ALIYU v. STATE (2022)

ALIYU v. STATE

(2022)LCN/16195(CA)

In the Court of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, March 10, 2022

CA/S/137C/2019

Before Our Lordships:

Frederick Oziakpono Oho Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Between

ABUBAKAR ALIYU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE ELEMENTS OF THE OFFENCE OF CULPABLE HOMICIDE

The three elements of the offence of Culpable Homicide under which the appellant was charged and convicted are:
1. The death of a human being has occurred.
2. The death of the deceased was caused by the accused and
3. The act was done with the intention of causing death or that the accused knew or had reason to know that death will be the probable and not only the likely consequence of his act.
The settled position of the law is that the prosecution has the duty or burden to prove each of these three elements beyond reasonable doubt. Both parties are in agreement as to the first and third elements. There is no dispute that the death of a human being has occurred. Neither is there a dispute that the matcheting of the deceased’s head was done with the intention of causing death or that the accused knew or had reason to know that death will be the probable and not only the likely consequence of his act. The point of disagreement is the second element; this is whether the death of the deceased was caused by the act of the appellant. This then remains the only live issue in this appeal. I refuse to be distracted therefore by the unnecessary submissions of the respondent’s counsel as to whether the appellant has conceded to the first and third elements of the offence since as I observe, they are not live issues in this appeal. The question that begs for an answer in the instant appeal is whether the prosecution established beyond reasonable doubt the causation between the conduct of the accused person and the injury that killed the deceased. In other words, was there an intervening link between the act of the appellant and the cause of death so as not to make the act of the appellant the proximate or direct cause of death requiring the resolution of such doubt in favour of the appellant. PER MAHMOUD, J.C.A

THE POSITION OF LAW ON ESTABLISHING THE CAUSAL LINK BETWEEN THE DEATH OF A PERSON AND THE ACT

In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where the cause of death is ascertained, the next step in the enquiry is to link the cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence: OFORLETE V STATE (2000) 12 NWLR, PT 681, 415; UDOSEN V STATE (2007) 4 NWLR, PT 1023, 125 and ALAO V STATE (2015 17 NWLR, PT 1488, 245.

Cause of death can be proved by direct or circumstantial evidence. It can also be inferred where the person injured or attacked died immediately: UGURU V STATE (2002) 9 NWLR, PT 771, 90; ZUBAIRU V STATE (2015) 16 NWLR, PT 1486, 504. PER MAHMOUD, J.C.A

THE PRINCIPLE OF CAUSATION

The defence under cross examination of PW2 in particular alluded to the possibility of the drugs administered on the deceased being expired and therefore responsible for the death of the deceased. Assuming this were so, Karibi-Whyte, JSC, in the case of UYO V AG BENDEL STATE (SUPRA) settled this issue when he held thus:
“It is well settled that even where the medical treatment results in the death of the deceased, a conviction for murder will lie except the deceased died from other cause – see R V Abengowe (supra), R V Jordan (Supra) …”
The Court also held that “the important consideration for determining responsibility is whether death of the deceased was caused by injuries he sustained through the act from the medical point of view, death was caused by such injuries. See also R V EFFONGA (1969) 1 ALL NLR, 339.”
Also see the cases …
It follows therefore that the principle of causation dictates that an event is caused by the act proximate to it and in the absence of which the event would not have happened. Applying these to the facts and circumstances of the instant case, as it follows that the proximate cause of the death of the deceased was the matched cuts on his head. The evidence does not disclose any intervening factor or event as a possible cause of death that would warrant the benefit of doubt being resolved in favour of the appellant. Absence of medical report or medical evidence is not fatal in the circumstances of this case.
I uphold the submission of the Respondent’s counsel that the case of FOLORUNSO V STATE (2020) 15 NWLR, PT 1746, 33 AT 35 in that case the victim who had been shot twice by the appellant was in and out of three hospitals, had three surgeries and it took seven weeks between the shooting and the death in hospital of the victim. That was a very unfortunate and unnecessary death by a police officer who got away with only a twenty-five sentence for manslaughter due to the negligence of the prosecution to lead medical evidence to prove cause of death. That case is poles apart from the instant case whether the evidence is unassailable that the deceased died from the matched wounds inflicted on him by the appellant. This appeal presents a classic example of instances where medical evidence is not essential as laid down in UGURU V STATE (SUPRA) and a host of other authorities. PER MAHMOUD, J.C.A

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The Appellant, Abubakar Aliyu was charged and tried for culpable homicide punishable with death contrary to Section 221 of the Penal Code before the Sokoto State High Court sitting at Sokoto and presided over by Justice M. S. Sifawa.

The case of the prosecution at the lower Court was that the accused person fought with one Ibrahim Abdullahi, PW1 and younger brother to the deceased over “pure water”. PW1 had in the course of the fight injured the accused but one Civil Defence Officer gave the accused some money for treatment. Nonetheless, the accused went to the house of the deceased on the 22nd May, 2013 and met the deceased, Adamu Abdullahi, younger brother of PW1 and demanded more money from him for treatment. The deceased resisted this demand on the grounds that he was not the one who injured the accused. The accused then engaged the deceased in a fight and matcheted him on his head which made him sustain serious injuries that made him unconscious. The deceased was rushed to the Sokoto Teaching Hospital where he died on admission two days later on the 24th May, 2013.

In proof of its case, the prosecution called three witnesses and tendered six exhibits marked as Exhibits A, A1, B, B1, B2, and B3 respectively. The accused/appellant in his defence testified in his own defence and called no other witness.

At the conclusion of trial, the learned trial Judge found the appellant guilty as charged and sentenced him to death.
It is against this judgment that the appellant by a Notice of Appeal dated and filed on the 3rd August, 2017 appealed to this Court on the omnibus ground of appeal. The Appeal was however argued on the Amended Notice of Appeal filed on the 22nd February, 2021 and deemed properly filed and served on the 23rd September, 2021 containing three grounds with their particulars as follows:
1. That the decision of the trial Court is unwarranted and cannot be supported having regard to the evidence adduced at the trial.
2. The learned trial Judge erred in law when he convicted the Accused person of the crime of culpable homicide punishable with death when there was no evidence placed before the Court showing that it was the Accused person’s conduct that was the immediate cause of the death of the deceased person.
PARTICULARS:
A. There was no evidence of causation between the alleged conduct of the Accused person and the death of the deceased person.
B. The Prosecution did not prove its case beyond reasonable doubt.
C. There was no Medical Report placed before the Court to establish the cause of death of the deceased person and there was no testimony of a Medical Doctor or any Medical Personnel offered to establish the cause of death of the deceased person.
3. The learned trial Judge erred in law when he held that:
“A Court is reasonably permitted to properly infer the circumstances surrounding the death of the deceased that the death of the deceased was caused by the act of the accused without any other evidence.
See Ibo v State (1971) NWLR (sic) 145, ISMAIL V STATE (2008) 32 WRN 126 at 160.
In the circumstances, it is therefore reasonable to infer that the death of Adamu Abdullahi was caused by the injuries he sustained by the act of hitting him on the head with a cutlass by the accused person. The prosecution has therefore proved this element of the offence of culpable homicide and I so hold”. Page 68 Lines 7 – 15.
PARTICULARS
A. The learned trial Judge misunderstood and misapplied the decisions in the cases cited.
B. The learned trial judge in fact did the opposite of what the Supreme Court decided. “

In prosecuting the appeal, the appellant filed their brief on the 22nd February, 2021 which was deemed properly filed and served on the 23rd September, 2021. The appellant also filed a reply brief on the 5th October, 2021.
The Respondent on its part filed its brief on the 27th September, 2021.

In arguing this appeal, MR. Oluwole Afolabi of counsel for the Appellant adopted the brief and the reply brief as their legal arguments in support of the appeal. In the brief, counsel distilled a sole issue from the three grounds of appeal for determination of the Court thus:
“Whether the Court below was right in coming to the conclusion it reached, that the Respondent proved its case against the Appellant beyond reasonable doubt (Grounds 1, 2 & 3 of the amended Notice of Appeal).”

In his submission on this sole issue, counsel focused on the failure of the prosecution to present medical evidence as to the cause of death. Counsel submitted that failure to make inquiries as to the cause of death of the deceased who died forty-eight (48) hours after admission in the hospital amounts to failure to ascertain the cause of death, which failure is fatal. Counsel submitted that once there is a broken link in the claim of causation, that broken link must be resolved in favour of the appellant. Counsel urged the Court to resolve the sole issue in favour of the Appellant, set aside the decision of the trial Court and discharge and acquit the appellant.

In opposing the appeal, Mr. Abdulfatai Oyedele of counsel for the respondent adopted their brief as his legal arguments in opposition to the appeal. In it, counsel also formulated a sole issue for determination of Court thus:
“whether the trial Court was right in holding that the eye witness account and confessional statement (exhibits A & A1) irresistibly linked the appellant to the commission of the offence of Culpable Homicide punishable with death? (Distilled from grounds 1, 2, & 3 of the Amended Notice of Appeal)”.

The crux of counsel’s arguments in support of this sole issue as I understand it is that the appellant’s quarrel with the judgment of the Court is as to failure of the persecution to prove one out of the three elements of culpable homicide punishable with death, i.e. causation of the death of the deceased by the act of the accused person. Counsel submitted that the trial Judge rightly found Exhibits A and A1 the retracted confessional statement as sufficient evidence to link the act of the accused to the offence, the death of the deceased. That this evidence is corroborated by the testimonies of PW1, PW2 and PW3, all eye witnesses to the commission of the offence. Counsel, on lack of medical evidence of death submitted that medical evidence is not a sine qua non to prove death in homicide offences. He contended that where medical evidence as to cause of death is either not produced or is not available the Court may infer such cause of death from the circumstantial evidence adduced provided such evidence is positively and irresistibly consistent with no other natural conclusion that the deceased is dead and that his death was caused by the act of the accused person. Counsel urged the Court to dismiss the appeal and affirm the decision of the trial Court.

The three elements of the offence of Culpable Homicide under which the appellant was charged and convicted are:
1. The death of a human being has occurred.
2. The death of the deceased was caused by the accused and
3. The act was done with the intention of causing death or that the accused knew or had reason to know that death will be the probable and not only the likely consequence of his act.
The settled position of the law is that the prosecution has the duty or burden to prove each of these three elements beyond reasonable doubt. Both parties are in agreement as to the first and third elements. There is no dispute that the death of a human being has occurred. Neither is there a dispute that the matcheting of the deceased’s head was done with the intention of causing death or that the accused knew or had reason to know that death will be the probable and not only the likely consequence of his act. The point of disagreement is the second element; this is whether the death of the deceased was caused by the act of the appellant. This then remains the only live issue in this appeal. I refuse to be distracted therefore by the unnecessary submissions of the respondent’s counsel as to whether the appellant has conceded to the first and third elements of the offence since as I observe, they are not live issues in this appeal. The question that begs for an answer in the instant appeal is whether the prosecution established beyond reasonable doubt the causation between the conduct of the accused person and the injury that killed the deceased. In other words, was there an intervening link between the act of the appellant and the cause of death so as not to make the act of the appellant the proximate or direct cause of death requiring the resolution of such doubt in favour of the appellant.

In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where the cause of death is ascertained, the next step in the enquiry is to link the cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence: OFORLETE V STATE (2000) 12 NWLR, PT 681, 415; UDOSEN V STATE (2007) 4 NWLR, PT 1023, 125 and ALAO V STATE (2015 17 NWLR, PT 1488, 245.

Cause of death can be proved by direct or circumstantial evidence. It can also be inferred where the person injured or attacked died immediately: UGURU V STATE (2002) 9 NWLR, PT 771, 90; ZUBAIRU V STATE (2015) 16 NWLR, PT 1486, 504.

The clear evidence led by the prosecution through PW1, PW2 and PW3 is that the accused/appellant met the deceased in front of the deceased’s house and requested him to add more money for him to settle his medical bill arising from a fight he had with PW1 (brother of the deceased) about two weeks earlier on the sole ground that the deceased and PW1 being brothers were one and the same person. The deceased refused to yield to such warped logic and asked the accused to meet PW1 to settle him. The accused/appellant was dissatisfied with this response and fighting ensued. PW2 who was present separated the fight and the accused went away. The accused returned to the deceased’s house shortly thereafter but this time with a cutlass and two of his friends and met the deceased in front of their house. The accused used the cutlass to hit the deceased on the head. Exhibits B, B1, B2 and B3 tendered by the prosecution are photographs of the deceased showing the serious cuts on the upper part of his head. The deceased was rushed first to the Sokoto Specialist hospital on the same day this incident occurred, 22nd May 2013. The hospital rejected him as according to PW2 under cross examination “because blood was rushing from the wound.” The deceased was then rushed to the Usman Dan Fodio University Teaching Hospital and admitted the same day. He died barely forty-eight (48) hours later on the 24th May, 2013. PW2, a brother to the deceased was an eye witness to the matchet attack on the deceased by the accused/appellant. He affirmed this position further in cross examination when he stated categorically that he was present when the accused/appellant hit his deceased brother with a matchet on the head. This constitutes direct/eye witness evidence.

As I pointed out earlier in this judgment, the only live issue in this appeal is the chain of causation. The well settled principle of law is that in order to hold an accused person criminally liable for culpable homicide punishable with death the chain of causation must not be broken. Once the chain of causation is broken, that broken link in the chain must be resolved in favour of the accused. Does the evidence in this case show a possible break in the chain of causation between the matcheting of the deceased’s head, his being rushed to the hospital on the 22nd May, 2013 and his demise on the 24th May, 2013.

I have considered the submissions of both counsel very soberly. I have also taken into consideration the findings of the trial Court. I support his finding that in the circumstances of this case he was perfectly within the law to infer the cause of death. I further hold that the absence of medical evidence as to cause of death is not fatal in the circumstances of this case. This position is fortified by the Supreme Court in the case of UYO V AG BENDEL STATE (1986) 1 NWLR, PT 17, 418, where it held that where the victim dies in circumstances in which there is abundant evidence of the manner of death, medical evidence can be dispensed with. In the instant case the uncontroverted evidence of PW1, PW2 and PW3 show beyond reasonable doubt that the deceased died as a result of the gruesome attack on him by the appellant. The defence under cross examination of PW2 in particular alluded to the possibility of the drugs administered on the deceased being expired and therefore responsible for the death of the deceased. Assuming this were so, Karibi-Whyte, JSC, in the case of UYO V AG BENDEL STATE (SUPRA) settled this issue when he held thus:
“It is well settled that even where the medical treatment results in the death of the deceased, a conviction for murder will lie except the deceased died from other cause – see R V Abengowe (supra), R V Jordan (Supra) …”
The Court also held that “the important consideration for determining responsibility is whether death of the deceased was caused by injuries he sustained through the act from the medical point of view, death was caused by such injuries. See also R V EFFONGA (1969) 1 ALL NLR, 339.”
Also see the cases …
It follows therefore that the principle of causation dictates that an event is caused by the act proximate to it and in the absence of which the event would not have happened. Applying these to the facts and circumstances of the instant case, as it follows that the proximate cause of the death of the deceased was the matched cuts on his head. The evidence does not disclose any intervening factor or event as a possible cause of death that would warrant the benefit of doubt being resolved in favour of the appellant. Absence of medical report or medical evidence is not fatal in the circumstances of this case.
I uphold the submission of the Respondent’s counsel that the case of FOLORUNSO V STATE (2020) 15 NWLR, PT 1746, 33 AT 35 in that case the victim who had been shot twice by the appellant was in and out of three hospitals, had three surgeries and it took seven weeks between the shooting and the death in hospital of the victim. That was a very unfortunate and unnecessary death by a police officer who got away with only a twenty-five sentence for manslaughter due to the negligence of the prosecution to lead medical evidence to prove cause of death. That case is poles apart from the instant case whether the evidence is unassailable that the deceased died from the matched wounds inflicted on him by the appellant. This appeal presents a classic example of instances where medical evidence is not essential as laid down in UGURU V STATE (SUPRA) and a host of other authorities.

In the instant case, I find that the circumstances present an ideal ground from which the trial Court can infer cause of death. His Lordship in the Court below was rightly guided by the decision of the Apex Court in IBO V STATE (1971) NMLR, 145 when he held that:
“In the circumstances, it is therefore reasonable to infer that the death of Adamu Abdullahi was caused by injuries he sustained by the act of hitting him on the head with cutlass by the accused person. The prosecution has therefore proved this element of the offence of culpable homicide and I so hold.”

Indeed, to upturn the judgment of the lower Court would be a real deflection of the course of justice. Here is a man who without provocation takes a matchet and attacks the deceased on his head giving him serious cuts which lead to his death less than 48 hours later. There is no plea or evidence led in support of any defence(s) open to him except to come on appeal and plead failure of medical evidence of the cause of death. This is especially so as he made Exhibits A and A1, the confessional statement where he owned up to stabbing the deceased on his head with a cutlass where he fell down. Although the appellant retracted this confession, his lordship dealt with the attendant issues to a retracted confessional statement so astutely that I am left with nothing to add. I see no legal or other justification to disturb the findings of the trial Court. Consequently, I find this appeal bereft of merit. I dismiss it. The judgment of Justice M. S. Sifawa delivered on the 5th June, 2017 convicting and sentencing the appellant for culpable homicide punishable under Section 221 (b) of the Penal Code is hereby affirmed.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, PATRICIA AJUMA MAHMOUD, JCA and I am in agreement with the reasoning and conclusions in dismissing this Appeal as unmeritorious. I subscribe to the consequential orders made thereto in the lead judgment.

MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother PATRICIA AJUMA MAHMOUD JCA. I agree with the reasons therein for the conclusion that the appeal is bereft of merit and should be dismissed.

I hereby dismiss the appeal and adopt the consequential orders made in the lead judgment.