ALHAJI MU’AZU ALI v. THE STATE
(2011)LCN/4582(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of May, 2011
CA/K/199/C/2009
RATIO
BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF IN A CRIMINAL MATTER; WHETHER THE BURDEN OF PROVING REASONABLE DOUBT MAY SHIFT TO THE ACCUSED
It is an entrenched principle of our law of Evidence that he who asserts must prove. Therefore, in the case of proof of criminal responsibility, the duty is on the prosecution who is accusing the accused of having committed an offence to prove that the accused and no other person committed the said offence. As rightly submitted by the Appellant’s Counsel, there is no provision in our Evidence Act requiring an accused person to prove his innocence or that he did not commit the offence with which he is charged. It is clear in the provisions of section 36(5) of the Constitution of Federal Republic of Nigeria that every person who is charged with commission of an offence shall be presumed innocent until proven guilty. It is in the spirit of achieving the undiluted intentions of the makers of the Constitution that there is stipulated in section 138 of the Evidence Act, that the burden of proving that any person has been guilty of a crime or wrongful act, is, subject to the provisions of section 141 of the Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. Subsection 3 of section 138 goes further to say, if the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the accused. This position of the law was analytically recapitulated by the Supreme Court in the case of Igabele vs. State (2006) 6 NWLR Part 975 p. 100 per Onnoghen, J.S.C. at 131 and Ogbuagu. J.S.C. at 136. His Lordship Onnoghen, J.S.C. said thus: “The burden is always on the prosecution to prove the guilt of the accused person beyond all reasonable doubt. Generally speaking therefore, there is no duty on the accused to prove his innocence. However, where circumstances arise, as in this case, some explanation may be required from the accused person as the facts against him are strong. Where he fails to offer such explanations as happened in this case, his failure will support an inference of guilt against him. The facts proved by the prosecution in this case clearly established a prima facie case requiring the Appellant to explain on oath what happened to the deceased who left home that day alive in his company and with all his body parts complete but was much later found dead and buried in a grave with some of his body parts missing and no fracture or broken bones”. Then at page 136, His Lordship, Ogbuagu, J.S.C. observed and expressed as follows: “I am satisfied that the evidence adduced by the prosecution was tested, scrutinized and accepted by the trial Court, and that it conclusively, pointed to the Appellant, as the perpetrator of the murder of the deceased. It was for him to rebut the presumption that he committed the crime, at least, to cast a reasonable doubt on the prosecution’s case by preponderance of possibilities” Further in Akinmoju vs. State (2000) 6 NWLR Part 662 p.608, Iguh; J.S.C. opined at p. 629 thus: “Where, as in the present case, the evidence conclusively points at the accused as the perpetrator of the crime for which he is charged, and the evidence is duly tested, scrutinized and accepted by the Court, the onus is on the accused to rebut the presumption of guilt or to cast a reasonable doubt on the case of the prosecution by preponderance of probabilities. See Onakpoya vs. The Queen (1959) SCNLR 384, Kalu vs. The State (1993) 6 NWLR Part 300 p. 385 at 396. In the present case, there was no attempt whatsoever on the part of the Appellant to rebut the presumption of guilt against him or to cast reasonable doubt on the case of the prosecution, albeit, by preponderance of probabilities. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
CALLING OF WITNESSES: WHETHER NO PARTICULAR NUMBER OF WITNESSES IS REQUIRED TO PROVE A MURDER CASE
On the requirement that the prosecution must prove that such death was caused by the accused, it must be emphasized that no particular number of witnesses was required by law for such to be proved. It can be proved by the testimony of only one eye witness to the murder, so long as the testimony is credible and believable. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
EVIDENCE OF A SOLE WITNESS: WHETHER A COURT OF LAW CAN CONVICT ON THE EVIDENCE OF A SINGLE WITNESS
It is settled law that where a single witness called by prosecution is neither an accomplice nor a tainted witness, a Court of law is entitled to convict mainly on his credible evidence where his testimony did not by law require corroboration. Once the Court is satisfied with the cogency, high quality and credibility of the evidence of a witness and accepts it, conviction based on such evidence should not be tampered with unless such evidence by law requires corroboration. See Oguonzee vs. State (1993) 5 NWLR Part 551 p.521, per Iguh, J.S.C. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
FINDING OF FACT OF A TRIAL COURT: DUTY PLACED ON AN APPELLANT TO SUCCEED IN AN APPEAL AGAINST FINDINGS OF FACT MADE BY A TRIAL COURT
The law is that to succeed in an appeal against findings of fact made by a trial Court, it must be shown that in the performance of its primary duty of appraisal of oral evidence and ascription of probative values to such evidence, the trial Court made imperfect or improper use of the opportunity of hearing and seeing the witnesses or drew wrong conclusion from acceptable or proved facts to not support or that the findings reached are unsound. See Iko vs. State (2005) 9 NWLR Part 671 pg 54. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
ALHAJI MU’AZU ALI Appellant(s)
AND
THE STATE Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The facts preceding this appeal are that on the 30th June, 2005, the Appellant was arraigned before the High Court of Katsina State sitting in Funtua for causing the death of one Alhaji Garba Na Muri on the 17th day of April, 2004 at about 3.00 pm at Kadde Wakataba Doka village in Fiskari Local Government Area; Katsina State, by cutting his head with an axe with the knowledge that death would be probable consequence of his act and thereby committed an offence punishable with death under section 221 of the Penal Code. He pleaded not guilty to the charge which was read over and explained to him. The charge proceeded to trial during which the prosecution called five witnesses while the defence presented three, including the Appellant himself. After the hearing and the addresses of Counsel for the parties, the trial Court evaluated the evidence and then found the Appellant guilty as charged, and sentenced him to death, to be hanged by the neck until he is dead.
The Appellant was disappointed with the pronouncement of the trial Court hence this appeal. The parties filed and exchanged their Briefs of Argument in accordance with the Rules of this Court, and later adopted their respective Briefs of Argument at the hearing of this appeal.
In presenting the Appellants’ Brief of Argument, five burning issues were raised by the Appellant for consideration by this Court. They are:
“1. Whether the evidence of P.W.1 requires corroboration.
2. Whether the defence of self-defence was available to the Appellant.
3. Whether the Appellant has a legal duty or obligation to prove his innocence.
4. Whether the trial Court’s evaluation of evidence adduced at the trial supports the judgment.
5. Whether the prosecution (Respondent) could be said to have proved its case against the Appellant in view of the numerous inconsistencies, such as failure to invite the IPO (Inspector Amos Tache), investigating or reporting the investigation on the Appellant’s alibi; failing to tender the Appellant’s statement and subjecting Exhibit B to appropriate forensic analysis and recovering P.W.1’s matchet”.
It was emphasised in the argument tendered in respect of issue No. I by the Appellant’s Counsel, Chief U. A. Mbuko Etq; that the only persons present at the scene of crime were the deceased victim, (Alhaji Garba Na Muri); Alhaji Muhammadu Jabbo (P.W.1) and the Appellant, Alhaji Mu’azu Ali. He referred to P.W.1’s evidence where he stated that the Appellant’s children were close by and that the Appellant ran to his children for reinforcement, and apart from his own axe and knife, he recovered an axe, cap and wristwatch from the Appellant at the scene of crime, and then contended that P.W.s’ 2, 3 4 and 5 were not witnesses to the fact, and, in that con, the testimonies of P.W.2, P.W.3, P.W.4 and P.W.5 were not eye-witnesses accounts.
He then turned to the remarks of the trial Court at pages 49-50 that the evidence of P.W.1 needed to be corroborated and that it, somewhat, found corroboration in the evidence of P.W.2 and P.W.3. Counsel cited the cases of Ogunbayo vs. The State 5 MJSC p.32 at 45 – 46 paras. G – A and Nwanabe vs. The State (1995) 3 SCNJ 77 at 84 where the term, ‘corroboration’ was defined showing therefore that a corroborative evidence must have two ingredients that is to say; (a) that a crime was committed and (b) that the crime was committed by the accused. It was further stated that, where the ingredients are lacking, the evidence cannot be said to have provided the requisite corroboration, and, it is fatal to the case for the prosecution. He cited Jatau vs. Danladi (1995) 8 NWLR Part 415 p. 614 and Iko vs. The State (2001) ALL FWLR Part 68 p. 1161 at 1178 in support and urged that since corroborative evidence is lacking in this case, issue No. I should be resolved in favour of the Appellant.
It is necessary to observe that learned Counsel for the Appellant did not proffer any argument in respect of issue No. 2 which emanated from ground No. 6 of the Appellant’s Notice and Grounds of Appeal. In this regard, the said issue No. 2 in respect of which no argument had been presented is hereby deemed abandoned.
Accordingly issue No. 2 and ground No. 6 in the Notice and Grounds of Appeal are hereby struck out for having been abandoned.
On the third issue; whether the Appellant has a legal duty or obligation to prove his innocence, learned Counsel made reference to the trial Court’s remarks at page 54 lines 3 – 4 of the record of appeal about the various people mentioned by the Appellant, and, who, he had failed to produce to testify on his behalf, which Counsel argued, had weighed heavily on the mind of the Court, and, stated that the Appellant could keep mute if he chooses as prescribed by the law and/or call witnesses to testify in his defence or rest his case on the prosecution’s case. He invoked the provisions of sections 138(1) and (2) and 36(5) of the Constitution of the Federal Republic of Nigeria and the case of Chianugo vs. State (2002) 2 NWLR Part 750 p. 225 at 236 paras F – G and submitted that it is not the duty of the accused to prove his innocence and that the trial Court was, not only prejudicial but, it also wrongly applied the law on the onus of proof in criminal cases. Counsel then urged that this issue be resolved in favour of the Appellant.
Arguing in respect of issue No. 4, Counsel referred to the evidence adduced at the trial Court contained at pages 8 – 29 of the record of appeal and the trial Court’s assessment and evaluation of the same at pages 38 – 55 of the record and submitted that the trial Court dwelt on the submissions of defence Counsel touching on self defence, and provocation in arriving at its decision to convict the Appellant rather than on the evidence before it. He stressed that the defence of self defence and provocation arose in the written address of defence Counsel, that the Appellant never alluded to or presented any defence other than a total denial. He argued that the trial Court was in grave error to have placed reliance on that. He referred to Okwejiminor vs. Gbakeji (2008) FWLR Part 409 p. 405 at 447 paras. D – E, Lewis & Peat Ltd. vs. Akhimien (1976) 7 SC 157, Niger Construction vs. Okugbeni (1987) 4 NWLR Part 67 p. 787, Igwe vs. A.I.C.E. (1994) 8 NWLR Part 363 p. 459 and Ndika vs. Chiejina (2003) 1 NWLR Part 802 p. 451 at 483 paras B – F and submitted that the error of Counsel in addressing on self – defence as against the Appellant’s denial of the allegation cannot be visited punitively on the Appellant. He urged this Court to resolve the issue in favour of the Appellant.
Addressing the Court on issue No. 5, in the Appellant’s Brief of Argument, Counsel submitted that to secure a conviction for murder (Culpable Homicide), it is not sufficient to merely prove that the deceased died. It must be proved beyond reasonable doubt, that the death of the deceased resulted from the act of the accused person and that the act was intentional. The cause of the death of the deceased must be traceable to the act of no other person than the accused person. He contended that the trial Court misunderstood and misapplied the principles of law in the cases of Agih vs. Ejinkonye & Bros Ltd. (1992) 3 NWLR Part 228 p. 200 at 211 paras. G – H; and Mohammed vs. State (1991) 5 NWLR Part I92 at 438 as analyzed by him at page 49 lines 12 to 26 and page 50 lines 1 – 10 of the record.
He submitted that, neither P.W.2 nor P.W.3 witnessed the killing of Alhaji Garba Na Muri and that Exhibit B was received from P.W.1 by P.W.3. He stressed that notwithstanding the trial Court’s reliance on Exhibits A and B, the testimonies of P.W.1, P.W.3 and P.W.4 call for proper scrutiny and caution. He said that the making of Exhibit A by P.W.4, the Medical Doctor was not based on professional analysis but on hearsay evidence that he received from P.W.3 that the late Alhaji Garba Na Muri died as a result of a cut by an axe making a deep larceration on his head and causing seizure of brain function and consequent death. He argued that it would have been necessary to produce the knife used by P.W.1 and subject both the knife and the axe, also, recovered from P’W’ 1 to forensic analysis of finger prints and DNA. He alleged that there was no proper investigation of the allegation and the investigating Police officer who recorded the Appellant’s statement was not called to testify. He urged the court to invoke section 149 of the Evidence Act. He referred to the cases of Shande vs. State (2005) 12 MJSC p. 152 at 173 – 174 paras G – B; Aiguoreghian vs. State (2004) 1 SCNJ p. 65 at 66; Udosen v. State (2005) 8 NWLR Part 928 p. 587 at 603 paras D – G and 604 paras A – D and Adekunle vs. State (2006) 10 MJSC p. 107 at 121 paras D – E and 127 – 128 paras B – C and submitted that the most that could be said of the Appellant was that he was a suspect, and that suspicion does not ground a conviction. He argued that serious doubts exist in this case, and, when there are doubts, they are usually resolved in favour of the accused person. He finally submitted that where the prosecution fails to prove beyond reasonable doubt that the act of the accused person caused the death of the deceased, a verdict of discharge and acquittal must be entered. He urged that this issue be resolved in favour of the Appellant that the appeal be allowed, that the decision of the trial High Court be set aside, that the conviction and sentence of the Appellant by the trial Court be set aside and the Appellant be discharged and acquitted.
The Respondent embraced all the issues propounded by the Appellant for consideration by this Court. It was pointedly argued by learned Counsel for the Respondent, A. A. Ibrahim Esq, that it
was never distinctively stated in the case that corroboration of any sort was required for the evidence of P.W.1 . He explained that P.W.1 was not an accomplice on the facts of the case and that his evidence was of such a quality and cogency; that the trial Court accepted it. He drew attention to the decisions in Baridam vs. The State (1994) 15 CNJ p. I at 15; Hausa vs. The State (1994) 7 -8 SCNJ p. 144 at 161 and Olayinka vs. The State (2007) 9 NWLR Part 1040 p. 561 at 576 paras D – E and p. 584 paras A – B and submitted that the evidence of one credible witness which is accepted and believed by the trial Court is sufficient to secure a conviction, unless such witness is an accomplice in which case his testimony requires corroboration. He stated that even though the evidence of P.W.1 required no corroboration, the trial Court still found corroborative evidence in the testimonies of P.W.2 and P.W.3. Counsel, however, emphasised that corroboration need not consist of direct evidence that the accused committed the offence nor should it amount to confirmation of the whole account given by a witness, provided it corroborates the evidence in some respect material to the charge. He cited Ogunbayo vs. The State (2007) 8 NWLR Part 1035 p. 157 at 178 paras E – F and 179 paras B – C.
On issue No. 2, which was obviously abandoned by the Appellant, learned Counsel submitted that the defence of self defence was neither raised by the Appellant in his defence nor was it borne out by the evidence before the trial Court. It was only raised in the address of Counsel for the accused. Counsel submitted that where an accused person has not expressly raised the defence of self – defence, the issue can only be considered, if from the available evidence the defence avails him so that the Court could address it.
He cited Uwagbe vs. The State (2008) 12 NWLR Part 1102 p.621 at 639 paras E – G. He further relied on Baridam vs. The State (supra) at pages 12 – 13 and submitted that for the Appellant to avail himself of the defence of self defence, he must show that his life was so much endangered by the act of the deceased, that the only option that was open to save his life was to kill the deceased.
Dealing with issue No. 3, learned Counsel grounded his submission on the decision in Baridam vs. The State (supra) at p. 15 and the provisions of section 138(3), 135(1) and (2) and 139 of the Evidence Act Cap EI4, Laws of the Federation of Nigeria, 2004. He explained that the prosecution is only enjoined to call witnesses sufficient to prove the case beyond reasonable doubt and, the moment that burden is discharged, it shifts to the accused to prove any doubt in the case. He asserted that the trial Court never placed any burden on the Appellant to prove his innocence, and, therefore asked that the issue be resolved in favour of the Respondent.
In endeavouring to debunk the facts analysed by the Appellant’s Counsel in respect of issue No. 4, Counsel authoritatively referred to some pages of the record of this appeal particularly, pages 38 – 46 lines 18 – 20,page 47 lines 17 -23,page 48 lines 1-2 and l1 – 15, page 50 lines 11 – 15, page 52 lines 14 – 77 , page 53 lines 14 – 21, 22 21 where he said, the trial Court properly evaluated and considered the evidence adduced by the parties and arrived at the conclusion that the three ingredients of the offence of culpable homicide had been established by the prosecution. He referred to the cases of Ndidi vs. The State (2005) 17 NWLR Part 953 p. 17 at 32 – 33 paras G – A and Ogidi vs. The State (2005) 5 NWLR Part 918 p. 286 at 311 – 312 paras H – B to show that the trial Court complied with the principles stated therein for assessment of credibility of a witness and arriving at its decisions, and, then urged this Court to resolve the issue in favour of the Respondent. To tackle issue No. 5, learned Counsel, firstly, contended that the principles of law stated in Agih vs. Ejinkonye & Bros Ltd. (1991) 3 NWLR Part 192 p. 438 were correctly applied by the trial Court when it observed that, it can convict upon the uncorroborated evidence of P.W.1 who was a competent witness and not an accomplice.
On the argument of Appellant’s Counsel that the evidence of P.W.4 and his production of Exhibit A were based on hearsay evidence, Counsel for the Respondent, then referred to the testimony of P.W.4 at p. 16 lines 13 – 19 where P.W.4 stated that he reviewed the body and performed post mortem examination, and, upon physical examination, he discovered a deep cut wound on the skull and inculminated fracture on the skull. There was also a brain injury. He further argued that the provisions of section 149 of the Evidence Act can only be invoked, where the parry deliberately withheld evidence but not where the prosecution was selective as to the number of witnesses it settled down to call. He cited Ani vs. State (2003) 11 NWLR Part 830 p. 142 at 173 paras A – c, Ndidi vs The state (supra) at p.31 para H, Olayinka vs. The state (supra) at p’ 584 paras A – B, Hausa vs. The State (supra) at 161 and Agbo v. The State (2006) 6 NWLR Part 977 p.545 at 584 – 585 paras F – A and submitted that the prosecution is not bound to call all witnesses or host of witnesses to prove its case, and that the evidence of one credible witness if believed is enough, that proof beyond reasonable doubt is not proof beyond shallow of doubt. He urged this Court to hold that the prosecution had proved the case against the Appellant to warrant the conviction and to dismiss the appeal and affirm the decision of the trial Court.
In resolving the question posed in the first issue propositioned by the Appellant in this appeal, it is absolutely imperative to have a precise picture of the nature of the charge preferred against the Appellant at the trial High Court. The sledge-hammer of the law fell on him when, on the 30th June, 2005 he was arraigned before the trial High Court for the offence of culpable homicide punishable with death under section 221 of the Penal Code. There is clear manifestation at the trial that the prosecution, in proving the crime against the Appellant, called five witnesses who testified as P.W.1, P.W.2, P.W.3, P.W.4 and P.W. 5. A microscopic examination of the facts presented by the witnesses on behalf of the State reveals that P.W.1, as dispassionately stated by the Appellant’s Counsel in his argument, was the only eye-witness to the gruesome and wicked act ascribed to the Appellant who testified at the trial Court. I must confess I was unable to comprehend the connotation of the question raised by the Appellant’s Counsel in this first issue, i.e. ‘whether he was trying to ascertain whether the said evidence of the lone witness to the crime needed corroboration in law or that it indeed required corroboration of which no corroborative evidence, according to him, was furnished through any other witness at the trial.
It is a known principle of law that Courts may resolve the issues emanating from or act on the testimony of a single witness, even where there is no other evidence which supports it. However, there are certain categories of witnesses and certain types of evidence which are dangerous to rely on if they are not supported by other evidence. Some situations were statutorily prescribed while some evolved out of practice. I think it necessary at this juncture to highlight the situations where the law mandatorily requires that corroborative evidence be furnished to ascertain whether an offence of culpable homicide punishable with death is inclusive, thereby justifying the question posed by the Appellant’s Counsel.
By section 179 of the Evidence Act, corroborative evidence is required for the proof of treason and treasonable offences, charge of perjury, exceeding speed limit, seduction and sexual offences. What it means is that in the aforestated cases, the law strictly prescribed that conviction cannot be had on the uncorroborated testimony of a single witness. Therefore, when a piece of evidence requires corroboration, what to look for is any independent testimony in support of the evidence. The situations where corroboration is not strictly needed but warning may be necessary include testimonies of accomplices, evidence in sexual complaints, evidence of children and witnesses suffering from mental disorders and witnesses with criminal connections and claimants to the property of deceased persons.
It is straight and clear, from the foregoing, that the offence of culpable homicide punishable with death is not inclusive in the class of offences that were statutorily required to have the testimonies of two independent witnesses proving that the accused committed the offence before a conviction can be secured.
So, since it is not statutorily stipulated nor circumstantially preferrable that the evidence of a single eye witness in a homicide trial must be corroborated, the double-edged question phrased as issue No. I in the Appellant’s Brief, does not arise.
Further, the remark made by the trial Court in its judgment delivered on 19/3/09 that the testimony of P.W.1 has been corroborated by P.W.2, Alhaji Sani Barume and P.W.3, M. Musa Tukur, was totally uncalled for and unnecessary as the evidence of P.W.1 being the only eye witness required no corroboration in law. The trial Court rightly stated the position of the law in the case of Agih vs. Ejinkonye & Bros Ltd (1992) 3 NWLR Part 228 p- 200 at 2ll, but, suddenly appeared a bit hazy as if it was unsure of its conviction upon the evidence of P.W.1, the only eye witness to the crime and was then shopping for corroborative evidence to support the eye witness account given by P.W.1 .
As I, earlier, mentioned, the Appellant was arraigned for an offence of culpable homicide punishable with death under section 221 of the penal Code. The offence for which the Appellant was charged was not circumscribed by the law as one of those requiring corroboration. It is on the strength of this, I would resort to the case of Oguo nzee vs. State (1993) 5 NWLR Part 551 p. 521, where the Supreme Court, per Iguh, J.S.C. stated that where a single witness called by the prosecution is neither an accomplice nor a tainted witness, a Court of law is entitled to convict mainly on his credible evidence where his testimony did not by law requires corroboration.
Once the Court is satisfied with the cogency, high quality and credibility of the evidence of a witness and accepts it, conviction based on such evidence should not be interfered with unless such evidence by law requires corroboration. On this footing, the question raised in issue No. I is hereby answered in the negative, and resolved in favour of the Respondent.
I reiterate that, no argument of any sort was canvassed by the Appellant’s Counsel in respect of the question framed as issue No. 2. The issue, was definitely abandoned notwithstanding the Respondent’s Counsel’s response to it. See Agbo vs. State (2006) NWLR Part 977 p.591 where the Supreme Court opined that any issue for determination on which argument is not proffered in an Appellant’s Brief of Argument, is deemed abandoned. Accordingly, issue No. 2 in respect of which no argument was tabled before this Court for consideration is hereby deemed to have been abandoned by the Appellant, and it is hereby struck out.
I shall now proceed to consider the issue originally numbered as 3 in the Appellant’s Brief of Argument.
It is an entrenched principle of our law of Evidence that he who asserts must prove. Therefore, in the case of proof of criminal responsibility, the duty is on the prosecution who is accusing the accused of having committed an offence to prove that the accused and no other person committed the said offence. As rightly submitted by the Appellant’s Counsel, there is no provision in our Evidence Act requiring an accused person to prove his innocence or that he did not commit the offence with which he is charged. It is clear in the provisions of section 36(5) of the Constitution of Federal Republic of Nigeria that every person who is charged with commission of an offence shall be presumed innocent until proven guilty. It is in the spirit of achieving the undiluted intentions of the makers of the Constitution that there is stipulated in section 138 of the Evidence Act, that the burden of proving that any person has been guilty of a crime or wrongful act, is, subject to the provisions of section 141 of the Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
Subsection 3 of section 138 goes further to say, if the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the accused. This position of the law was analytically recapitulated by the Supreme Court in the case of Igabele vs. State (2006) 6 NWLR Part 975 p. 100 per Onnoghen, J.S.C. at 131 and Ogbuagu. J.S.C. at 136.
His Lordship Onnoghen, J.S.C. said thus:
“The burden is always on the prosecution to prove the guilt of the accused person beyond all reasonable doubt. Generally speaking therefore, there is no duty on the accused to prove his innocence. However, where circumstances arise, as in this case, some explanation may be required from the accused person as the facts against him are strong. Where he fails to offer such explanations as happened in this case, his failure will support an inference of guilt against him. The facts proved by the prosecution in this case clearly established a prima facie case requiring the Appellant to explain on oath what happened to the deceased who left home that day alive in his company and with all his body parts complete but was much later found dead and buried in a grave with some of his body parts missing and no fracture or broken bones”.
Then at page 136, His Lordship, Ogbuagu, J.S.C. observed and expressed as follows:
“I am satisfied that the evidence adduced by the prosecution was tested, scrutinized and accepted by the trial Court, and that it conclusively, pointed to the Appellant, as the perpetrator of the murder of the deceased. It was for him to rebut the presumption that he committed the crime, at least, to cast a reasonable doubt on the prosecution’s case by preponderance of possibilities”
Further in Akinmoju vs. State (2000) 6 NWLR Part 662 p.608, Iguh; J.S.C. opined at p. 629 thus:
“Where, as in the present case, the evidence conclusively points at the accused as the perpetrator of the crime for which he is charged, and the evidence is duly tested, scrutinized and accepted by the Court, the onus is on the accused to rebut the presumption of guilt or to cast a reasonable doubt on the case of the prosecution by preponderance of probabilities. See Onakpoya vs. The Queen (1959) SCNLR 384, Kalu vs. The State (1993) 6 NWLR Part 300 p. 385 at 396. In the present case, there was no attempt whatsoever on the part of the Appellant to rebut the presumption of guilt against him or to cast reasonable doubt on the case of the prosecution, albeit, by preponderance of probabilities”.
All these have strongly established that even though there is no duty placed on the accused to prove his innocence, the moment the prosecution was able to establish that he was the perpetrator of the crime he is charged with, the onus shifts on him, at the very least, to cast some doubt on the case of the prosecution, or rebut the presumption of guilt against him.
I have, myself, studied the observations made by the trial Court regarding the failure on the part of the Appellant to call the persons he mentioned in his evidence to testify in his support. They seemed to be begging for some explanations from the Appellant, after the prosecution, via the evidence of P.W.1, the only eye-witness to the crime, convinced the trial Court beyond reasonable doubt that the Appellant, actually was the murderer of Alh. Garba Manuri. The Court, after assessment and evaluation of the evidence proffered by the prosecution, said at p. 53, last paragraph, thus:
“I believe P.W.1 that the accused person had sneaked to where the deceased was lying down and inflicted the fatal blow on his head with the axe after which he tried to do the same to P.W.1 if not for the latter’s prompt unsheathing of his matchet and facing the accused which the accused person found overwhelming and therefore decided to retreat and escape”.
The record of proceedings of the trial High Court never portrayed the Court as having heaped the onus of proving his innocence of the crime on the accused. To further buttress that it was some explanations the trial Court was calling or yearning for, as to what transpired on that fateful day, 17th April, 2004 at Kadde Stream, the trial Court after evaluating the evidence adduced by the Appellant at p. 54 – 55, the last paragraph, line 4, said:
“However as I have already observed, those testimonies were silent on the happening of 17th April, 2004 at Kadde Stream when the accused person struck Alh. Garba with an axe on the head thereby causing his death”.
There is utter indication that the trial Court did not cast the onus on the Appellant to prove his innocence, and I would therefore not hesitate in answering issue No. 3 in the negative.
I must observe that issues Nos. 4 and 5 are inter-related and the most appropriate form to resolve them for brevity sake, is by considering the two together.
The trial Court in its evaluation of evidence at pages,49,50,53,54 and 55 of the record said inter-alia:
“The testimony of P.W1 has been direct and to the point. According to him the accused person had met him (P.W.1) sitting with Alh. Garba Na Muri under a tree at Kadde Stream. The accused then wanted to use the trough belonging to the father of the deceased but the deceased objected on the ground that the accused had earlier on boasted that he had nothing to do with the property of the deceased. Why should he now seek to use the trough of his father? The witness said that particular statement had seemingly provoked the accused person who did not act instantly until a while late (sic) as the deceased (Alh. Garba) and P.W.1 were under the tree and the accused came and suddenly hit the deceased with an axe on the head.
Although this witness was the only eye witness to the actual act of stabbing with the axe (Exhibit B) under section 179( 1) of the Evidence Act no particular number of witnesses shall in any case be required for the proof of any fact.
The Court of Appeal also held in the case of AGIH VS. EJINKOONYE & BROS LTD (1992) 3 NWLR (PT 228) p. 200 AT p. 211 G – H that:
“In Criminal matters, where the standard of proof is higher, there is no rule of law or practice which makes a Court hesitant in convicting upon the evidence of a single witness unless there is a suggestion that the witness is an accomplice or in a case where corroboration is required either by law or as a matter of practice “.
See also MAHAMMED V. STATE (1991) 5 NWLR (PT.192) 439.
The testimony of P.W.1 has been corroborated by P.W.2 Alhaji Sani Barume who said he had gone to the scene and confirmed the news of his son’s death that had reached him. He said he found the corpse being guarded by one Filani Goma and one Mai-unguwa Na Goje. And under cross-examination the witness told this Court that the hostility was over a water trough used in watering cattle at the stream. P.W.3 Cpl Musa Tukur too said he had visited the scene among a team of police detailing and they had seen the corpse of Alh. Garba lying down there and that they hand picked the corpse from the scene to Faskari initially and then to the General hospital Funtua subsequently the witness also confirmed recovering the axe used from P.W.1 who had testified that he had twisted the hand of the accused person and retrieved from him the said axe by force.
It is my view accordingly that the said Alhaji Garba’s death had actually been caused by the accused person. I have looked at Exhibit ‘B’, the axe used in striking Alh. Garba Na Muri and come to the conclusion that it is by all means a very lethal weapon. To apply it in striking somebody on the head will definitely lead to his death. That is the only probable consequence I can think of.
No wonder therefore that Alhaji Garba Na Muri died on the spot at Kade Stream. The Supreme Court again in the case MICHEAL V. STATE (Supra) AT P. PARAGRAPH C held that:
“Where the deceased died on the spot soon after the injury inflicted by an accused person, the accused person will be guilty of causing the death”. ADAMU V. KANO N. A. (1956) SCNLR 65 AND BAKURI V. STATE (1965) NMLR 163 cited.
All the story given by the accused person and his two additional witnesses in his defence regarding the genesis of his hostility with the deceased may and may not be true.
However the underlying issue is the event of the 17th April, 2004 whereby Alh. Garba Na Muri’s life was brutally and mercilessly extinguished.
I disbelieve the story told by the accused as to how (he said) P.W.1 attempted to strike him (accused) with a matchet but missed him and struck the deceased instead.
I believe P.W.1 that the accused person had sneaked to where the deceased was lying down and inflicted the fatal blow on his head with the axe after which he tried to do the same to P.W.1 if not for the latters prompt unsheathing of his matchet and facing the accused which the accused person found overwhelming and therefore decided to retreat and escape.
Alhaji Garba as well as P.W.1 were definitely taken unaware by the accused person who suddenly struck the former.
Eventually the accused had mentioned some people said to have accompanied him to Faskari Police Station to lodge a complaint, people like Abbas Machika, Nasiru and Abubaka Machika, he called none of them to testify and support his assertion. He also did not call one Hardo Dogo Buti whom he said he have gone to complain to. In fact under cross-examination the accused as D.W.1 confirmed that the said Hardo was still alive. The accused also failed to call the village head or his neighbor Ummaru Iya whom he said he had lodged his complaint with when he did not meet the village head, Abubaka Michika at home. Ummaru Iya he had said had taken him on a motor cycle to the village head whom they found to have just returned from a trip to Katsina very tired and unable to go to Faskari that evening.
D.W.2 and D.W.3 called by the accused person in addition to his own testimony, gave evidence of certain events that had taken place before the 17th April, 2004 when Alh. Garba was killed. Their testimony had no relation whatsoever with the present case. They relate to some instances in the past when the late Alh. Garba had some misunderstanding with the accused person over his farm crops which the accused person cattle were suspected to have destroyed. Those complainants were however according to the witness investigated and decided against the late Alh. Garba by the Ward Head and also by the Police.
In some way those events would only establish a real motive behind the killing of Alhaji Garba by the accused person as it reveals that there had been blood between them and that the accused had been nursing some grudges and ill feelings against the deceased. However as I have already observed those testimonies were silent on the happening of 17th April, 2004 at Kadde Stream when the accused person struck Alh. Garba with an axe on the head thereby causing his death.
Finally I am of the opinion that the prosecution has established all the ingredients of the offence of culpable homicide punishable under S. 221 of the Penal Code against the accused person and I hereby convict you of the offence as charged”.
The all important question one would ask at this stage is, what did the prosecution need to establish to prove the guilt of the Appellant; and were they all captured in the evaluation made by the trial Court?
Our criminal law is clear and exact as to what it dictates in checking the criminality in our criminal justice system, for instance, section 221 of the Penal Code which deals directly with the offence the Appellant was charged with, dictates that except in the circumstances mentioned in section 222 of the Code, culpable homicide is punishable with death if the act by which death is caused is done with the intention of causing death, or 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.
Therefore, to secure a conviction under this section, the prosecution must thoroughly establish before the Court the following qualities necessary to prove commission of the offence:
(1) The deceased had died;
(2) His death was caused by the accused; and
(3) The act of the accused which caused the death was intentional having the knowledge that death or grievous bodily harm was probable consequence of the act.
Culpable homicide punishable with death is committed by a person who causes death by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or by doing an act with the knowledge that he is likely by such act to cause death; or by doing a rash or negligent act. See 220 of the Penal Code.
As I earlier observed, the prosecution must prove the commission of the offence beyond reasonable doubt and this can be done by direct oral evidence or testimony of witnesses who saw and heard and believed. Also, by means of circumstantial evidence, a case can be proved beyond reasonable doubt.
We should right now have recourse to the evidence adduced before the trial Court to ascertain whether the ingredients of the offence of culpable homicide punishable with death were established or whether any doubt existed that would have titled the justice of the case in favour of the Appellant.
As for the first ingredient of the offence that the deceased had died, it is clearly borne out in the evidence produced through P.W.1, P.W.2 and P.W.4 that the deceased had died. P.W.1, said in his evidence thus:
P.W.1: As we were lying under the tree the accused suddenly hit Alhaji Garba with an axe and the latter died instantly. The accused hit Alhaji Garba with axe right in the centre of his head”. (Underlining mine).
P.W.2; Alhaji Sani Barume, who said that Alh. Garba Namuri was, his son, also, said:
“On the 17th April, 2004, I was at home when a message was sent to me that Alh. Mu’azu, the accused person had killed my son, Alh. Garba. My son Garba was taken to Hospital. I went to the scene at Kadde. When I reached there I confirmed that my son was killed. I met Filani Gome and the Ward Head Mai Unguwa na Gaje of Unguwar Doka looking after the corpse (sic). I also met Sani the younger brother also guarding the corpse.
Message was sent to the Police at Faskari along with the corpse. I accompanied the corpse to Faskari. I stayed at Faskari as the corpse was brought down to Funtua. Later in the night the corpse was brought back to Faskari at Kore’s house where we spent the night. The following morning the corpse was buried. !’ (Underlining mine for emphasis).
P.W.4, Imadudden Zakariya. a holder of MBBS and Specialist Diploma in O. W. G. who works in the Out-Patient Department in the General Hospital Funtua as a Medical Officer, and who, also, carries out surgical treatments and post-mortem examinations of deceased bodies at the hospital, told the trial Court as follows:
“On the 17th April, 2004 I was invited to examine a body brought to the hospital and confirm the cause of death. A policeman accompanying the corpse said the person had been linked by hitting with an axe in the head. I reviewed the body and performed the post mortem examination. By physical examination I found a big cut wound on the skull and in (sic) culminated fracture of the skull. There was also a brain injury. In this case most possible cause of death was the Neutrogena and hemonhagic shock which lead to cardio-vascular and respiratory arrest. After performing the examination I handed the report to the police man who accompanied the corpse. If I see the report I should identify it from my handwriting and signature. The owner of the corpse is one Garba”.
(Underlining mine for emphasis).
From the evidence of the above mentioned witnesses, it is clear that the trial Court’s conviction that the death of the deceased Alhaji Garba Namuri, indeed, occurred cannot be disproved or disparaged.
On the requirement that the prosecution must prove that such death was caused by the accused, it must be emphasized that no particular number of witnesses was required by law for such to be proved. It can be proved by the testimony of only one eye witness to the murder, so long as the testimony is credible and believable.
In the instant case, only P.W.1, as rightly stated by the Appellant’s Counsel, was an eye-witness to the said brutal killing of Alhaji Garba Namuri.
P.W.1’s entire testimony at pages 8 and 9 of the record, reads:
“My names are are Muhammadu Jabbo. I live at Ungurvar Doka Faskari Local Government Area. I am cattle rearer, the accused person (Alh. Mua’zu) is known to me. I also know Alh. Garba Muri.
On the 17th April, 2004 the accused person met us under a tree at Jade (sic) Stream. Others present were; Alh. Garba na Mori (deceased).
When the accused met us Alh. Garba Na Mori said he would not allow the accused to use the “Kwami” (water reservoir for cattle). The accused then said he had requested Alhaji Sani for the use of the Kwami. Alh- Sani is the father of the deceased Alh. Garba. Alh. Garba then asked the accused as follows:
You said you had nothing to do with my property) why then are you asking to use my father ‘s ” Kwami” ?
As we were lying under the tree the accused suddenly hit Alhaji Garba with axe right in the centre of his head. I got hold of the axe and took it from him by twisting his hand and pushed him into the stream. I also got his cap and his wristwatch.
The accused ran to his children, got another axe and rushed back to me. He also said both myself and the deceased were one and the same to him. I brought out my cutlass from its sheath and challenged him to advance. He dashed back to his cattle and I returned to the corpse of the deceased and started crying”.
It is evident in the testimony of P.W.1, that he was the only eyewitness to the said crime of culpable homicide punishable with death. His evidence was, direct and exact as to who killed the deceased. He witnessed every thing done by the Appellant to the deceased, the information was not passed on to him by a third party.
He was present at the time of occurrence of the incident. He even engaged the Appellant, and seized from the Appellant the axe he used in hacking the late Alhaji Garba Namuri, to death. The most important part of P.W.1’s testimony or statement or eye-witness account is that he was lying under a tree with the deceased at the time the squabble between the Appellant and the deceased, over the use of the “kwami” belonging to the father of the deceased, was still on, when suddenly, the appellant hit the deceased with an axe and the deceased died instantly. PW.1 said the Appellant hit the deceased with the axe the centre of his head.
P.W.1 gave a vivid account of what transpired between the Appellant and themselves, particularly, how the Appellant killed the deceased. What is significant in the evidence of P.W.1 is that, he was not, in the least, challenged during cross-examination on those specific allegations of how the Appellant killed the deceased.
That piece of evidence was intact and was not destroyed.
It is settled law that where a single witness called by prosecution is neither an accomplice nor a tainted witness, a Court of law is entitled to convict mainly on his credible evidence where his testimony did not by law require corroboration. Once the Court is satisfied with the cogency, high quality and credibility of the evidence of a witness and accepts it, conviction based on such evidence should not be tampered with unless such evidence by law requires corroboration.
See Oguonzee vs. State (1993) 5 NWLR Part 551 p.521, per Iguh, J.S.C.
After scrutiny of the evidence of P.W.1 vis a vis those of the Appellant and his witnesses who testified as D.W.2 and D.W.3, the learned trial Judge said that “the accused person had sneaked to
where the deceased was lying down and inflicted the fatal blow on his head with the axe after which he tried to do the same to P.W1 if not for P.W.1’s prompt unsheathing of his matchet and facing the accused which the accused found overwhelming and therefore decided to retreat and escape”. This conclusion was arrived at after he had seen, heard and assessed all the witnesses. The law is that to succeed in an appeal against findings of fact made by a trial Court, it must be shown that in the performance of its primary duty of appraisal of oral evidence and ascription of probative values to such evidence, the trial Court made imperfect or improper use of the opportunity of hearing and seeing the witnesses or drew wrong conclusion from acceptable or proved facts to not support or that the findings reached are unsound. See Iko vs. State (2005) 9 NWLR Part 671 pg54.
It must be stressed that nothing was presented by the Appellant that negatived the findings of the trial Court on this point. The unchallenged evidence of P.W.1 is overwhelming against the Appellant. It is clear from his evidence that the Appellant had been identified as the person who hit the deceased with an axe on his skull with such a force that the deceased died instantly. I have no reason to the contrary to disturb the trial Court’s belief that P.W.1 is a witness of truth. The Appellant, as I earlier observed, has not disclosed any special circumstance or reason for one to interfere with the decision of the trial Court, therefore the second ingredient stands established.
On the third ingredient that the act of the accused which caused the death was intentional having the knowledge that death or grievous bodily harm was probable consequence of the act, the learned trial Judge, carefully and correctly said:
“I have looked at Exhibit ‘B’, the axe used in striking Alh. Garba Na Muri and come to the conclusion that it is by all means a very lethal weapon. To apply it in striking somebody on the head will definitely lead to his death. That is the only probable consequence I can think of.
No wonder therefore that Alhaji Garba Na Muri died on the spot at Kadde Stream. The Supreme Court again in the case of MICHEAL V. STATE (Supra) AT P.73 PARAGRAPH C held that:
” Where the deceased died on the spot soon after the injury” inflicted by an accused person, the accused person will be guilty of causing the death. ADAMU V. KANO N. A. (1956) SCNLR 65 AND BAKURI V. STATE (1965) NMLR 163 cited.
All the story given by the accused person and his two additional witnesses in his defence regarding the genesis of his hostility with the deceased may and may not be true. However the underlying issue is the event of the 17th April, 2004 whereby Alh. Garba Na Muri’s life was brutally and mercilessly extinguished.
I disbelieve the story told by the accused as to how (he said) P.W.1 attempted to strike him (accused) with a matchet but missed him and struck the deceased instead.
I believe P.W.1 that the accused person had sneaked to where the deceased was lying down and inflicted the fatal blow on his head with the axe after which he tried to do the same to P.W.1 if not for the latters prompt unsheathing of his matchet and facing the accused which the accused person found overwhelming and therefore decided to retreat and escape”.
The question is, what could have been a better evaluation of the testimonies before the trial Court on this issue than this? It shows the learned trial Judge is a conscientious Judge. Even if Exhibit B the lethal weapon used, was not recovered or that no forensic analysis was carried out on it, it would not have negated the finding of the trial Court as to what the Appellant intended to use of the ate on the deceased’s skull. It is imperative to emphasis, that, in the judgment of the trial Court, it is clear that its consideration of the alleged defence of self-defence or provocation, had no influence of any kind on its finding as to the ingredients of the offence of culpable homicide punishable with death established by the prosecution before it. Nothing was able to topple the eye-witness acount given by P.W.1.Learned Counsel for the appellant tried to disparage the finding of the trial Court by alleging that the defence of alibi raised by the Appellant was not investigated by the police.
This claim completely contradicted the oral evidence tendered by the Appellant at the trial Court as D.W.1, part of which reads:
“As I was trying to give water to my cattle the two people pulled the trough (Kwami) to their side. So I asked who removed the trough? And the two of them surged forward together and said they removed it. They also added that today even if my father went there he would not “water” at the well. I asked them what was wrong? And the two all of a sudden rushed toward me to attack me. I was not holding any weapon except a wet stick.
Alhaji Garba hit me with a stick I shielded my self with the stick I was holding. Then I saw Mamman Jabbo draw his matchet from its sheath (scabbard). I jumped backwards so he missed me but struck Alh. Garba with the matchet. I ran away and Mamman Jabbo chased me. I continued running and did not turn back to look until I had crossed the stream”.
By the above evidence, the Appellant did not raise any question of alibi. He admitted being present but alleged that the deceased had hit with a stick. As I held earlier, P.W.1’s testimony did not require any corroboration in law as it was not one of those classified by law as needing corroboration. There is no obligation on the part of the prosecution to produce a particular witness before the Court, particularly, the actual investigating Police Officer who investigated the crime. Section 149 of the Evidence Act cannot be invoked due to failure to call a particular witness. There was no doubt that existed in this case that would have warranted resolution of the same in the Appellant’s favour. The conjecture by the Appellant’s Counsel that Exhibit A written by P.W.4 was based on hearsay is so frivolous and sounds ridiculous. This is so, because, even with or without medical report, a trial Court can still infer the cause of death provided there is clear and sufficient evidence that death of the deceased was the direct result of the unlawful act of the accused person to the exclusion of all other reasonable possible causes. See Onyia vs. State (2006) 11 NWLR Part 991 pg.267 where it was held that if in a murder case; eye witness accounts bear out an accused person as the killer of the deceased, with a lethal weapon and, where the deceased died on the spot, the offence has patently been proved beyond reasonable doubt and in such a case medical evidence and even the weapon used to perpetuate the heinous act cease to be practical legal necessity.
In this appeal, the findings of the trial Court is overwhelming and not a shred of evidence was adduced by the Appellant to dislodge the eye witness account of P.W.1 . I am satisfied by the findings of the trial Court and, on that note, I find this appeal unmeritorious and, as such, it is bound to be dismissed. Accordingly, this appeal is hereby dismissed by me. The judgment of the trial Court is hereby affirmed by me and the conviction and sentencing of the Applicant are hereby affirmed.
JOSEPH TINE TUR, J.C.A.: Having read the records, the judgment of the learned trial Judge and that of my Lord. Theresa Ngolika Orli-Abadua JCA, I have also come to the conclusion that the evidence that the appellant committed culpable homicide culminating in the death of one Alhaji Garba Namuri on or about the 17th day of April. 2004 at Kadde Wakataba Doka village in Faskari Local Government Area of Katsina State is over-whelming though based principally) on the account of a lone eye witness.
The charge upon which the appellant was arraigned in the lower Court before Ibrahim M. Bako J., of the High Court of Justice, Funtua, Katsina State read as follows:
“THAT YOU ALHAJI MU’AZU of Unguwar Doka village in Faskari Local Government Area of Katsina State on or about the 17th day of April, 2004 at about 1500 hours at Kadde Wakataba Doka village in Faskari Local Government Area of Katsina State caused the death of one Alhaii Garba Namuri, by cutting his head with a axe with the knowledge that death would be the probable consequence of your act; and there by committed an offence of culpable homicide punishable with death under Section 221 of the Penal Code.”
The phrase “cutting his head with an axe…” simply means “hitting his head with an axe…” See the evidence of PW1 under examination in chief.
The appellant pleaded not guilty on 30-04-2005. Hearing commenced on 14-07-2005. The principal eye witness was Mohammadu Jabbo who testified as PW.1. His evidence in Chief is simple, short and brisk hence I shall reproduce his testimony to wit:
“PW1: (M) Muslim, affirm to speak Hausa.
My names are Muhmmadu Jabbo. I live at Unguwar Doka Faskari Local Government Area. I am cattle rarer. The accused person (Alhaji Mu’azu is known to me, I also know Alhaji Garba Muri.
On the 17th April, 2004 the accused person met us under a tree at Jade Stream. Others present were: Alh. Garba Na Mori (deceased). When the accused met us Alh. Garba Na Mori said he would not allow the accused to use the “Kwami” (water reservoir for cattle). The accused then said he had requested Athaii Sani for the use of the Kwami, Alh. Sani is the father of the deceased Alh- Garba.
Alh. Garba then asked the accused as follows: You said you had nothing to do with my property why then are you asking to use my father’s “Kwami”
As we were lying under the tree the accused suddenly hit Alhaji Garba with an are and the latter died instantly. The accused hit Alh. Garba with axe right in the centre of his head. I got hold of the axe and took it from hint by twisting his hand pushed him into the stream. I also got his cap and his wristwatch.
The accused ran to his children, got another one and rushed buck to me. He also said both myself and the deceased were one and the same of him. I brought out my cutlass from its sheath und challenged him to advance. He dashed back to his cattle and I returned to the corpse of the deceased and started crying.”
From PW.1’s evidence in chief the following facts emerged, namely, (1) Pw1 knew the accused before the day of the unfateful event (2) When the appellant came to the tree at Jade Stream he met only Pw1 and Alhaji Garba Na Mori the deceased: no other person was present (3) conversation ensued between the deceased and the accused not in a manner that no reasonable person may say the accused was provoked to anger (4) The accused/Appellant was already armed with an axe for whatever ulterior motive: only the accuse/appellant and the Almighty God will know why; not eyen the devil knows what goes on in the minds of murderers except by their resultant actions (5) The deceased said he would not allow the appellant to use his father’s “Kwami”, namely water reservoir for cattle since the appellant had formerly said he would not have anything to do with it. (6) The deceased had in law and in fact the right to deny the appellant the use of his father’s water reservoir; it is his father’s property. (7) That refusal could not have also provoked any reasonable person to anger. The appellant could have quietly left the scene. The appellant did not, rather, (8) he suddenly struck Alhaji Garba Na Mori (deceased) with an axe on, “the centre of his head” causing instant death. (9) PW1 got hold of the axe pushing the appellant into the stream (10) Rather than showing remorse the appellant ran to his children, got another axe and rushed back to attack PW1 (11) But for the PW1 prowess and alertness in drawing out his cutlass from its sheath the appellant who was advancing towards him, would have struck PW1 would also have met his waterloo that unfateful morning. Learned Counsel asked PW1 only three questions during cross-examination and Pw1 replied thus:
“Cross Examination by Mr. Amah/Accused:
I did not know why the deceased refused to allow the accused to use the Kwami. I was not aware of any animosity between the deceased and the accused.”
The father of the deceased is Alhaji Sani Barume (Pw2). He was at home when he received a message that the accused had killed his son and the corpse was taken to the Hospital. Pw2 visited the scene at Kadde and confirmed the death of his son. He met the Ward Head and one Sani Tifa guarding the corpse. PW2 accompanied the corpse to Fasaki from there to Funtua. Later the corpse was brought back home and buried the next day.
Learned Counsel asked PW1 a few questions.
He got the following reply:
“Cross-Examination by Mr. Amah/Accused:
Yes, I know the cause of the misunderstanding between the deceased and the accused. The accused person was hostile to the deceased. It was because of the “Kwami” water trough used to water our cattle. The water trough belonged to me.
Re-Examination: Nil.”
See page 10 lines 18-22 and page 11 lines 1 of the printed record.
A Superintendent of Police by name Adamu the then Divisional Crime Officer at Faskari led a team of police men to the scene of crime when it was reported b1, one Inspector Amadu Noma, Station officer at Maigora Police outpost at Faskafi Local Government Area. Col. Musa Tukur (Pw3) accompanied the team to the scene of crime from where they received detailed report of what had happened from Inspector Ahmadu Noman. This had been narrated to him by one Ibrahim Na Gaje the ward head of Unguwar Doka. PW3 gave evidence of what happened when they got to the scene of crime as follows:
“We found Alh. Garba lying dead on the ground we took the corpse down to our headquarters in Faskari where Supol Usman Adamu dropped at the station and one Musa Katoii and myself escorted the corpse to the General Hospital Funtua for a post mortem examination. After the autopsy we carried the corpse and handed it over to the realities of the deceased including his father.
The accused person had at the material time escaped on the 18th April, 2004; the accused was arrested and brought to the police station Faskari. We collected the doctor’s post mortem and along with the accused person took it to CID office – Katsina. We also recovered the axe allegedly, used by the accused from Muhammadu Jabbo (PW1) who was present when the whole incident took place. A picture of the corpse was also taken by a photographer at the scene. If I see the post mortem report I shall identify it from the stamp and signature of the DPO Faskari.”
See P.11 lines 16-pages 12 lines 1-9 of the printed record.
Opportunity was given to the learned Counsel to cross-examine Pw3.
Counsel asked and received the following answers from Pw3:
” Cross Examination by Mr. Amah/Accused
We only performed a primary investigation. We did not bother to find out what had happened between the deceased and the accused.
Re-Examination: Nil.”
on 31-05-2006 Imadudden Zakana (Pw4), the Medical officer who performed the post mortem testified. Through him the prosecution tendered without objection the medical report which the Court marked as Exhibit “A”. PW4’s evidence is brisk, direct and positive. I hereby reproduce same to wit:
“PW4: (M), Muslim, affirms to speaks English
My names are Imadudden Zakariya. I work with the General Hospital Funtua as Medial Officer.
I hold a MBBS and Specialist Diploma in O.W.G.
I work in the out patient Department in the morning with impacting review. I also operate and do post-mortem examinations of deceased bodies. I have been practicing for 23 years.
On the 17th April, 2004 I was invited to examine a dead body brought to the hospital and confirm the cause of death. A policeman accompany the corpse said the person had been linked by hitting with an are in the head.
I reviewed the body and performed the post-mortem examination. By physical examination I found a big cut wound on the skull and in culminated fracture of the skull.
There was also a brain injury.
In this case most possible cause of death was the Neutrogena and heamornagic shock which lead to cardio-vascular and respiratory arrest. After performing the examination I handed the report to the police man who accompanied the corpse. If I see the report I should identify it from my handwriting and signature. The owner of the corpse is one Garba.
State Counsel: Is this the report?
PW4: Yes is my handwriting and signature.
Counsel: I seek to tender the medical report in evidence.
Mr. Amah: No objection.
Court: The medical (post-mortem) examination report in respect of Alh. Garba Na Muri is hereby admitted in evidence and marked as exhibit “A”.
State Counsel: Read on the Report.
Court: Yes read it out.
Exhibit “A” read out in Court.
Accused: I understand the exhibit.
Cross-Examination by Accused/Counsel:
Mr. Amah: Nil.
Mal. Gagaji: This is the witness we have for today we intend to call two more. I apply for another date for continuation of hearing.
Court: Case adjourned to 04-07-2006 for continuation of hearing
Sign:
31/05/2006.”
Inspector Yunusa Nusa (PW5) the exhibit keeper tendered the axe alleged to have been used to commit the crime without objection. Pw5 described the axe as “…about 1 ‘bd feet long with a wooden handle.” (See page 20 lines 18 of the printed record).The prosecution closed her case.
From the evidence adduced by the prosecution only Muhammadu Jabbo (PW1) was an eye witness to what happened on the 17th day of April, 2004 that led to the death of Alhaji Garba Na Muri. Pw2-Pw5 were not eye witnesses to the killing. The story of the appellant in the trial Court is as follows:
“DW1: (M), (Accused) Muslim affirmed speaks Hausa.
My names are Alhaji Mu ‘azu Ali. I am 37 years old prior to my arrest and detention I had been rearing animals. On the allegation of the murder of Alh. Garba Na Muri I want to tell this court that the allegation was wrong.
Prior to the incident I had a case before the DPO Alf. Aminu, with Alh. Garba Na Muri Mamman Jabbo. When we went to the DPO the latter ruled in my favour. The caser had to do with an allegation that Ummaru Mai Kiwo was going after the wife of Garba Na Muri. I employed Ummaru nai Kiwo to look after my animals.
Before the DPO the wife of Garba Na Muri (a relation of mine) denied the allegation that mai Kiwo was after her. The allegation was found to be false and so the complaints before the police were punished by the police.
Because of that Garba Na Muri and Mamman Jabbo became hostile to me to the extent that they stopped greeting or talking to me. I therefore decided to fire my cattle rearer and took over looking after the animals personally. I was afraid of what the two might do seeing their disposition towards me.
One day, during the dry season I went to the stream and dug a well to water my animals.
News came to me that Garba Na Muri (deceased) and Mamman Jabbo had been saying that if I had not fired my cattle rearer they would have finished him. I complained to Alh. Hardo Dogo Burti who called all of us together at the house of the ward head. He also invited the village head Alh. Ali. They mediated between us showing that Alh. Garba and Mamman were wrong.
On our return home the two waylaid me at the stream where I had dug the well in the bush on Saturday. I met them. at the well waiting for me. It was my well. I met Mamman Jubbo holding a matchet and an axe while Alh. Garba Na Muri was holding a stick and an axe. I greeted them “Assalamu Alaikum” on my arrival (meaning peace be on you). I repeated again Assulamu Alaikum but they did not answer.
As I was trying to give water to my cattle the two people pulled the trough (Kwami) to their side. So I asked who removed the trough? And the two of them surged forward together and said they removed it. They also added that today even if my father went there he would not “water” at the well.
I asked them what was wrong? And the two all of a sudden toward me to attack me. I was not holding any weapon except a wet stick.
Alh. Garba hit me with a stick I shielded my self with the stick I was holding. Them I saw Mamman Jabbo draw his matchet from its sheath (Scabbard). I jumped backwards, so he missed me but struck Alh. Garba with the matchet. I ran away and Mamman Jabbo chased me. I continued running and did not turn back to look until I had crossed the stream. I went to the house of the ward head Ibrahim Na Gari. He wasn’t at home so I went to his neighbour Ummaru Iya who told me that the ward head had gone to Faskari. I told Ummaru what had happened. He took me on a M/cycle to the house of the village head and I reported to him all that had happened. His name is Alh. Abubakar Machika. He asked me to back the next day because he was tired having just returned from a trip to Katsina.
The following morning a Sunday the village head accompanied me to the Police. others in our company were Abbas Machika, nasiru (village scribe) we went to Faskari Police station. The Police then said I had committed homicide. They beat me.”
The cross-examination by the prosecution stale Counsel was as follows:
“Cross-Examination by Prosecution
Yes late Alh. Garba was marrying my counsin – His wife-whose father is my father’s (younger) brother.
Mamman Jabbo is related to Garba Na Muri (Late).
Alh. Hardo is still alive.
The well is located far away from my house in bush.
The well is located in stream.
There are so many Fulani people near my house and they all have cattle.
Yes, other Fulani people also went to the stream to water their animal. However, each person has well dug by himself.
The name of the person who took me on a M/cycle to the house of the village head is Ummaru Iya.
No the deceased wasn’t killed with an axe.
Yes, I was taken to Faskari police Station.
Yes, we came here first but were referred back to Faskari where they said investigation would hold.
Re-examination: Nil.”
I have highlighted issues upon which learned Counsel to the appellant could have cross-examined the PW1 in order to discredit, impeach, disparage or contradict his evidence. See Section 207-210 of the Evidence Act, 1990. But whether out of experience, caution or inexperience that was not to be. I shall refer Counsel to the case of Mechanical and General Inventions Co. Ltd & Anor vs Austin & The Austin Motor Co., Ltd (1935) All E.R 22 where Lord Handworth M.R. sitting in the English Court of Appeal said at p.27 concerning the power of cross-examination as follows:
“There remains one feature of this case upon which, in association with my colleagues, I desire to make serious comment that is the cross-examination to which the leading actors on either side, Mr- Lehwess and Sir Herbert Austin, were subjected. Measured by the short hand note, it (appears that Mr. Lehvess’s examination occupied eighty Pages and is cross- examination occupied 265. The examination of Sir Herbert Austin occupied thirty-nine pages and his cross- examination 148 pages. There is a tedious iteration in some of the questions asked, and prolonged emphasis is laid on some matters, trivial in relation to the main issues. Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of Counsel in the confidence that it will be used with discretion, not forgetting at the same time the burden that is inposed upon the witness. We desire to say that in our opinion, the cross- examination in the present case did not conform to the above conditions, and at times it failed to display that measure of courtesy to the witness which is by no means inconsistent with a skillful let powerful, cross-examination.”
When the case came on appeal to the House of Lords, Lord Sankey, Lord Chancellor also made the following observations at page 25 paragraph “B-C” of the judgment that:
“The issues were simple, namely, whether the two agreements were made, and, if so were they broken and what were the damages? unfortunately, however, the facts were of a somewhat complicated character, as may be gathered when one considers that the case for the appellant occupied nineteen pages of print and contained seventeen reason why the Court of Appeal was wrong and the case for respondents occupied no less than seventy-seven pages of print and contained thirteen reasons why the Court of Appeal was wrong on certain issues. The transcript of the proceedings before the learned judge occupied nearly 1,000 closely Printed Pages…”
After making the above observations the Lord chancellor concluded at page 27-28 of the judgment as follows:
“…It is right to make due allowance for the irritation Caused by the strain and stress of a long and complicated Case but a protracted and irrelevant cross-examination not only adds to the cost of litigation’ but is a waste of public time. Such a cross-examination becomes indefensible when it is conducted, as it was in this case, without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law. It is not sufficient for the due administration of justice to have a learned, Patient and impartial judge. Equally with him, the Solicitors who prepare the case and the Counsel who present it to the Court are taking Part in the great task of doing justice between man and man.”
Where the defence intends to impeach the credit of a prosecution witness, Counsel is to confront that witness with counter evidence through cross-examination as the witness is testifying in the witness box. See Nwobodo vs Onoh (1981) I SCNLR 1 at 88. It is improper not to cross-examine a witness on material issues but simply wait to call rebuttal evidence after the prosecution has closed her case. Secondly, when evidence called by the prosecution is not discredited or impeached, belief or disbelief of the prosecution witnesses is immaterial since there will be only one person of events that led to the death of the deceased. See Babalola vs The State (1989) 7 SCNJ 127 at 39; Nkwa vs Commissioner of Police NNLR 98 at 103 and Okosi vs The State (1989) 2 SCNJ 183.
Learned Counsel to the appellant has now raised the issue of absence of corroboration of the evidence of PW1 without showing how he was an accomplice. a hostile witness, a person that had an interest to protect a close relation of the deceased. a tainted witness or one who comes within the provisions of Sections 178-179 of the Evidence Act, 1990 which reads as follows:
“178 (1) An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
Provided that in cases tied with a jury when the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular implicating the accused, the Judge shall warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so and in all cases the Court shall so considered to be an accomplice.
(2) Where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused the accused who gives such evidence shall not be considered to be art accomplice.
179(1) Except as provided in this section, no particular number of witnesses shall in any case be required for the proof of any fact.
(2)(a) No person charged with treason or with any of the felonies mentioned in Section 40, 41 and 42 of the Criminal Code cart be convicted, except on his own plea of guilty, or on the evidence in open Court of two witnesses at the least to one overt act of the kind of treason or felony alleged, or the evidence of one witness to overt act and one other witness to another overt act of same kind of treason or felony.
(b) This subsection does not apply to cases in which the overt act of treason alleged is the kitting of the President, or a direct attempt to endanger the life or injure the person of the President.
(3) A person shall not be convicted of committing perjury or of Counseling or procuring the commission of perjury, upon the uncorroborated testimony of one witness, contradicting the oath on which perjure is assigned unless circumstances are proved which corroborate such witness.
(4) A person charged under the Road Traffic Law of a state with driving at a speed greater than the allowed maximum shall trot be convcted solely on the evidence of, one witness that in his opinion he was driving at such speed.
(5) A person shall not be convicted of the offences mentioned in Paragraph (b) of subsection (1) of section 51 or in Section 218, 221, 223, or 224 of the Criminal Code upon the uncorroborated testimony of one witness”.
Learned Counsel cited the case of Ogunbayo vs The State (2007) 5 MJSC 32 where corroboration was defined by the Supreme Court at pages 45-46 as follows:
“Corroboration is not a technical term of art. It means no more than evidence tending to confirm, support and strengthen other evidence sought to be corroborated- Corroboration need not consist of direct evidence that the accused person committed the offence, not need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respects material to the charge. However, evidence in corroboration testimony, direct or circumstantial, which confirm in some material particular, not only that an offence has been committed, but that the accused person has committed it.”
Counsel also referred to Mhambe vs The State (1995) 3 SCNJ 77 where the Supreme Court once again defined corroboration at page 94 as “…a confirmation of a witness’ evidence by on independent testimony. It is evidence which shows or tends to show not merely that the crime has been committed, but that it was committed by the accused.” Counsel again cited the case of Iko vs The State (2001) All FWLR (Pt.68) 1161 where the Supreme Court held at page 1178 that:
“…In all cases where the law provided that corroboration is necessary a conviction of an accused can only be valid when there is such corroborative evidence.”
Sometimes the evidence of an accused and his conduct may provide the necessary corroboration that is required to convict if that is a necessary requirement of the law. See Helwani vs COP 12 WACA 61 where the West African Court of Appeal held at page 63 that:
” …It is established by R. vs Med craft (4) and R. vs Blatherwick (5) that the provisions’ own evidence may afford the necessary corroboration, as may also his conduct in the circumstances of the particular case.”
The fact that on 17-04-2001 the appellant came and met PW1 and the deceased at the tree near the stream and a discussion ensued pertaining to a “Kwami” namely, water reservoir for the use of cattle is not in dispute. The fact that when the appellant struck the deceased on the head he instantly died at the spot was not in dispute. The appellant and PW1 were together when the killing occurred. The appellant made attempt to attack PW1 as well but for God’s intervention. Had the appellant killed PW1, perhaps there would have been no eye witness to tell the story. Dead men do not bear witness in Court. PW2 and PW3 took the corpse to the hospital where post-mortem examination was performed by the medical officer (Pw5); Pw2 is the father of the deceased. Thus Exhibit “A” and “B” were tendered and admitted at the trial without objection. All these pieces of evidence, taken as a whole corroborated the evidence of PW1 if at all corroboration was required in law.
In The Queen vs Omisade & ors (1964) 1 NMLR 67 the Supreme court held per Ademola CJN at Page 77 that:
“In considering whether evidence is corroborative, one must take it as a whole: it will not do say – take this item for instance, it is not corroboration: take this other item, and so forth: one must take all the little items together and consider whether they all add up to corroboration as a whole. Then, again, on the extent of corroboration required, the submissions made to us meant that every part of art accomplice’s evidence had to be corroborated by independent evidence. If that were so, the evidence of the accomplice would not be necessary at all. The position, to our mind, is this; the Judge must ask himself whether or not he believes the evidence of the accomplice and, if he believes the evidence, then he must warn himself that it is unsafe to conviction it alone; he then look for some additional evidence (not that of another accomplice) rendering it probable that the story of the accomplice is true and that it is safe to act upon it – R. vs Baskerville (4). It is, in our view enough if the corroboration which is available supports the truth of the accomplice’s story and implicated the accused. In Basker-ville (supra) at p.667 of the report is the following passage:
“The nature of corroboration will necessarily vary according to the particular circumstances of the offence charged. If would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused-
The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. ”
But that is where a witness is shown to be an accomplice whose evidence needed corroboration. That is not the case on appeal before us. See Ishola v. The State (1978) 9 & 10 sc 81; oje v. The State (1972) 1 All NLR (Pt.2) 385; Joshua v The Queen (1964) 1 All NLR l; Akinlemibola vs commissioner of Police (1976) 6 SC 205; Saidu vs The State (1982) 1 NCR 49; R. v. Essien (1938) 4 WACA 112 at 113; Ali vs The State (1972) 10 SC 87 at 92-93; Arehia v. The State (1983) 1 NCR 146 and Alonge vs Inspector-General of Police (1959) 4 FSC 203 at 204-205.
In culpable homicide cases the presence of motive only strengthens the case presented by the prosecution else it is irrelevant. See Adetola vs Rex (1960) WRNLR 5 at7 and Ishola Vs State (1978) 9-10 sc 81 at 104-106.
Moreover, where there is as in this case, cogent, sufficient and accepted evidence fixing the appellant at the scene of the crime his alibi is demolished. See Njovem vs The State (1973) 5 SC 17 at 65; Esangbedo vs The State (1989) 3 SCNJ 10 and Odidike vs The State (1977) 2 SC 21.
There are authorities showing that conviction can be had even in culpable homicide cases on the evidence of only an eye witness. See Merohotun vs The State (1992) 7 NWLR (Pt.251) 443 at 457; Igbo vs The State (1975) 9-10 SC 129 at 135: Police vs Kwasie 14 WACA 319 and Alonye vs IGP (1959) 1 FSC 203.
His Lordship rejected the fairy tale by the appellant. He was entitled to do so bearing in mind the overwhelming and un-contradicted evidence on record.
Corroboration is not a rule of law but of practice in order to render conviction of an accused person particularly in culpable homicide cases more reliable. See DPP vs Christie (1914-15) All E.R. 63 at 67.
Though various defences were raised at the defence stage, nevertheless, the learned trial Judge considered them as he should but found no substance in any. See Ojo vs The State (1973) 1 NLR (Pt.2) 185.
I am of the firm belief that on the evidence adduced in the Court below which I have read, the learned trial Judge acted correctly when he held at pages 53 lines 11-21 to page -55 lines 1-6 of the printed record that:
“All the story given by the accused person and his two additional witnesses in his defence regarding the genesis of his hostility with the deceased may and may not be true. Howeever, the underlying issue is the event of the 17th April, 2004 whereby Alh. Garba Na Muri’s life was brutally and mercilessly extinguished.
I believe PW1 that the accused person had sneaked to where the deceased was lying down and inflicted the fatal blow on his head with the axe after which he tried to do the same to PW1 if not for the latters prompt unsheathing of his matchet and facing the accused which the accused person found overwhelming and therefore decided to retreat and escape.
Alh. Garba as well as PW1 were definitely taken unawares by the accused person who suddenly struck the former.
Eventually the accused had mentioned some people said to have accompanied him to Faskari Police Station to lodge a complaint, people like Abbas Machika, Nasiru and Abubakar Machika, he called none of them to testify and support his assertion.
He also did not call one Hardo Dogo Buti whom he said he have gone to complain to. In fact under cross-examination the accused as DW1 confirmed that the said Hardo was still alive. The accused also failed to call the village head or his neighbour (Ummaru Iya whom he said he had lodged his complaint with when he did not meet the village head, Abubakar Machika at home. Ummaru Iya he had said had taken him on a motor cycle to the village head whom they found to have just returned from a trip to Katsina very tired and unable to go to Faskari that evening.
DW2 and DW3 called by the accused person in addition to his own testimony only gave evidence of certain events that had taken place before the 17th April, 2004 when Alh. Garba was killed.
Their testimony had no relation whatsoever with the present case.
They relate to some instances in the past when the late Alh. Garba had some misunderstanding with the accused person over his farm crops which the accused person cattle were suspected to have destroyed. Those complaints were however according to the witness investigated and decided against the late Alh. Garba by the Ward Head and also by the police.
in some way those events would only establish a real motive behind the killing of Alhaji Garba by the accused person at it reveals that there had been blood between them and that the accused had been nursing some grudges and ill feelings against the deceased. However, as I have already observed those testimonies were silent on the happening of 17th April, 2004 at Kadde Stream when the accused person struck Alh. Garba with an axe on the head thereby causing his death.
Finally, I am of the opinion that the prosecution has established all the ingredients of the offence of culpable homicide punishable under section 221 of the panel Code against the accused person and I hereby convict you of the offence as charged.”
The above findings are amply supported by the evidence on record.
This appeal lacks merit and is dismissed. I also affirm the judgment, conviction and sentence of the appellant by the learned trial Judge.
OBANDE OGBUINYA, J.C.A.: I had the privilege of reading, in advance, the leading judgment delivered by my learned brother, T.N Orji-Abadua, JCA. and I align myself with her reasons and conclusions.
For the sake of emphasis, let me place on record that the evidence of eye witness, which the lower court capitalised on in convicting the appellant, is one of the most dependable ways of proving criminal offences, inclusive of this offence, culpable homicide punishable with death. It is only evidence of confession or admission of commission of crime that is preferred to it in the hierarchy of potency of evidence in our criminal justice system. see Nbang v. State (2010) 7 NWLR (pt. 1194)131. I agree in toto with the lower court that the evidence of PW1, an eye witness account, was credible and sufficient to establish the second ingredient of that foul crime of culpable homicide punishable with death.
On the third ingredient of this heinous offence, I am of the humble view that the appellant intended the natural consequences of his act when he used a very unfriendly and lethal weapon, an axe, to snuff life out of the unsuspecting and hapless deceased.
The defence of alibi, mentioned in the appellant’s issue five, is not on hand to him, the appellant, in the circumstances of this case. The reason is not far fetched. PW1 gave uncontroverted eye witness testimony of how the appellant sent the deceased to his early grave in his presence. Even by the appellant’s ipse dixit, he was at the locus criminis on that fateful day, 17/04/2004. Flowing from the unchallenged evidence of PW1, the appellant was at the scene of the crime. In the law, the defence of alibi, meaning, “somewhere else”, when erected by any accused person, loses steam when he is fixed, like in this case, at the scene of the crime, see Sunday V. State (2010)18 NWLR (pt. 1221)223; Olaiya v. State (2010) 3 NWLR (pt.1181) 123.
It is for these reasons, and other reasons adduced in the leading judgment, that I too hold that there is no merit in the appeal. I dismiss it. I abide by the orders made in the leading Judgment.
Appearances
Chief U. A. MbukoFor Appellant
AND
Ahmed Aliyu, Esq; State Counsel,
M.O.J. Katsina StateFor Respondent
