BADAMASI v. STATE
(2022)LCN/16031(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Monday, July 25, 2022
CA/K/242/C/2017
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
SALISU BADAMASI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE BURDEN PLACED ON THE PROSECUTION TO PROVE THE GUILT OF AN ACCUSED PERSON
It is elementary that in every criminal proceeding the prosecution bears the unshifting and onerous duty of proving the guilt of an accused person in order to dislodge the presumption of innocence constitutionally guaranteed by Section 36(5) of the CFRN 1999 (as amended). By Section 135 (1) of the Evidence Act 2011(as amended), such proof must be beyond reasonable doubt. See STATE V GWANGWAN (SUPRA), AJAYI V STATE (2014) ALL FWLR (PT 711) 1457, WOOLMINGTON V. D.P.P. (1935) AC 462, NJOKU V. THE STATE (1993) 6 NWLR (Pt. 299) 272 AT 285, ANI V STATE (2003) 11 NWLR (Pt. 830) PG. 142. Therefore, the duty it is of the prosecution to present credible evidence to prove the guilt of the Appellant and that no other person but the Appellant committed the offences charged. To do this, it must prove each and every ingredient of the said offence beyond reasonable doubt. The accused/Appellant has no corresponding duty to prove his innocence. See OKOH V STATE (2014) 8 NWLR (PT. 1410) 502, AJAYI V THE STATE (2013) 9 NWLR (PT. 1360) 589 -PER AMINA AUDI WAMBAI, J.C.A.
CONSEQUENCE OF FAILURE TO PROVE THE INGREDIENTS OF AN OFFENCE BEYOND REASONABLE DOUBT
Failure to prove any of the ingredients beyond reasonable doubt means failure to prove the entire case, GALADIMA VS THE STATE (2017) LPELR 41909 (SC). Similarly, where at the end of assessment of the prosecution’s case there is any lingering doubt, the doubt must be resolved in favour of the accused. See STATE V. DANJUMA (1997) 5 NWLR (Pt. 809)1 AT 35-36, ABDULLAHI V. STATE (2008) 17 NWLR (Pt… -PER AMINA AUDI WAMBAI, J.C.A.
MEANING OF PROOF BEYOND REASONABLE DOUBT
However, proof beyond reasonable doubt is not proof beyond all shadows of doubt or to the hilt. It only means the presence of evidence which leaves only a remote possibility in favour of the accused which can easily be dismissed by the phrase “of course it is possible, but not in the least probable”. See ITODO V. STATE (2020) 1 NWLR (Pt. 1704) 1, MILLER V. MINISTER OF PENSIONS (1947) ALL ER 373 -PER AMINA AUDI WAMBAI, J.C.A.
INGREDIENTS WHICH THE PROSECUTION MUST PROVE TO ESTABLISH THE CASE OF CULPABLE HOMICIDE
The ingredients which the prosecution must prove beyond reasonable doubt to establish its case of culpable homicide punishable with death against the Appellant are: –
(a) That the death of a human being took place;
(b) That such death was caused by the accused;
(c) That the act of the accused that caused the death was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.
All these ingredients must be proved conjunctively before the prosecution can secure a conviction. See JIMMY V STATE (2014) ALL FWLR (PT 714) 103, ANEKWE V STATE (2014) ALL FWLR (PT 744)92, ADAVA V. STATE (2006) 9 NWLR (PT. 981), PG. 152, AKPA V. STATE (2007) 2 NWLR (PT. 1019), PG. 500, UWAGBOE V. STATE (2007) 6 NWLR (PT. 1031), PG. 606. -PER AMINA AUDI WAMBAI, J.C.A.
WAYS IN WHICH THE INGREDIENTS OF AN OFFENCE CAN BE PROVED IN COURT
In order to establish these ingredients of the offence the prosecution may rely on any or combination of the following ways of proof:
(a) By testimonies of witnesses who watched, heard or witnessed the commission of the crime by the accused person;
(b) Through confessional statement voluntarily made by the accused;
(c) Through circumstantial evidence, which clearly points to the sole fact that the accused and no other person committed the offence charged. -PER AMINA AUDI WAMBAI, J.C.A.
WHEN EVIDENCE CAN BE SAID TO BE CONTRADICTORY IN NATURE
Evidence is said to be contradictory when it asserts or affirms the direct opposite of the other but not necessarily when it contains some minor inconsistencies. See ZAKIRAI V. MUHAMMAD & ORS (2017) 17 NWLR (Pt. 1594) 181, ODUNLAMI V. NIG. ARMY (2013) LPELR – 20701 (SC), and contradictions are said to be material when they are substantial and fundamental to the main issues in contention before the Court or go to the root of the charge against the accused person. See ADONIKE V. STATE (2015) LPELR – 24281 (SC).
EFFECT OF MATERIAL CONTRADICTIONS ON THE PROSECUTION’S CASE
Furthermore, material contradictions have fatal effect on the prosecution’s case only when they touch on the substance or main ingredients of the offence and remain unexplained by the prosecution to the extent that they cast serious doubt on the case presented as a whole or specifically on the guilt of the accused person. See MUSA V. STATE (2009) LPELR – 1930 (SC), OGUN V. AKINYELU (2004) 18 NWLR (Pt. 905) 362, AFOLALU V. STATE (2009) 3 NWLR (Pt. 1127) 160, SANI V. STATE (SUPRA) In YAKUBU V. JAUROYEL & ORS (2014) 11 NWLR (Pt. 1318) 205. The Supreme aptly stated the law thus: –
“The law is that it is not all contradictions in the evidence proffered and relied upon by a party in proof of its case that results in the rejection of the evidence. It is only material discrepancies which constitute substantial disparagement of the witnesses concerned, in the sense that reliance on their testimony will likely result in miscarriage of justice that should impact negatively on the case of the party who relies on such evidence. Thus contradictions in the evidence of witnesses may not be fatal to a case especially when they are minor and do not materially affect the fundamental and crucial issues in the case. Contradictions are fatal only if, not being minor, they go to the substance of the case. And what is material and substantial remains a question of fact. See Nathaniel Nasamu V. State (1979) 6-7 SC 112 and Usiobaifo & anor V. Usiobaifo and anor (2005) 1 SCM 193.” -PER AMINA AUDI WAMBAI, J.C.A.
THE COURT’S DUTY WHERE CONTRADICTIONS ARE ALLEGED TO EXIST IN THE EVIDENCE OF WITNESSES FOR THE PROSECUTION IN A CRIMINAL TRIAL
Thus, the Courts have consistently maintained that it is not every inconsistency, contradiction that should vitiate a decision. What is paramount where contradictions are alleged to exist in the evidence of witnesses for the prosecution in a criminal trial is for the Court to consider whether the witnesses are in unison as to the happening of the event though the witnesses give different version of the peripheral surrounding of the event or different name of the same person or place understood by all to mean the same person or place, or one or more of the witnesses give more details than the others, depending on their perspectives name. See OBOSI V. STATE (2015) 12 NWLR (Pt. 1473) 213. -PER AMINA AUDI WAMBAI, J.C.A.
WHERE THERE IS A MISTAKE AS TO THE NAME OF A PARTY
It is settled law that mistake as to the name of a party is a misnormer where the correct person is in Court but given a wrong name. See ISHAQ V. BELLO (2008) LPELR – 4337, AGIP (NIG.) PLC V. OSSAI (2018) LPELR 44712 (CA) and also REGTD TRUSTEES OF ACTS OF APOSTLES CHURCH V. FATUNDE (SUPRA) cited by the learned Respondent’s Counsel.
This principle extends to criminal matters where as in the case at hand the mistake was only in the name of the Appellant (who was in Court throughout the trial) but not on his identity. -PER AMINA AUDI WAMBAI, J.C.A.
INADMISSIBILITY OF HEARSAY EVIDENCE
It is settled law generally, that hearsay evidence is inadmissible to prove any fact or matter. See Section 38 of the Evidence Act, 2011, BUHARI V. OBASANJO AND ORS (2005) 13 NWLR (Pt. 941) 1, KASA V. STATE (1994) 5 NWLR (Pt. 344) 269. See also ZUBAIRU V. THE STATE (SUPR) cited by the Appellant’s Counsel. It therefore has no probative value to establish the truth of the fact it alleges. -PER AMINA AUDI WAMBAI, J.C.A.
WHERE RECOURSE CAN BE MADE TO CIRCUMSTANTIAL EVIDENCE
In IGHO V. STATE (1978) LPELR – 1453 (SC) ESO JSC held that when a person is charged with the murder of another recourse may be had to circumstantial evidence and this includes any evidence that tends to connect that person with the probable cause of death. If the facts advanced by the prosecution leaves only one inference that it is the accused and no other person is responsible for the death of the deceased, the Court may convict on such circumstantial evidence … -PER AMINA AUDI WAMBAI, J.C.A.
CIRCUMSTANCES WHERE AN APPELLANT’S ORAL EVIDENCE CONTRADICTS HIS CONFESSIONAL STATEMENT
The implication is that some evidence outside the confession no matter how slight is required to base a conviction on the retracted confession if so proved, and the Court will be entitled to disregard the oral evidence of the appellant in Court which contradicts his confessional statement. See AKPAN V. THE STATE (2000) 12 NWLR (Pt. 682) page 692, EMOGA V. THE STATE (1997) 7 SCNJ 518 at 529 -PER AMINA AUDI WAMBAI, J.C.A.
WAYS OF PROVING MENS REA FOR OFFENCES
It is trite that the mens rea of such offences as culpable homicide punishable with death is seldom proved by direct evidence. The usual way of proving the mens rea for such offences is by inference from the action of the accused, the lethal nature of the weapon used in committing the offence, the force applied and the part of the body injured among others. See STATE V. USMAN (2005) 1 NWLR (Pt. 906) 80 at 130 ALI V. STATE (2015) 10 NWLR (Pt. 1466) 1 at 27.
In OWHORUKE V. COP (2015) 15 NWLR (Pt. 1483) 557 at 581 C – D, the Supreme Court held that intent to kill or cause grievous harm can be inferred from the nature of the weapon used. A man stabbed another on the neck region with a bottle is deemed to have intended to kill him or cause grievous bodily harm. -PER AMINA AUDI WAMBAI, J.C.A.
THE POSITION OF LAW AS REGARDS TO NONE PRODUCTION OF MEDICAL REPORT
On the none production of the medical report, it has since been the settled position of law that medical report is not a sine quo non for the determination of the cause of death where as in the instant case the death occur instantaneously or nearly so. Where the victim attacked with a lethal weapon dies instantaneously or soon thereafter, the cause of death can properly be inferred that the wound inflicted by the assailant caused the death, and the need for medical evidence ceases to be of any practical or legal necessity. See BEN V. STATE (2006) 16 NWLR (Pt. 1006) 582 at 601, PARA A – B.
The deceased in the instant case died shortly after the infliction of the injury on his abdominal region, on the way to the hospital. There was no need for the production of the medical report as the injury inflicted on him is from which he died instantaneously is deemed to be the cause of death. -PER AMINA AUDI WAMBAI, J.C.A.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Kastina State High Court in charge No. KTH/25C/2011 delivered on 21st March, 2013 by Hon. Justice Abdullahi Yusuf Hon. Chief Judge (as he then was) which convicted the Appellant (as the 1st accused) of the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code and sentenced him to death by hanging.
The Appellant was alleged on the charge sheet to have on or about the 3rd day of April, 2020 stabbed one Musa Tambai with a knife with the knowledge that death would be the probable consequence of his act and thereby committed the offence punishable under Section 221 of the Penal Code.
Both the Appellant and his co-accused Malam Umaru Alias Boka Umaru charged for instigation of culpable homicide under Section 86 of the Penal Code, pleaded not guilty to the charge. The matter proceeded to trial with the prosecution (Respondent) calling eight (8) witnesses and tendering some exhibits. The Appellant testified in his defence but tendered no exhibit nor called any other witness. The 2nd accused also testified in his defence but called no other witness nor tender any exhibit. Counsel on both sides filed their written addresses. Upon reviewing the evidence and considering the written addresses of Counsel, the learned trial judge found that the prosecution proved its case beyond reasonable doubt against the Appellant and accordingly found him guilty as charged. He however discharged and acquitted the 2nd accused for failure of the prosecution to prove the case against him.
Aggrieved with the conviction and sentence the Appellant was granted extension of time on the 2nd November, 2016 to appeal the decision. He was further granted leave on 16th May, 2022 to amend his Notice of Appeal. The amended Notice of appeal filed on 14th March, 2022 but deemed on 16/5/2022 contains 3 grounds of appeal.
From the 3 grounds of appeal Anozie Obinnaya Obi Esq., mni who settled the amended Appellant’s brief of argument filed on 4/3/2022 but deemed properly filed on 16/5/2022 raised a sole issue for determination to wit:
“Whether from the totality and quality of the evidence adduced in this case, the trial Court was right when it held that the prosecution has succeeded in proving its case beyond reasonable doubt.” (Grounds 1 and 2).
The Respondent’s amended brief of argument was settled by B.F. Abdullahi Esq, Assistant Director, Ministry of Justice, Katsina State. It was filed on 20/6/2022 but deemed properly filed on 21/6/2022. In it, the Appellant’s issue for determination was adopted but modified to read thus:
Whether the prosecution has proved the offence of culpable homicide punishable with death under Section 221 of the Penal Code beyond reasonable doubt to support the conviction and sentence of the Appellant by the trial Court.
I will adopt the issue as formulated by the learned Appellant’s Counsel in the determination of this appeal which is.
“Whether from the totality and quality of the evidence adduced in this case, the trial Court was right when it held that the prosecution has succeeded in proving its case beyond reasonable doubt.” (Grounds 1 and 2).
APPELLANT’S SUBMISSION
Arguing the issue and restating the elementary principle of law in Criminal trial that the burden of proving the guilt of an accused person is always on the prosecution by proving each and every ingredient of the offence conjunctively beyond reasonable doubt to warrant or secure the conviction of an accused person, calling in aid Section 139 of the Evidence Act and the case of STATE V. GWANGWAN (2015) ALL FWLR (Pt. 801) 1470 among others, and contending that the Respondent failed to do so, learned Counsel listed the ingredients of the offence of culpable homicide punishable with death which the prosecution must prove to succeed but failed to do so, namely;
(a) That the deceased had died;
(b) That the death resulted from the act of the accused; and
(c) That the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
He submitted on the 1st ingredient referring to the evidence of PW1, PW2, PW4 and PW5 that the name of the deceased allegedly killed by the Appellant as stated by the witnesses being different from the name on the charge sheet, Musa Tambai and with no attempt to relate the name of the deceased person in the charge to the name given by the witnesses, the prosecution thus failed to prove the death of the actual person allegedly killed in the context of the charge and the conviction cannot stand, citing the cases of AKINLEMIBOLA V. COMMISSIONER OF POLICE (1979) ALL NLR 349, 359, RAYMOND NWOKEDI V. COMMISSIONER OF POLICE (1972) ALL NLR 11 at 14 – 15 GAMBO GARBA V. THE SATE (2011) 14 NWLR (Pt. 1266) 98 at 121 – 122 and IBRAHIM V. THE STATE (2015) 11 NWLR (Pt. 1469) 164 at 197 B – E.
On the 2nd ingredient, it was submitted that apart from the unresolved material contradictory evidence of PW1 vis a vis those of PW2, PW4 and PW5 as to whether it was Sale or Salisu who killed the deceased which the Court cannot speculate on an imagined explanation, EKANEM V. STATE (2010) ALL FWLR (Pt. 539) 1142 at 1163 PARA C, the evidence of the prosecution witnesses are all hearsay. That PW1 stated he was at home and was informed that Sale killed Musa, while PW2 testified that he was at his working place and heard shout that the accused “has killed me”, that PW4 also stated he was in his farm when he heard the accused shouting. That PW5 also testified that he was passing when he heard the deceased shouting and he did not stop. All the pieces of evidence, he argued are not cogent and direct and cannot ground the conviction of the Appellant as hearsay evidence is inadmissible in law, citing Section 38 of the Evidence Act and the case of ZUBAIRU V. STATE (2015) 16 NWLR (Pt. 1486) 504 at 524 – 526 G – D, but that the learned trial judge relied on the said evidence in holding that the prosecution proved the 2nd ingredient, a finding which Counsel insisted is perverse, urging us to interfere to set same aside citing the case of STATE V. AJAYI (2016) 14 NWLR (Pt. 1532) 196, 235 C – E.
On the 3rd ingredient, it was Counsel’s submission that the prosecution failed to prove the intention on the part of the Appellant or that the Appellant knew or had reason to know that death would be the probable consequence of any bodily harm which the injury was intended to cause, that in the absence of any direct evidence that it was the Appellant who killed the deceased, it was necessary for the prosecution to produce the medical report to show how and where the deceased was stabbed more so the evidence is contradictory as to whether it was on the chest or the abdomen that the deceased was stabbed, thus, according to him, the none production of the medical report is fatal to the prosecution’s case. That the refusal of the prosecution to tender the medical report which PW6 stated he collected calls for invocation of Section 167 (d) of the Evidence Act and that they failed to prove the cause of death, ZUBAIRU V. STATE (SUPRA).
Further, that intention or knowledge cannot be constructive or presumed, there must be a finding in respect of same by the Court, thus, the inference drawn by the lower Court on page 71 of the record, he argued, is erroneous.
Similarly, he submitted that it was necessary for PW5 to identify the knife (Exhibit C) allegedly recovered from the Appellant by PW1 as kept by PW8 (Exhibit keeper) especially as PW8 stated in cross-examination that he is in doubt as to who owns the knife.
Learned Counsel contended that the Appellant having vehemently in his evidence in the Court denied committing the alleged offence, the Court ought to have considered thoroughly the defence put up by the Appellant rather than brushing it aside no matter how foolish, stupid or unreasonable it may appear to be, citing the case of NGUMA V. ATTORNEY GENERAL IMO STATE (2014) 7 NWLR (Pt. 1405) 119, 146 at 147 B – E.
That the failure of the lower Court to evaluate the evidence greatly occasioned a miscarriage of justice to the Appellant for he would have come to a different decision if he had done so, urging us to resolve the issue in favour of the Appellant and set aside the decision of the trial Court to discharge and acquit the Appellant.
RESPONDENT’S SUBMISSION
Responding and conceding that the burden of proving the guilt of an accused person rests squarely on the prosecution which it can discharge either by the confessional statement of the accused; circumstantial evidence or evidence of an eye witness EMEKA V. STATE (2001) 14 NWLR (Pt. 734) 666 at 683, learned Counsel submitted that the prosecution proved all the ingredients of the offence beyond reasonable doubt through the evidence of PW1, PW2, PW4 and PW5 as well as the confessional statements of the Appellant.
Learned Counsel argued that the circumstantial evidence of the prosecution witnesses which is strong, cogent and irresistibly points only to one conclusion that the Appellant was the person who stabbed the deceased with a knife resulting in his death is sufficient in law to sustain his conviction. See ONA V. STATE (1985) 12 SC 59, OMOGODO V. STATE (1985) 5 SC 5 at 24. He referred to the evidence of PW1 at page 24 of the record, PW2 at page 25, PW4 and PW5 at page 26 of the record which he argued was not impeached by the Appellant and was corroborated by the Appellant’s confessional statements, Exhibits A and A1 and B and B1 wherein the Appellant stated how and why he stabbed the deceased.
He pointed out that confessional statement such as Exhibits A and A1 and B and B1 which are positive and unequivocal are sufficient to ground a conviction notwithstanding their retraction by the Appellant citing the cases of OKANLAWON V. THE STATE (2015) 17 NWLR (Pt. 1489) 445 at 478, ALARAPE V. STATE (2001) 5 NWLR (Pt. 705) 75 at 98 E – G, HASSAN V. STATE (2001) 15 NWLR (Pt. 735) 184 at 198 A – D, as a confession is the best evidence in criminal trial. MOHAMMED V. THE STATE (2014) 12 NWLR (Pt. 1421) 387.
On the nature of the required corroboration, he cited the cases of EDHIGERE V. THE STATE (1998) 8 NWLR (Pt. 464) 1 and DURUGO V. STATE (1992) 7 NWLR (Pt. 255) 525 at 541 to submit that it is any undependent evidence that effects the accused but not necessarily direct evidence that links the accused to the commission of the offence.
He submitted further that where an accused person makes a statement to Police and in his evidence in Court states something to the contrary, the Court will be right to hold that his evidence in Court is unreliable. MBENU V. STATE (1988) 7 SC (Pt. 111) 71 at 82 EDOKO V. THE STATE (2015) 9 NWLR (Pt. 1465) 454 at 488 D – E.
On the Appellant’s submission that the name of the deceased in the charge sheet does not tally with the name given by the witnesses, learned Respondent’s Counsel submitted that it is of no moment for while the charge sheet contains the full name of the deceased the prosecution witnesses referred to him only by his first name, Musa, which is a practice world over, moreover, the Appellant was not misled, thereby distinguishing the cases cited by the Appellant’s Counsel with the case at hand.
On the name of the Appellant being Sale as stated by PW1 or Salisu as stated by PW2, PW4 and PW5, it was submitted that sale is just the short form of Salisu but assuming it is not, a mistake as to the name of a party is a mere misnomer where the correct person is in the Court but given a wrong name R.T. OF A. CHURCH V. FATUNDE (2016) 11 NWLR (Pt. 1523) 211 at 227 – 228 B – C more so that PW1 clearly identified the Appellant in Court as the Sale from whom he got the knife.
He thus submitted that there is no contradiction in the evidence of the prosecution witness, and assuming any inconsistency exists, it is insignificant that it cannot be fatal to the prosecution’s case, not touching on the substance of the ingredients of the offence. See SANI V. STATE (2014) 1 NWLR (Pt. 1387) 1 at 24, OCHANI V. STATE (2017) 18 NWLR (Pt. 1596) 51 at 32.
He also countered the Appellant’s submission that the evidence elicited from the prosecution witnesses are hearsay. He referred to the confessional statements to submit that the Appellant himself confessed to stabbing the deceased on the stomach as corroborated by PW2, PW1 and PW4 and PW5.
On the none production of the medical report, he submitted relying on BEN V. STATE (2006) 16 NWLR (Pt. 1006) 582 at 601, that it is not in every case that a medical report must be tendered.
On the question of intention, he cited the case of AWETO V. FEDERAL REPUBLIC OF NIGERIA (2018) 8 NWLR (Pt. 1622) 527 at 541 among others to argue that intention to kill in homicide or murder cases can manifest from the nature of the instrument used by the accused person, the type of wound inflected etc. citing STATE V. USMAN (2005) 1 NWLR (Pt. 906) 80 at 130.
On the contention by Appellant’s Counsel that identification of Exhibit C (the knife) was necessary since the Appellant denied committing the offence, it was submitted that failure to tender the knife is not fatal, moreover Appellant did not show how he was prejudiced by the none production. ACHUKU V. STATE (2015) 6 NWLR (Pt. 1456) 425, 459.
It was submitted that the lower Court properly evaluated the evidence before arriving at its conclusion and that a reasonable doubt that will justify an acquittal is doubt based on reason arising from the evidence or lack of it and not on fanciful doubt citing JUA V. STATE (2010) 10 NWLR (Pt. 1184) 217 at 371 B – F among others urging us to resolve the issue in favour of the Respondent against the Appellant to dismiss the appeal and affirm the judgment of the lower Court.
RESOLUTION OF APPEAL
It is elementary that in every criminal proceeding the prosecution bears the unshifting and onerous duty of proving the guilt of an accused person in order to dislodge the presumption of innocence constitutionally guaranteed by Section 36(5) of the CFRN 1999 (as amended). By Section 135 (1) of the Evidence Act 2011(as amended), such proof must be beyond reasonable doubt. See STATE V GWANGWAN (SUPRA), AJAYI V STATE (2014) ALL FWLR (PT 711) 1457, WOOLMINGTON V. D.P.P. (1935) AC 462, NJOKU V. THE STATE (1993) 6 NWLR (Pt. 299) 272 AT 285, ANI V STATE (2003) 11 NWLR (Pt. 830) PG. 142. Therefore, the duty it is of the prosecution to present credible evidence to prove the guilt of the Appellant and that no other person but the Appellant committed the offences charged. To do this, it must prove each and every ingredient of the said offence beyond reasonable doubt. The accused/Appellant has no corresponding duty to prove his innocence. See OKOH V STATE (2014) 8 NWLR (PT. 1410) 502, AJAYI V THE STATE (2013) 9 NWLR (PT. 1360) 589.
Failure to prove any of the ingredients beyond reasonable doubt means failure to prove the entire case, GALADIMA VS THE STATE (2017) LPELR 41909 (SC). Similarly, where at the end of assessment of the prosecution’s case there is any lingering doubt, the doubt must be resolved in favour of the accused. See STATE V. DANJUMA (1997) 5 NWLR (Pt. 809)1 AT 35-36, ABDULLAHI V. STATE (2008) 17 NWLR
However, proof beyond reasonable doubt is not proof beyond all shadows of doubt or to the hilt. It only means the presence of evidence which leaves only a remote possibility in favour of the accused which can easily be dismissed by the phrase “of course it is possible, but not in the least probable”. See ITODO V. STATE (2020) 1 NWLR (Pt. 1704) 1, MILLER V. MINISTER OF PENSIONS (1947) ALL ER 373.
Now, the Appellant was charged with and convicted for the offence of culpable homicide punishable with death under Section 221 of the Penal Code.
The ingredients which the prosecution must prove beyond reasonable doubt to establish its case of culpable homicide punishable with death against the Appellant are: –
(a) That the death of a human being took place;
(b) That such death was caused by the accused;
(c) That the act of the accused that caused the death was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.
All these ingredients must be proved conjunctively before the prosecution can secure a conviction. See JIMMY V STATE (2014) ALL FWLR (PT 714) 103, ANEKWE V STATE (2014) ALL FWLR (PT 744)92, ADAVA V. STATE (2006) 9 NWLR (PT. 981), PG. 152, AKPA V. STATE (2007) 2 NWLR (PT. 1019), PG. 500, UWAGBOE V. STATE (2007) 6 NWLR (PT. 1031), PG. 606.
In order to establish these ingredients of the offence the prosecution may rely on any or combination of the following ways of proof:
(a) By testimonies of witnesses who watched, heard or witnessed the commission of the crime by the accused person;
(b) Through confessional statement voluntarily made by the accused;
(c) Through circumstantial evidence, which clearly points to the sole fact that the accused and no other person committed the offence charged.
In the instant case, the prosecution relied on circumstantial evidence and the confessional statements of the Appellant.
On the first ingredient that a human being died and, in this case, Musa Tambai stated on the charge sheet alleged to have been killed, the Appellant’s Counsel contended that the Respondent did not prove that the actual person named in the charge sheet died in that the prosecution witnesses only referred to the deceased as “Musa” simplicitier. I find this argument in the context of the evidence on record factually lame and legally impotent. I say so because there is no doubt and the Appellant was not misled as to the person who was alleged to have been killed. Notwithstanding that the charge sheet gave his full name as Musa Tambai and the witnesses choose to refer to him only by his first name “Musa”, the deceased either as “Musa” simpliciter, “Musa Tambai” or with the appellation “M” Musa was one and the same person. The identity of the deceased is not in doubt nor can the Appellant be said to have been misled on the identity of the person being referred to by the prosecution witness as “Musa”. As rightly submitted by the learned Respondent’s Counsel, all the plethora of cases cited by the learned Appellant’s Counsel are inapplicable to the facts of this case. The evidence given by the prosecution is not outside but is within the charge. The evidence of the prosecution witnesses that Musa died and in of PW1 that they sought permission of the Police to be allowed to bury him (Musa) remain unchallenged. Therefore, that ingredient of the offence was duly established by the prosecution.
The second ingredient is that the Appellant caused the death of the deceased or that the death of the deceased resulted from the act of the Appellant. On this ingredient also, it is the contention of the learned Counsel for the Appellant that there exists a material unexplained contradiction in the evidence of the prosecution witnesses as to the name of the person who allegedly killed the deceased. That while PW1 referred to the alleged killer as “Sale”, PWs2, 4 and 5 named the alleged killer as “Salisu” and the Court is being precluded from choosing and picking between the two.
It is correct as submitted that while PW1 referred to the alleged killer of Musa as Sale, all other witnesses refer to him as “Salisu”. PW1 stated inter alia.
“I was informed that Sale killed Musa.”
Again, the pertinent question is whether the contradiction is material creating a doubt as to the actual person alleged to have killed the deceased. The ready answer is found in the unquoted portion of the evidence of the same PW1. Immediately following the penultimate portion quoted by the Appellant’s Counsel, the witness stated: –
“I ran to the place but I meet Sale, the 1st accused. I got the knife from him I apprehended him and took him to the Police and they detained him …”
Clearly, the seeming contradiction was explained by the evidence of the same self PW1 that the “Sale” was the Appellant who he met and from whom he got the knife. Though called “Sale” the person meant and so referred by the PW1 was the accused/Appellant. It cannot therefore be correctly argued that by merely stating the name of the Appellant as “Sale” the evidence of PW1 materially contradicts with those of PW2, 4 and 5. Undoubtedly, the same person, the accused/Appellant, is one and the same person being referred to by all the prosecution witnesses.
Evidence is said to be contradictory when it asserts or affirms the direct opposite of the other but not necessarily when it contains some minor inconsistencies. See ZAKIRAI V. MUHAMMAD & ORS (2017) 17 NWLR (Pt. 1594) 181, ODUNLAMI V. NIG. ARMY (2013) LPELR – 20701 (SC), and contradictions are said to be material when they are substantial and fundamental to the main issues in contention before the Court or go to the root of the charge against the accused person. See ADONIKE V. STATE (2015) LPELR – 24281 (SC).
Furthermore, material contradictions have fatal effect on the prosecution’s case only when they touch on the substance or main ingredients of the offence and remain unexplained by the prosecution to the extent that they cast serious doubt on the case presented as a whole or specifically on the guilt of the accused person. See MUSA V. STATE (2009) LPELR – 1930 (SC), OGUN V. AKINYELU (2004) 18 NWLR (Pt. 905) 362, AFOLALU V. STATE (2009) 3 NWLR (Pt. 1127) 160, SANI V. STATE (SUPRA) In YAKUBU V. JAUROYEL & ORS (2014) 11 NWLR (Pt. 1318) 205. The Supreme aptly stated the law thus: –
“The law is that it is not all contradictions in the evidence proffered and relied upon by a party in proof of its case that results in the rejection of the evidence. It is only material discrepancies which constitute substantial disparagement of the witnesses concerned, in the sense that reliance on their testimony will likely result in miscarriage of justice that should impact negatively on the case of the party who relies on such evidence. Thus contradictions in the evidence of witnesses may not be fatal to a case especially when they are minor and do not materially affect the fundamental and crucial issues in the case. Contradictions are fatal only if, not being minor, they go to the substance of the case. And what is material and substantial remains a question of fact. See Nathaniel Nasamu V. State (1979) 6-7 SC 112 and Usiobaifo & anor V. Usiobaifo and anor (2005) 1 SCM 193.”
Thus, the Courts have consistently maintained that it is not every inconsistency, contradiction that should vitiate a decision. What is paramount where contradictions are alleged to exist in the evidence of witnesses for the prosecution in a criminal trial is for the Court to consider whether the witnesses are in unison as to the happening of the event though the witnesses give different version of the peripheral surrounding of the event or different name of the same person or place understood by all to mean the same person or place, or one or more of the witnesses give more details than the others, depending on their perspectives name. See OBOSI V. STATE (2015) 12 NWLR (Pt. 1473) 213.
Furthermore, assuming “Sale” is not the short name for Salisu as argued by the Respondent’s Counsel, it is settled law that mistake as to the name of a party is a misnormer where the correct person is in Court but given a wrong name. See ISHAQ V. BELLO (2008) LPELR – 4337, AGIP (NIG.) PLC V. OSSAI (2018) LPELR 44712 (CA) and also REGTD TRUSTEES OF ACTS OF APOSTLES CHURCH V. FATUNDE (SUPRA) cited by the learned Respondent’s Counsel.
This principle extends to criminal matters where as in the case at hand the mistake was only in the name of the Appellant (who was in Court throughout the trial) but not on his identity.
Learned Counsel for the Appellant also argued that the evidence of the prosecution witnesses are hearsay evidence and accused the learned trial judge of relying on same to convict the Appellant. It is settled law generally, that hearsay evidence is inadmissible to prove any fact or matter. See Section 38 of the Evidence Act, 2011, BUHARI V. OBASANJO AND ORS (2005) 13 NWLR (Pt. 941) 1, KASA V. STATE (1994) 5 NWLR (Pt. 344) 269. See also ZUBAIRU V. THE STATE (SUPR) cited by the Appellant’s Counsel. It therefore has no probative value to establish the truth of the fact it alleges.
Let us now examine the evidence of the prosecution witnesses tagged or garbed with the toga of hearsay evidence. The evidence referred to as hearsay are those of PW1, PW2, PW4 and PW5.
I shall take the pains to reproduce the relevant part of their evidence.
PW1 maiunguwa Isiyaku testified inter alia:
“On the 3rd of April, 2010, I was at home I was informed that Sale killed Musa. I ran to the place but I met Sale, the 1st accused I got the knife from him I apprehended him and took him to the Police and they detained him, we beg them to allow us to go and bury Musa. That is all I know.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The evidence of PW2 Sani Adamu is that:
On the 3rd of April, 2010, it was a Saturday we were working. Salisu came back then I heard a shout that Salisu has killed me. M. Musa is now dead. He asked me to hold his chest. He was crying saying oh God Salisu has killed him. I held his chest and people gathered and he was taken to the Hospital and before he reached there he died.
On his part PW4 Sani Ali testified that.
On the 3rd of April, 2010, I was coming back from naming ceremony on Saturday, I was in my farm near their house, then I heard M. Musa shouting the have killed me. We were standing with someone I ran I met M. Musa in pool of blood by the time I reached him he fell down. I then asked for help by shouting for help. I ran to a car seeking for assistance. We put him in a car, before we reached Bindawa he fainted by the time we reached Bindawa he died near Charanchi Hospital.
In cross-examination he stated thus:
PW4: Yes, I was in my farm when I hear the deceased shouting. Yes I will not know, I only met him in a pool of blood I did not see him with the deceased.
For PW5, Danjuma Yau he testified that:
On 3rd of April, 2010, I was about to pass, I heard oh God Salisu has killed me. I did not stop but I went and informed the ward Head. It was M. Musa the deceased was the one who shouted that he was killed by Salisu. I turned and ran to the ward Head Maiunguwa Isiya of Danmakwani and told him to go and arrest Salisu because he has killed Musa. That is all I know.
The evidence of PW1 as reproduced above is a narration of what he did and saw. That he went to the place, met Sale the accused, got the knife from him, apprehended him and took him to the Police Station where he was detained. This cannot amount to hearsay evidence. It is evidence of what he saw and did. Hearsay evidence is testimony given by a witness who relates not what he knows personally or saw but what others have said the credibility of which depends not on the witness but on another person. Thus, evidence of a witness is said to be hearsay when the evidence given by the witness relates not to what the witness did, knows or saw with his eyes, if the purpose is to prove the truth of what is asserted. See MARIAM MOHAMMED V. A.G.F FRN (2020) LPELR – 52526 (SC), FRN V. USMAN (2012) LPELR 7818 (SC).
That is not the case with the evidence of PWI. His evidence relates to what he saw and what he did and to that extent that portion of his evidence is far from being hearsay and contrary to the submission of the Appellant’s Counsel cannot be tagged hearsay evidence.
Similarly, the evidence of PW2 to the extent that he testified that he heard a shout that “Salisu has killed me”, and that the deceased M. Musa was crying saying “oh God Salisu has killed me” and he (PW2) held the chest of the deceased and was among those who were taking the deceased to the Hospital but the deceased died before reaching the Hospital, cannot wear the toga of hearsay evidence. It is direct evidence of what he heard and did. The same applies to the evidence of PW4 who also heard the deceased shouting “they have killed me” and by the time he reached the deceased, the deceased had fallen down. The witness arranged for a car to take the deceased to the hospital but he died near the Charanchi Hospital. Equally, the portion of the evidence of PW5 that he also heard the shout of M. Musa (the deceased) when he was passing that “Salisu has killed me” cannot be classified as hearsay evidence.
Agreed, as submitted for the Appellant there is no direct evidence to the killing of the deceased. None of the witnesses saw the actual killing of the deceased but that does not render their evidence hearsay on the aspect of what they personally saw and heard directly from the deceased or of the facts and circumstances surrounding the event. Their evidence fall within the classification of circumstantial evidence one of the 3 ways by which the guilt of an accused person can be proved provided the evidence proves the case with the accuracy of mathematics and points only to one and only irresistible conclusion that the accused was the one responsible for the offence. See ONAH V. STATE (1985) 3 NWLR (Pt. 12) 236 SC. In other words, the number of circumstances must make a complete unbroken chain of evidence and satisfy the Court that the accused person committed the offence. In IGHO V. STATE (1978) LPELR – 1453 (SC) ESO JSC held that when a person is charged with the murder of another recourse may be had to circumstantial evidence and this includes any evidence that tends to connect that person with the probable cause of death. If the facts advanced by the prosecution leaves only one inference that it is the accused and no other person is responsible for the death of the deceased, the Court may convict on such circumstantial evidence …
In the case at hand, the aggregate of the circumstantial evidence flowing from the evidence of PW1, PW2, PW4 and PW5 is that on the fateful day 3rd April, 2010, PW2, Sani Adamu, on Appellant’s request called out M. Musa (the deceased) for the Appellant (Salisu) and went back to his place of work (See page 25 lines 1 – 3 of the record). Thereafter, all the four prosecution witnesses heard M. Musa (the deceased) shouting saying “Salisu has killed me”. PW1 ran to the place and collected the knife from the Appellant, apprehended him. While crying that Salisu had killed him, PW2 held his chest and people gathered there. By the time PW4 reached the scene he met the deceased in pool of blood and had fallen down. They were on their way to the hospital with the deceased when he gave up.
These closely linked and uncontroverted circumstantial evidence I dare say lead only to one irresistible conclusion that it was the Appellant who stabbed the deceased with the knife collected from him by PW1 which resulted in the death of the deceased shortly after, and even before reaching the hospital. The lower Court rightly found at pages 70 – 71 that there was no break in the chain of the events of what happened up to the death of the deceased and concluded rightly too that “the accused will definitely be the one to be held responsible for the said death…”
Furthermore, the prosecution also relied on the confessional statements of the Appellant. It is noted that the Appellant retracted the statements and departed from their contents in his evidence in Court. The implication is that some evidence outside the confession no matter how slight is required to base a conviction on the retracted confession if so proved, and the Court will be entitled to disregard the oral evidence of the appellant in Court which contradicts his confessional statement. See AKPAN V. THE STATE (2000) 12 NWLR (Pt. 682) page 692, EMOGA V. THE STATE (1997) 7 SCNJ 518 at 529.
Now, the Appellant stated in Exhibit A1 that one of his daughters fell ill and when her condition became critical, he decided to take her to one Boka Umaru at Kashin village who confirmed to him that it was one Musa Usman (the deceased) who caused her sickness through witchcraft and before he left the village, his daughter died. He continued:
“After we reached home, I just carried knife and went to Musa Usman home, but I send (sic) one boy by name Sani Adamu to call Musa for me. When he came out, I just used my knife and stabbed him on his stomach. And he sustained serious injury on his stomach. Then he ran back with blood calling the name of his brother Sani to come and assisted (sic) him. …”
Essentially the same thing was repeated in Exhibit B1. The contents of Exhibits A1 & B1 no doubt are fully corroborated by the evidence of PW1, PW2, PW4 & PW5 whose evidence the confession affirms. Exhibit A1 & B1 confirm the evidence of PW1, SANI ADAMU, that it was him that the Appellant sent to call the deceased for him. The confessional statement also confirm the testimonies of the prosecution witnesses that the deceased was stabbed with a knife and that PW1, Maiunguwan Isiyaku, collected the knife from the Appellant as stated in Exhibits A1 & B1.
The lower Court was thus right in holding that the prosecution proved the 2nd ingredient of the offence.
On the 3rd ingredient of the offence, it is trite that the mens rea of such offences as culpable homicide punishable with death is seldom proved by direct evidence. The usual way of proving the mens rea for such offences is by inference from the action of the accused, the lethal nature of the weapon used in committing the offence, the force applied and the part of the body injured among others. See STATE V. USMAN (2005) 1 NWLR (Pt. 906) 80 at 130 ALI V. STATE (2015) 10 NWLR (Pt. 1466) 1 at 27.
In OWHORUKE V. COP (2015) 15 NWLR (Pt. 1483) 557 at 581 C – D, the Supreme Court held that intent to kill or cause grievous harm can be inferred from the nature of the weapon used. A man stabbed another on the neck region with a bottle is deemed to have intended to kill him or cause grievous bodily harm.
Similarly in the case at hand a man who stabbed another with a knife on the abdominal or chest region must be deemed to have intended to kill him or cause him grievous bodily harm. It follows that the argument of the Appellant’s Counsel to the contrary is of no moment and is discountenanced.
On the none production of the medical report, it has since been the settled position of law that medical report is not a sine quo non for the determination of the cause of death where as in the instant case the death occur instantaneously or nearly so. Where the victim attacked with a lethal weapon dies instantaneously or soon thereafter, the cause of death can properly be inferred that the wound inflicted by the assailant caused the death, and the need for medical evidence ceases to be of any practical or legal necessity. See BEN V. STATE (2006) 16 NWLR (Pt. 1006) 582 at 601, PARA A – B.
The deceased in the instant case died shortly after the infliction of the injury on his abdominal region, on the way to the hospital. There was no need for the production of the medical report as the injury inflicted on him is from which he died instantaneously is deemed to be the cause of death. The lower Court was therefore right to have so found.
On the whole, all said and done, we cannot, on the evidence on record but agree with the lower Court that the prosecution proved the charge beyond reasonable doubt against the Appellant. The testimonies of the prosecution witnesses together with the Appellant’s confessional statement envelop the Appellant in the commission of the offence. We therefore resolve the sole issue against the Appellant and in favour of the Respondent.
The appeal therefore lacks merit and is entitled to be and is hereby dismissed by me.
The judgment of the lower Court delivered by Hon. Justice Abdullahi Yusuf (Hon. Chief Judge) as he then was, on 21/3/2013 is hereby affirmed.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother, A. A. Wambai, JCA. I agree with and adopt the finding and conclusion reached by learned brother in the leading judgment that this appeal is bereft of merit. I also dismiss same and affirm the decision of the lower Court delivered on 21/3/2013 in Charge No. KTH/25C/2011.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Amina Audi Wambi, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
Anozie Obinnaya Obi, Esq, For Appellant(s)
B.F. Abdullahi, Esq, Assistant Director, Ministry of Justice, Katsina State. For Respondent(s)