the prosecution can prove the essential ingredients through the confessional statement of the accused person, circumstantial evidence and evidence of an eye witness. See Emeka v. State (2001) 14 NWLR (Pt. 734) 666; Nigeria Navy v. Lambert (2007) 18 NWLR (Pt. 1066) 300; Mbang v. State (2010) 7 NWLR (Pt. 1194) 431; Dele v. State (2011) 1 NWLR (Pt. 1229) 508; Ilodigwe v. State (2012) 18 NWLR (Pt. 1331) 1. The learned counsel submitted that the evidence of PW1, PW2, and PW4 were unshaken and uncontroverted under cross examination. Their evidence did not only prove that the act of the Appellant caused the death of the deceased but also linked the Appellant to the cause of death and that it was the act or omission of the Appellant that must have caused it. This was also corroborated by Exhibit P3. Learned counsel submitted that proof of death by medical evidence or report is not an immutable requirement. All that is required to be proved is that the death of the deceased was a direct act or result of the accused to the exclusion of all other reasonable probable cause. See Oguntolu v. The State (1987) 1 NWLR (Pt. 50) 464. He submitted that the trial Court is at liberty to draw necessary inference of cause of death based on the established facts before it in the absence of Medical evidence.
See Obianta Okinbu Uban v. State (2003) 12 SCM 310; Patrick v. State (2007) 7 SC (Pt. 1) 96; Rex v. Nwekocha 12 WACA 455; Bakori v. State (1980) 3-11 SC 81; Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515; AIGUOREGHIAN v. STATE (2004) 3 NWLR (Pt. 2004) 3 NWLR (Pt. 860) 367. It was held that in homicide cases where the cause of death is obvious, medical evidence ceases to be of practical necessity.
Learned counsel submitted further that the prosecution has no duty to call a barrage of witnesses before the Court can convict an accused person. In law, one witness of truth can result in the conviction of an accused person, except it is an offence where corroboration is statutorily required. See Akpan v. State (supra). All that the prosecution needs to do is to call enough material witnesses to prove its case. The quality and not the quantity of the witness testimony are the deciding factors here. The prosecution is not under a duty to call eye witnesses or all material witnesses. See Sections 178, 179 and 183 of the Evidence Act, 2011 (as amended). The prosecution needs to prove its case beyond reasonable doubt and if the prosecution can secure or achieve this standard of proof with only one witness then it is sufficient. The prosecution is also not under a duty to call any particular person as a witness, the choice of witnesses is always at the discretion of the prosecution and that discretion is unfeterred. See State v. Olatunji (2003) 12 NWR (Pt. 589) 138; Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1 SC; Offiong v. State (1998) 8 NWLR 8 NWLR (Pt. 562) SC. It is trite that it is not a condition or even a legal imperative that there must be an eye witness before a murder charge can be sustained and proved beyond reasonable doubt. Proof of the commission of the offence may proceed on circumstantial evidence that creates no room for doubt or speculation. See Madu v. The State (supra); Ndike v. The State (1994) 8 NWLR (Pt.360) 331; Igabele v. The State (2006) 3 SCM 143. This instant case was tried on circumstantial evidence including the testimony of PW1, PW2 and PW4, the dying declaration of the deceased to PW1 and PW2 and exhibit PW3 the confessional statement of the Appellant. It is settled law that a man can be convicted on his own confession alone. See Zanga Ubiero v. State (2005) 2 SC (Pt. 1) 81; Dare Jimoh v. State (2014) 3 SCNJ; Ikechukwu Okoh v. State (2014) 3 SCNJ 261.
On the contention of the Appellant’s counsel that the trial Court ought to have taken into consideration that the Appellant statement was recorded in English language by PW4 rather than in Hausa language which is understood by the Appellant. The Respondent’s counsel submitted that the Appellant did not deny making the statement and he confirmed that he signed same under cross examination. It is settled law that a man may be convicted on his own confession which is direct, positive and is properly proved. See Saidu v. The State (1982) 4 SC 14; Alhaji Mohammed Mamman v. F.R.N (2013) 2 SCNJ 292; Jimoh v. The State (2014) 3 SCNJ, Solola v. The State (2005) 11 NWLR (Pt. 937) 460 SC; Alarape v. The State (2001) 14 WRN 1 SC. Therefore, a confession can be sustained on a free and voluntary confession of an accused notwithstanding that he retracted the confession. See Idowu v. The State (2000) 7 SC (Pt. 11) 50. The retraction of the statement by the accused does not affect its admissibility. Exhibit P3 the statement of the 1st accused person shows that the entire formal requirement of the law that is necessary for an extra judicial statement to be admitted had been complied with. See Kim v. The State (1992) 4 NWLR (Pt. 233) 17 – 42 where it was held that:
(a) It must carry the usual forms of caution.
(b) Each of the words of caution must be in the language understood by the maker
(c) It must be followed by the maker’s thumb print or signature as the case may be
(d) It must be recorded in the language understood by the Maker.
(e) It must be read over and interpreted to the maker in the language in which it is made.
On the contention of the Appellant’s counsel that the evidence of PW1, PW2 and PW3 are contradictorily tainted with doubts and uncertainty which is largely hearsay and unreliable therefore should be expunged. The Respondent counsel submitted that the evidence of the prosecution witnesses is sufficient to sustain a conviction. The evidence of PW1, PW2 and PW3 are not contradictory, not tainted with doubts and or uncertainties, and are not hearsay but reliable therefore should not be expunged. What is referred to by the Appellant counsel as contradictions in the prosecution evidence are minor discrepancies as against contradictions and or inconsistency.
The learned counsel submitted that where a trial Court unquestionably evaluates the evidence and appraises the facts of a case as in this case, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. Thus if there is any evidence to support a particular conclusion of a trial Court, an appellate Court which could have come at a different conclusion should restrain itself and respect the conclusion of the trial Court that saw and heard the witnesses. See the case of Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227 at 226 (SC). Learned counsel urged the Court to resolve the issue against the Appellant, dismiss the appeal and uphold the decision of the trial Court.
The Appellant was convicted for the offence of culpable homicide punishable with death under Section 221 (a) of the Penal Code. The said Section provides:
“Except in the circumstances mentioned in Section 222 culpable homicide shall be punished with death:
(a) If the act by which the death is caused is done with the intention of causing death; or
(b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.”
It should be noted that the question as to whether death was the probable or only a likely consequence of an act or of any bodily injury is a question of fact. At this stage it is important to look at the definition of culpable homicide as provided for by Section 220 of the Penal Code, which provides:
“Whoever causes death
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing a rash or negligent act, commits the offence of culpable homicide”.
It is equally important to look at the definition of the words “likely” and “probable” as provided for by Section 19 of the Penal Code. It provides:
“19(1) An act is said to be “likely” to have a certain consequence or to cause a certain effect if the occurrence of that consequence or effect would cause no surprise to a reasonable man.
(2) An effect is said to be a probable consequence of an act if the occurrence of that consequence would be considered by a reasonable man to be the natural and normal effect of the act.”
From the foregoing provisions the prosecution must establish beyond reasonable doubt, the elements thus;
A. (1) That the death of a human being has actually taken place
(2) That such death has been caused by the accused
(3) That the act was done with the intention of causing death or that it was done with the intention of causing such bodily injury as:
(a) The accused knew or had reason to know that death would be the probable and not only the likely consequence of his act;
Or
(b) That the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.
B. The mere fact that the bodily injury caused resulted in death in the ordinary course of nature does not necessarily mean that the accused intended to cause such bodily injury.
The law is settled that there must be a finding that the act that caused the death was done either with the intention of causing death or causing bodily injury sufficient in the ordinary course of nature to cause death. The finding that the accused inflicted an injury that was merely likely to cause death will not amount to the offence of culpable homicide punishable with death. The intention or knowledge with which the act which caused death was committed is not constructive nor can it be presumed in law but is a matter of fact to be found by the Court. The test to determine whether the accused has caused death is to see whether the cause of death is directly associated with the act. The connection between the primary cause and the death should not be too remote. The question whether death was a likely or probable consequence of the act, one would like to look at the surrounding circumstances. The fact that a consequence is probable is not necessarily synonymous with saying that the accused intends it. The Court must take into account other evidence before imputing intention. It is a common saying that even the devil himself knows not the heart of man. Courts of law are manned by human beings who have no mechanism of probing a person’s mind. Thus unless the accused confesses to the killing, only God can know for sure whether or not he intends the natural consequences of his act. The Court must consider the weapon used, the part of the deceased body where it was used and the amount of force used. See Kim v. The State (1991) 2 NWLR (Pt. 175) 622 at 637.
By virtue of Section 220(b) and 221(b) of the Penal Code, if the act is known to the accused person as “likely” to cause death, he is guilty of culpable homicide not punishable with death. See Kumbun v. Bauchi N.A (1963) N.W.L.R 49 at 51. The distinction between “likely” and “probable” can be explained as follows:
“The act of a person is “likely” to cause death if death was something which he, as a reasonable man, knew might well happen. In applying the reasonable man test the Court must take into consideration the background, education and worldly knowledge of the individual person. After the Court has given due consideration to the person’s way of life it must apply the test to the average person in that way of life and ask itself if such a person must have known that death was something which might well follow the act. That he could have been surprised that death followed the act. If the answer is in the affirmative the consequences of death is likely and the person is guilty of culpable homicide. See Kumbin v. Bauchi N. A. But when the nature of the injury cannot be ascertained especially when in this instant case the deceased was taken to the hospital but he was refused treatment on the basis that there has to be a scanning. He later did the scanning before he undergo a surgical operation. It can hardly be concluded that the death of the deceased was the direct result of the act of the appellant to the exclusion of all other probable cause.”
PW1 Maria Adamu, the mother of the deceased in her evidence in Chief stated thus;
“…When the deceased was stabbed he was taken to Wusasa Hospital Zaria I did not see the deceased when he was stabbed. I saw him after they brought the deceased from Wusasa Hospital when they declined to treat him until scanning was done on him.
When the deceased was taken for scanning it was directed that immediate operation be performed on him as at that time the deceased was excreting. After the operation at Limi Hospital at Sabon Gari Zaria, the deceased gave up.” See page 26 of the record of appeal.
During Cross examination PW1 stated thus:
“The deceased told me that it was 2nd accused that hurt him with a knife in his hand and back and he held the deceased and the 1st accused stabbed him with knife in his stomach. The deceased told me this information when he was brought from Wusasa Hospital.” See page 30 of the record of appeal.
PW1 stated further during cross examination that:
“The deceased told me this information in the presence of his father only. The deceased stayed the whole day in the house before taking him to the hospital.
The deceased was brought home from Hospital untreated and stayed till the following day when he was taken back to Limi Hospital. The deceased had wound in his stomach, back and two hands…” See page 31 of the record of appeal.
PW2 Tukur Magaji is the elder brother of the deceased he told the Court during examination in Chief that;
“The deceased was taken to hospital and thereafter reported the matter at police station. The police followed me to the hospital to see the deceased. The police saw the deceased at the hospital and are returned to the police station at Tudun Wada. I was at the police station when a policeman was sent to arrest the 1st accused. At the time when the 1st accused was arrested we were told that the deceased died. I saw the deceased before he died and it was the 1st and 2nd accused that stabbed him with a knife in his stomach.” See page 35 of the record of appeal.
But during cross examination PW2 stated thus;
“All that I have said in evidence before this Court I was told my father told me that the 1st accused person fought with the deceased…” See page 36 of the record of appeal.”
PW3 Salisu Isa who claimed to be an eye witness told the Court during cross examination that:
“I am not a witness of truth having made two conflicting statements.” See page 39 of the record of appeal.
PW4 Sgt Adamu Mohammed is attached to State Intelligence Bureau Kaduna State Command. He told the Court that;
“One Tukur Adamu male came to Police Headquarters Tudun Wada Zaria and reported that one Hassan Adamu stabbed his junior brother with a knife. The 1st accused is Hassan Adamu.
The incident happened on 4th March, 2012 at Tudun Wada Zaria. That about 07:15hrs one Hassan Adamu and one Abubakar Adamu conspired criminally and stabbed his younger brother with a knife immediately we followed the complainant in order to see the victim. We met the victim at late Ibrahim Mohammed memorial Hospital Aminu Road, Sabon Gari Zaria…” See page 47-48 of the record of appeal.
Now while the evidence of PW3 cannot be relied upon having said that he is not a witness of truth the evidence of PW2 is partly hearsay, having told the Court that all what he told the Court in his evidence he was told. There is also a contradiction between the evidence of PW1 and PW2 as it relates to when the deceased died. While PW1 told the Court that the deceased stayed the whole day in the house before taking him to the hospital and he was brought home from the hospital untreated and stayed till the following day when he was taken back to Limi hospital, that means that the deceased died the following day when he was taken back to the hospital.
However, PW2 told the Court that the deceased was taken to the hospital and thereafter he reported the matter to the police. The police followed him to the hospital to see the deceased. The police saw the deceased at the hospital before they returned back to the police station. And he was at the police station when a policeman was sent to arrest the 1st accused. At the time when the 1st accused was arrested, they were told that the deceased died. Although PW4 corroborated the evidence of PW2 that he went to the hospital and he saw the deceased on the date the incident was reported by PW2. The evidence of PW1 is to the effect that the deceased died the following day when he was taken back to the hospital. While the evidence of PW2 is to the effect that the deceased died on the date of the incident.
It is very important to read Section 222 of the Penal Code along with Section 221. In doing so the Court would be able to consider whether any of the exceptions given in Section 222 apply to the case. The effect of this approach will be able to make a clear logical finding and decide whether assuming that culpable homicide has been proved, the offence should be punished with death under 221. This method of approach to a homicide case was referred to and approved by the Supreme Court in the case of Oji v. The Queen (1961) N.R.L.R. 93 and (1961) ALL N.R 262.
In this instant case there is no dispute in the fact that there was the death of a human being. There is also no dispute in the fact that the appellant inflicted an injury on the deceased on his hand, his back and abdomen. The deceased was not treated until a day after when a scanning was done and he underwent an operation after which he died in the hospital. In this case, a medical report would have helped in resolving any doubt as to what caused the death. Having been taken to the hospital a day after sustaining the injury and after undergoing an operation at the hospital it is only logical that a medical report will be obtained from the hospital. As earlier mentioned, PW3 said he is not a witness of truth. And neither PW1, PW2 nor PW4 said they saw the weapon used by the appellant. That might have been the more reason why count two of the charge was amended at the close of evidence. The only difference between the amended charge and the earlier one is the substitution of the word “knife” in place of “cutlass”.
Even though medical evidence is not a sine qua non to establish the cause of death, in some cases it becomes desirable. Where there is sufficient satisfactory evidence other than medical evidence showing beyond any reasonable doubt that such death resulted from the particular act of the accused person alleged by the prosecution. For instance where the deceased died on the spot or almost immediately after the attack. If medical evidence is not produced the Court may infer such cause of death upon the circumstantial evidence adduced before it or the confessional statement of the accused provided that the circumstantial evidence or confessional statement is positively and irresistibly consistent with no other rational conclusion then that the deceased is dead and his death was caused by the act of the accused person. See the case of Galadima v. The State (2013) LPELR-20402 (CA) and Ahmed v. State (2001) 12 SC (Pt. 1) 157.
In this instant case, the deceased did not die on the spot after the attack neither did he die immediately after the attack. He died after he was refused immediate treatment at Wusasa hospital. And after he had an operation. In this instant case a reasonable man would raise some doubt as to whether the deceased actually died as a result of the act of the appellant or whether there was an intervening factor i.e a tetanus infection due to lack of immediate medical attention. Or even whether he died in the course of the operation he was made to undergo. These are certainly some reasonable doubt which could weigh on the probable or likely consequence of the act of the appellant. If the learned trial judge had read Section 222 along with Section 221 of the Penal Code respectively. And after taking into consideration the surrounding circumstances of this case he would have been able to make a clear logical finding and decide whether having proved culpable homicide, the offence should be punished with death under 221.
It is not in doubt that culpable homicide has been established. The learned trial judge having relied on Exhibit P3 the confessional statement of the Appellant which reads:
“I enter into our house kitchen and carryout a knife and followed Shamsu to his working place where I succeeded in stabbing him in his stomach his back and his hand.”
The evidence of PW1 which qualify as dying declaration as against that of PW2 which is hearsay evidence, has corroborated the confessional statement of the appellant Exhibit P3. The appellant did not raise an objection to the admissibility of the statement Exhibit P3 on grounds of involuntariness to warrant the trial Court to hold a trial within trial. The appellant did not retract the statement as well. The defence counsel objected to the admissibility of the statement on the grounds that the foundation laid by PW4 for the admissibility of the statement is at variance with the document sought to be tendered. In other words, the appellant volunteered a statement in Hausa language but PW4 recorded the statement in English language. He failed to record it in Hausa language, so as to tender both the Hausa and English version. The learned trial judge admitted the statement relying on relevancy which he said it outweighs error made in recording same. The learned trial judge was right in considering whether the statement was relevant. If the statement is relevant it is admissible and the Court is not concerned with how the evidence was obtained as long as there will be no miscarriage of justice occasioned to the appellant. The learned trial judge had subjected the statement to the test of veracity before relying on the confessional statement. The records do not show that exhibit P3 is a product of question and answer as contended by the Appellant’s counsel. The learned trial judge had also considered the defence of self-defence and provocation raised by the appellant and his findings are unassailable. The finding of the learned trial judge that the prosecution has proved the offence of culpable homicide beyond reasonable doubt is unassailable. But however in view of the surrounding facts and circumstances, it would be necessary to put into consideration the reasonable men test. The end result of the application of the reasonable man test would be to consider whether the offence is punishable with death under Section 221 or not punishable with death under Section 224 of the Penal Code respectively. In consequence thereof, the sole issue is resolved against the appellant but the appeal succeeds in part. The conviction is affirmed while the sentence is quashed. In its place the appellant is sentenced to life imprisonment, under Section 224 of the Penal Code.
FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother Abubakar Mahmud Talba, JCA.
He has dealt in depth with the issues canvassed by the parties. I agree with his reasoning and conclusions thereat. I adopt the judgment as mine. I have nothing else to add.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I had the advantage of reading, in draft, the leading judgment just delivered by my learned brother, ABUBAKAR MAHMUD TALBA, JCA.
I hereby affirm my agreement with his Lordship’s reasoning and conclusion, which I adopt as mine; and equally abide by the consequential orders contained in the leading judgment.
Appearances:
A. K. Musa, Esq. For Appellant(s)
J. A. Dan Azumi, Esq. For Respondent(s)