BILAL BABA ATTAH v. THE STATE
(2019)LCN/13718(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of July, 2019
CA/S/20C/2018
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
BILAL BABA ATTAH Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
It is a well settled principle in our adversary adjudicatory system of criminal jurisprudence that the burden of proof always lies on the prosecution. This is founded on the immutable & irrefutable presumption of innocence of an accused person constitutionally provided by Section 36 (5) of the 1999 constitution F.R.N (as amended). It provides:
?every person who is charged with criminal offence shall be presumed innocent until proved guilty,?
Thus the prosecution bears the heavy and unshifting burden of proving the guilt of an accused person beyond reasonable doubt and with no corresponding duty on the accused to prove his innocence. ASAKE VS THE NIG. ARMY COUNCIL & ANR (2007) 1 NWLR [PT 1015] 408, OGIDI VS THE STATE (2005) 5 NWLR [PT 0918] 286.
The only duty placed on an accused person is a benign one, to cast a doubt on the case of prosecution or to discredit the prosecution?s case to make it unreliable or unsafe for a reasonable Court or tribunal to convict upon same.
Therefore, for the prosecution to dislodge the presumption of innocence against an accused person, it must prove each and every element of the offence beyond reasonable doubt. See ADIGUN VS AG OF OYO STATE (1987)1 NWLR [PT 53] 678, ANEKWE VS THE STATE (1976) 8-19 SC 255.
It must however be stated that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt or proof to the hilt. If the law were to place such an almost impossible standard of proof, then as observed in MILER VS MINISTER OF PENSION (1947)2 ALL E.R P.372, the law would fail to protect the community if it admits fanciful possibilities to deflect the cause of justice. The proof beyond reasonable doubt simply means exactly what it says. It is proof beyond reasonable doubt and not proof beyond unreasonable doubt, fanciful possibilities or shadow of doubt. It means what is says, it does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency consistent with an equally high degree of probability. See MUFTAU BAKARE VS STATE (SUPRA) also reported as (1987)1 NSCC 26 @ 272. PER WAMBAI, J.C.A.
INGREDIENTS FOR PROVING THE OFFENCE OF CAUSING GRIEVOUS BODILY HURT
For the prosecution to succeed in proving the offence of causing grievous bodily hurt under Section 248, it must prove the following ingredients beyond reasonable doubt:
(a) That the accused caused by his act bodily pain, disease or infirmity to the complainant.
(b) That he did so intentionally or with the knowledge that the act would cause hurt, etc.
(c) That the act was unprovoked.
(d) That the accused caused the bodily harm etc., by means of an instrument for shooting stabbing or cutting or by an instrument which is used as weapon is likely, to cause death: or by means of fire, etc., or by means of any poison etc., or by means of any substance which itself is deleterious to the human body to inhale etc., or by means of any animal.
These ingredients can be proved by any or a combination of all of the following ways: – namely
(a) Confessional statement of the accused/Appellant.
(b) Evidence of an eye witness or
(c) Circumstantial evidence.
See IGABELE VS STATE(2006)6 NWLR [PT 975]100, IGBIKIS VS STATE (2017) LPELR-4166 (SC), HARUNA VS ATTORNEY GENERAL OF FED. (2012) LPERL ? 7821 (SC). PER WAMBAI, J.C.A.
WHEN A PIECE OF EVIDENCE IS SAID TO CONTRADICT THE OTHER
A piece of evidence is said to contradict the other when it asserts the exact opposite of what the other asserts and not when there are minor discrepancies between the two See GABRIEL VS STATE (1989)12 SCNJ 33, NWACHAKWU VS ONWUWAINE (2011) ALL FWLR (PT 589) 1044.
The law appreciates and accepts the fact that human faculty may miss some minor details mostly due to lapse of time. Errors may occur and sometimes are bound to occur in the order of sequence of narration of events, time or even locations, or on minute details. See SELE VS. STATE (1993). This is normal for if two or more witnesses are to give account of an incident that occurred in the past word for word or with exactitude with each other, that would be viewed with suspicion. Thus, depending on each person?s astuteness and capacity for observing and storing details, one piece of evidence may fall short of or contains a little more details than the other. such discrepancies or inconsistencies not touching on the substance of the case are not considered as contradictions.
Two pieces of evidence are said to contradict each other when they are by themselves inconsistent and assert the opposite of the other. Thus, while contradiction goes to the essentiality of something being or not being, a discrepancy depends on the person?s astuteness and capacity to observe details.
?Even at that, it is not every contradiction in the evidence of witnesses that can be treated as material to vitiate the conviction. For a contradiction to vitiate a conviction, it must go to the root of the matter and cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testified. PER WAMBAI, J.C.A.
WHETHER OR NOT A SINGLE CREDIBLE WITNESS CAN ESTABLISH A CASE BEYOND REASONABLE DOUBT
Moreover, the settled position of law is that even a single credible witness can establish a case beyond reasonable doubt provided the Court believes his evidence and the offence is one which by law requires no corroboration. See EFFIONG VS STATE (1996)4 SCNJ 95 @ 105, since the credibility of evidence depends not on the number of witnesses but on whether the Court accepts the evidence, ALI VS STATE (1988) 1 NWLR (PT. 68) 1. The sole witness may be the victim of the offence or another person who witnessed the commission of the offence. Once the Court believes his identification evidence of the accused, the evidence is sufficient to sustain or secure the conviction of an accused person. See FATAI VS. STATE (2013) 10 NWLR (PT 1361) 1, OCHIDA VS. STATE (2011) 12 SC (PT. 11) 79. PER WAMBAI, J.C.A.
INGREDIENTS OF PROVING THE OFFENCE OF CULPABLE HOMICIDE PUBNISHABLE WITH DEATH
For the offence of culpable homicide punishable with death under Section 221 of the penal code, the ingredients which the prosecution must prove to succeed have been stated and restated times without number to be the following namely: –
(i) That the death of a human being took place.
(ii) That such death was caused by the accused,
(iii) That the act of the accused caused the death with no intention of causing death or that the accused know that death would be the probable consequence of his act.
See MAIYAKI VS THE STATE (2008) 15 NWLR [PT 1109] 173, MAMMAN VS THE STATE (2015) LPELR 25963 (CA)
A failure to prove any of these ingredients beyond reasonable doubt means a failure to prove the charge and would result in the discharge of the Appellant. See IBRAHIM VS STATE (2015) LPELR ? 40833 (SC), ALI VS THE STATE (2015) LPELR-24711 (SC). PER WAMBAI, J.C.A.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This criminal appeal was triggered by the judgment of Hon. Justice A. M. Lamido of the Sokoto State High Court in charge No. SS/10c/2013 delivered on 16th June, 2016 which convicted the Appellant as 2nd accused, along with 7 other persons for the offences of criminal conspiracy, causing grievous hurt and culpable homicide punishable with death contrary to Sections 97, 248 and 221 (a) of the Penal Code.
The Appellant as 2nd accused along with the 7 others named in the amended charge sheet was alleged to have on or about the 6th day of April, 2012 at about 23-24:00 hours at Tsalibawa Area of Sokoto North Local Government Area, agreed to do an illegal act, to wit, to attack Mustapha Aliyu Ango, Shazaliyu U. Sahabi, Muntari Abubakar, Ibrahim Gandi, Muhammad Macca, Sanusi Ahmed, Mustapha Abdullahi, Adamu and Suleiman Muhammed all of Tsalibawa Area, with swords, cutlasses, Machetes and Sticks, and in furtherance of the agreement, voluntarily caused grievous hurt to one Shazaliyu U. Sahabi with swords, machete and sticks. They were also alleged to have caused the death of one
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Mustapha Aliyu Ango by attacking him with swords, machete and sticks which resulted in his death with the knowledge that death would be the probable consequence of their act.
Consequence upon the plea of not guilty by the Appellant and all the other co-accused persons, the prosecution paraded a total number of 13 witnesses and tendered several Exhibits including exhibits D and D1, the Hausa and the English translated version of the appellant?s statement to the police. The Appellant testified in his defence as DW3 but called no other witness or tendered any exhibit. After reviewing all the evidence and considering the written addresses of all counsel, the learned trial Judge found the appellant and all his co-accused persons guilty of criminal conspiracy, causing grievous hurt and culpable homicide punishable with death, as charged, and accordingly convicted them for counts, 1, 2, and 4, and sentenced them to death. They were however discharged and acquainted under count 3.
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Aggrieved by his conviction and sentence, the appellant commenced this Appeal the Notice of which was filed on 26th July, 2015 predicated upon eight grounds of appeal,
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from which learned Ibrahim Abdullahi ESQ (FRHD) who settled the Appellant?s brief of argument filed on 17/10/2018 but deemed on 18/10/2018 submitted 4 issues for determination, to wit: –
1. Was the Court below right in law when it relied on Exhibits D & D1 in convicting and sentencing the Appellant of the offences contrary to Sections 97, 248 & 221(a) of the Penal Code? (This is decoded from ground 6 of the grounds of appeal)
2. Did the Court below infringe on the Constitutional Right of the Appellant in the evaluation of the entire evidence before it? (This is decoded from ground 5 of the grounds of appeal)
3. Did the Court below consider all the defences available to the Appellant on record before convicting and sentencing the Appellant for offences contrary to Sections 97, 248 & 221 (a) of the Penal Code? (Decoded from ground 8 of the grounds of appeal)
4. Whether a case of Criminal Conspiracy, Causing Grievous Hurt and Culpable Homicide Punishable with Death contrary to Sections 97, 248 & 221 (a) of the Penal Code was made out to justify the conviction and sentence of the Appellant by the Court below? (This is
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decoded from grounds 1, 2, 3 & 4 of the grounds of appeal)
These 4 issue were adopted by the Respondent in its brief of argument filed on 8/4/19 but deemed on 9/4/19, which was settled by Almustpha Abubakar Esq., the Assistant Director of Public Prosecutions, Ministry of Justice Sokoto.
I shall determine this appeal on a sole issue culled from the four issues nominated by the learned Appellants counsel, viz:
?WHETHER THE LEARNED TRIAL JUDGE PROPERLY EVALUATED THE TOTALITY OF THE EVIDENCE INCLUDING EXHIBITS D & D1 AND CORRECTLY APPLIED THE LAW WHEN HE HELD THAT THE PROSECUTION PROVED ITS CASE BEYOND REASONABLE DOUBT AGAINST THE APPELLANT?
In arguing the appeal, the learned counsel took time, while arguing his issue No. 4, to re-state the trite position of our accusatorial system of criminal Justice anchored on the constitutional presumption of innocence of an accused person as provided by Section 36(5) of the 1999 constitution (as amended) and applied in the cases of AHMED VS STATE (1999) 7 NWLR [PT 612], & ODEN VS FRN (2005)1 NCC 303, 337. As to what constitutes proof beyond reasonable
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doubt, the case of BAKARE VS STATE (1987)1 NWLR [PT 52] 579, 588 C Par Oputa JSC was called in aid.
It was learned counsel?s contention that the prosecution (respondent) did not prove the essential elements of any of the three offences, namely, criminal conspiracy, voluntarily causing grievous hurt and culpable homicide punishable with death in respect of which the Appellant was convicted and sentenced.
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For the offence of criminal conspiracy whose essential elements are two, namely: (a) an agreement by two or more persons to execute an agreed act and (b) the agreed act being unlawful, counsel contended that none of the prosecution witnesses produced any evidence to show that the appellant conspired to commit the acts of causing grievous hurt or culpable homicide punishable with death or any evidence of common intention with any person to commit any unlawful act. To drive home his argument, he submitted that up till date no complaint has been received from any person against the Appellant as one of the persons who perpetrated the said acts. However, the learned trial Judge in trying to look for corroborative evidence of common intention,
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relied on the evidence of PW4 & PW7 in respect of the offence of causing grievous bodily hurt and on the evidence of PW3 and PW5 with respect to the offence of culpable homicide punishable with death though their evidence are not in harmony with each other. To demonstrate the disharmony in their evidence, our attention was drawn to the evidence of PW4 and PW6 in whose company PW7 said he was when the appellant allegedly injured him (PW7) but none of them either mentioned the name of the Appellant or said they saw the PW7 being injured. Worse still they gave evidence of different locations without implicating the Appellant.
On the evidence of PW3 and PW5 relied upon as corroborating the Appellant?s common intention with the other co-accused persons for the offence of culpable homicide punishable with death, it was counsel`s submission that in so far as the evidence of PW5 relates to an incident that occurred on 6/4/2013 as against the date of 6/4/2012 quoted on the charge sheet, the prosecution`s case is patently unreliable and should be treated the way the supreme Court treated a similar situation in the case of ONWE VS STATE (2017) LPELR-42589
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(SC).
What is even more disturbing according to the learned counsel is that the lower Court also made use of the confessional statements of the 1st and 6th accused persons as corroboration of the Appellant`s common intention with the other co-accused persons, though the confessional statements were neither made in the presence of the Appellant and adopted by him nor adopted by their makers in Court. Learned counsel cited several authorities to impress it upon us that it amounts to grieve error in law and travesty of Justice for a Court to rely on extra-judicial statement of a co-accused against another co-accused who did not adopt the implicating statement, stressing that as dumb founding and infuriating the 1st and 6th accused persons? confessional statements may be, they are only relevant against the makers and not against any co-accused, citing in support the cases of MBANG VS STATE (2009)18 NWLR [PT 1172] 140, at 159 E-F RATIO 5, GBADAMOSI VS STATE (1990) 1 NWLR [PT 124] 92 @ 113 & WING COMMANDER T.L.A SHEKETE VS NIG. AIR FORCE (2000) FWLR [PT 29] 2438, SUBERU VS STATE (2010) LPELR-3120 (SC).
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He wondered how the learned trial Judge
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who appreciated the fact that the Appellant was the only one who in his statement denied participating in the attack would later in the judgment somersault, contrary to the supreme Court decision in OZAKI VS STATE (SUPRA), to use the confessional statements of the other co-accused persons, to convict the Appellant.
According to the learned counsel, the Appellant was neither a ?criminis Partcipes? in the murder of the deceased as the evidence on record irresistibly pointed only at the 1st accused with no clear cut evidence of what the Appellant did in furtherance of the killing of the deceased or that the death arose from the purported act of the Appellant at any time. This he argued, has created a doubt as to what caused the death of the deceased and should be resolved in favour of the Appellant. The case of AKPABIO VS STATE (1994)7 NWLR [PT 359] 635 @ 670 was cited to buttress the submission.
On his issue No. 2 it was the contention of counsel that for a court to ensure a fair hearing to a party in the suit as enshrined in Section 36 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and applied in the case of
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AKANNI V. OLANIYAN (2007) AK F.W.L.R [PT 380] 1554 AT 1556, the Court has a duty not only to consider and appraise the evidence in chief of the prosecution witnesses but also to consider and appraise the evidence elicited through them in cross-examination which also forms part and parcel of the evidence of the witnesses as provided by Section 215 (1), (2) and (3) of the Evidence Act. He contended that the learned trial judge merely restated the evidence of the prosecution witnesses in chief without a corresponding consideration and appraisal of the evidence elicited in cross-examination and drawing the necessary inferences therefrom. By so doing, he argued, the trial judge jettisoned the dual purposes of cross-examination, of weakening, or destroying the prosecution`s case and establishing the case of the Accused/Appellant, he cited in support the cases of VICTOR OJIAKO VS THE STATE (1991)2 NWLR [PT 175] 578, OGBEIDE VS OSULA (2004) 12 NWLR [PT 886] 188 D-E.
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Learned counsel further observed that the heavy reliance placed only on the evidence in chief of PWs 3, 4, 5, 7 and 8 in convicting and sentencing the Appellant in disregard to their evidence elicited in
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cross-examination is a blatant failure by the learned trial judge to properly evaluate the evidence and is an invitation to this Court to intervene by setting aside the findings, as the decision arrived at which sacrificed the essentials of fair hearing occasioned a miscarriage of justice. He called in aid the cases of ADELEKE V IYANDA (2001) NWLR (PT. 60) 1522 RATIO AND ANYAEGBU VS HUSSAINI (2001) NWLR (PT. 84) 247, 354. RATIO R.
On the connotation, essence and attributes of fair hearing, the cases of FARAJOYE VS HASSAN (2007) ALL FWLR [PT368]1070, 1100 PAM VS A.N.P.P (2008)4 NWLR [PT1077]219, at 351-252 PARAS H-B, OKAFOR VS A.G ANAMBRA STATE (1991) NWLR [PT 200] 659, BAMGBOYE VS UNIVERSITY OF ILORIN (1999) 10 NWLR [PT 622] 290 among many others, were cited, urging us to resolve the issue in favour of the Appellant.
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Still on the issue of improper evaluation and wrongful reliance on evidence, it was contended under his issue no. 1 that for the discrepancy between Exhibits D and D1, the learned trial judge ought not to have placed reliance on them PW12 who recorded the two statements having admitted in cross-examination that he included additional
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names not mentioned in the original statement of the Appellant (Hausa version) into Exhibit D1 (the English version) which he cannot explain, suggesting that Exhibit D1 is not the exact contents of exhibit D but was doctored aimed at roping the Appellant in the commission of the alleged offences. Such an admission by PW12, he argued, is an admission against his interest and is the best evidence in favour of his adversary which requires no further proof. For this preposition, he cited the cases of AWOTE VS. OWODUNNI (NO.2) (1987) 2 NWLR PT.57 PG. 367, ISO VS. ENO (1999) 2 NWLR. PT. 590 PG. 204, ATANZE VS. ATTAH (1999) 3 NWLR PT. 596 PG. 647. ONYENGE VS. EBERE (2004) 13 NWLR (PT. 899) 20; among others.
He complained that rather than ignoring the two Exhibits ,the lower Court not only made use of the contents of Exhibit D1, without resolving the manifest inconsistency blatantly apparent, but worse still and more worrisome is the fact that the Court rejected the parole evidence of the Appellant on the grounds that it amounted to reselling from Exhibits D and D1 and only made use of the contents of Exhibits D and D1 thereby occasioning a miscarriage of justice
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against the Appellant urging us to resolve the issue in favour of the Appellant against the respondent.
Under his issue No. 3, it was submitted that for any offence attracting the death sentence, the Court including the Appellate Court is mandated to carefully consider the entire evidence and all the available defences whether raised by the accused person or not no matter how unreasonable and stupid. He cited the cases of OFORLETE VS STATE (2000) 3 NSCQR 243,245, EDIBO VS STATE (2007) LPELR-1012(SC). Learned counsel reproduced part of the Appellant?s Statement, Exhibit D1 and argued that the Appellant at the earliest opportunity raised the defence of alibi stating where he was when the incident took place and denying any involvement in the commission of the offence but same was neither investigated by the police nor considered by the trial Court, which he argued is fatal to the prosecution’s case. While conceding that it is not in all cases of failure to investigate the defence of alibi that would exonerate an accused person, learned counsel contended that no concrete and reliable evidence was adduced by the prosecution fixing the Appellant at the
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scene of crime. He described the evidence of PW7 relied upon by the trial Court as fixing the Appellant at the scene of crime, as being incredible same being contradictory to the evidence of PW4 and PW6 who were together with PW7 but whose evidence relate to different locations. The impossibility of the Appellant being at 3 different places at the same time counsel argued, renders the evidence of PW7 unreliable.
It was his follow up submission that the failure of the prosecution to investigate the alibi is fatal and the Court?s reliance on the evidence of PW7, vitiates the whole proceedings and must result in the setting aside of the decision and the quashing of the conviction and sentence. For this, he cited the cases of OPAYEMI VS STATE (1985) 2 NWLR [PT 5] 101, OGUNLEYE VS STATE (1991)3 NWLR [PT 177]1, at 13 E-H, ALIYU VS STATE (2007) ALL FWLR [PT 388] 1123,1142 NWATURUOCHA VS THE STATE (2011) LPELR-8119, OKAFOR VS AG IMO STATE (2018) LPELR 43693 (CA).
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Responding to the foregoing submission, while conceding that the onus is always on the prosecution to prove the guilt of an accused person beyond reasonable doubt, which does not mean proof
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beyond all limits, the Respondent`s contention is that there was overwhelming evidence on record which proved beyond reasonable doubt that the Appellant conspired with the other co-accused persons to commit the said offences of causing grievous hurt and culpable homicide punishable with death contrary with Sections 248 and 221 of the penal code.
On the offence of criminal conspiracy, it was counsel`s submission that the agreement to commit an offence is usually inferred since the crime is usually hatched with the utmost secrecy and the conspirators need not know themselves. Our attention was drawn to the confessional statement of the 1st accused person wherein it was stated that the accused persons planned to attack the youth of Tsalibawa Area.
On the offences of causing grievous hurt and culpable homicide, it was submitted that there was evidence by PW7 & PW4 that Appellant attacked PW7 with a cutlass and hit him at his back & arm on the 6/4/2012. He contended that minor discrepancies as to dates, time & places of committing an offence is not fatal to the prosecution`s case as held in the cases of EKE VS STATE (2011) 3 NWLR 589 (SIC),
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AFOLALU VS STATE (2009)3 NWLR [PT 1127] 169, thus the acclaimed inconsistency between the evidence of PW4 & PW7 as to the location of the incident, whether at the tea sellers shop or Yahuza?s shop is not a contradiction and not fatal. He observed that there are several shops within the area and the accused persons were expectantly not stationed at the same spot.
On the Appellant`s argument that the learned trial judge relied on exhibits D and D1 to convict the appellant, the Respondent`s answer is that aside from exhibits D & D1 and the confessional statements of other co-accused which did not form the basis of the Appellant?s conviction, there are other pieces of overwhelming evidence of eyewitnesses account that linked the Appellant as participating in the commission of the crime which the Court relied upon in convicting the Appellant, such as the eyewitness evidence of PW7 which fixed the Appellant at the scene of crime and who maintained in cross-examination that there was sufficient light to see the Appellant, as corroborated by PW8 and PW9. He is therefore of the view that it can be concluded that the Appellant indeed
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participated in the commission of the crime thereby destroying and demolishing the alibi. Moreover, the complaint that the lower Court acted on exhibits D and D1 and disregarded the Appellant?s oral evidence in Court is belated, Exhibits D and D1 having been admitted without any objection to their voluntariness, contending also that the inclusion of additional names in exhibit D1 is not enough to upturn the decision.
He therefore, pointed out that the question of who killed the deceased, is immaterial because the appellant and his other gang members had the common intention to kill the youth of Tsalibawa and by virtue of Section 79 of the penal code when a criminal act is done by several persons in furtherance of a common intention, each of them is liable in the same manner. He cited in support the case of BUJE VS STATE (1991)4 NWLR [PT 185] @ 297.
On the contention that the trial judge did not properly evaluate the evidence and infringed upon the Appellants right to fair hearing, counsel`s contention is that the trial Court adequately evaluated the entire evidence adduced before the Court in arriving at its conclusion as shown by the
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discharge & acquittal of each of the accused persons for the death of Sanusi Ahmed whose death the learned trial judge after due evaluation, found was not linked to the acts of any of the accused persons. This, he argued, demonstrates the fact that the judge evaluated all the evidence before him, reiterating that the Appellant was fixed by eye witnesses at the scene of crime. After all, the Court is the master of facts of evidence to assess prudently and objectively, citing in support the case of AKINBISADE VS STATE (2006) 17 NWLR [PT 1007] 184,193.
In view of all these, he opined that the Appellant`s claim of denial of fair hearing does not arise as the lower Court adopted the principle of fair hearing, accorded the Appellant equal opportunity with the Respondent, and was indeed throughout the trial from arraignment to judgment represented by a counsel of his own choice who had the opportunity and did cross-examine the prosecution witnesses. Premised on the foregoing, counsel pointed out that it is not enough to allege breach of fair hearing, the party so alleging must go further to show clearly that such a right has actually been breached.<br< p=””
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Predicated on the foregoing, it was submitted that a decision of a trial Court will not be reversed on a complaint of it being against the weight of evidence unless the Appellate Court is satisfied that the judgment is unjustifiable and unreasonable.
In refuting the assertion that the defence of alibi raised was not investigated and the learned trial judge did not consider same, the submission of the Respondent?s counsel is that where as in the instant appeal the defence was not raised at the earliest opportunity but at the stage of trial when the police would have been denied the opportunity to investigate same, the accused must adduce evidence in support of the alibi otherwise the defence would not avail him more so when the accused was fixed at the scene of crime, thereby demolishing the alibi and entitling the Court to rely on the evidence adduced by the prosecution. He cited in support the cases of STATE VS EKANEM (2017)4 NWLR (PT 1554) 84 @ 107, AKPAN VS STATE (1986)3 NWLR (PT 27) 2258, AND DANSHALLA VS STATE (2005)1 NCC 24 at 27-28 RATIO 2 among others.
To wrap up on the trial Court?s justification for disbelieving the
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Appellant, it was submitted that in view of the contradictions between the Appellant`s oral evidence in Court and Exhibits D and D1, the Appellant deserves no benefit of credibility as a witness of truth, citing in support the cases of AJOSE VS FRN (2013) 8 NCC 555 RATIO 7, At 559, EZEMBA VS IBENEME (2004) ALLFWLR 178.
Finally, counsel pointed out that the judgment of the lower Court reveals that the Court considered the available defences including those of sudden fight and self-defence which did not scale through, urging us to dismiss the appeal.
Now, the Appellant along with others were charged and convicted for the offences of causing grievous hurt, culpable homicide punishable with death, and criminal conspiracy punishable under Sections 248, 221, and 97 of the penal code.
It is a well settled principle in our adversary adjudicatory system of criminal jurisprudence that the burden of proof always lies on the prosecution. This is founded on the immutable & irrefutable presumption of innocence of an accused person constitutionally provided by Section 36 (5) of the 1999 constitution F.R.N (as amended). It
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provides:
?every person who is charged with criminal offence shall be presumed innocent until proved guilty,?
Thus the prosecution bears the heavy and unshifting burden of proving the guilt of an accused person beyond reasonable doubt and with no corresponding duty on the accused to prove his innocence. ASAKE VS THE NIG. ARMY COUNCIL & ANR (2007) 1 NWLR [PT 1015] 408, OGIDI VS THE STATE (2005) 5 NWLR [PT 0918] 286.
The only duty placed on an accused person is a benign one, to cast a doubt on the case of prosecution or to discredit the prosecution?s case to make it unreliable or unsafe for a reasonable Court or tribunal to convict upon same.
Therefore, for the prosecution to dislodge the presumption of innocence against an accused person, it must prove each and every element of the offence beyond reasonable doubt. See ADIGUN VS AG OF OYO STATE (1987)1 NWLR [PT 53] 678, ANEKWE VS THE STATE (1976) 8-19 SC 255.
It must however be stated that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt or proof to the hilt. If the law were to place such an almost impossible standard of proof, then
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as observed in MILER VS MINISTER OF PENSION (1947)2 ALL E.R P.372, the law would fail to protect the community if it admits fanciful possibilities to deflect the cause of justice. The proof beyond reasonable doubt simply means exactly what it says. It is proof beyond reasonable doubt and not proof beyond unreasonable doubt, fanciful possibilities or shadow of doubt. It means what is says, it does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency consistent with an equally high degree of probability. See MUFTAU BAKARE VS STATE (SUPRA) also reported as (1987)1 NSCC 26 @ 272.
For the prosecution to succeed in proving the offence of causing grievous bodily hurt under Section 248, it must prove the following ingredients beyond reasonable doubt:
(a) That the accused caused by his act bodily pain, disease or infirmity to the complainant.
(b) That he did so intentionally or with the knowledge that the act would cause hurt, etc.
(c) That the act was unprovoked.
(d) That the accused caused the bodily harm etc., by means of an instrument for shooting stabbing or cutting or by an instrument which
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is used as weapon is likely, to cause death: or by means of fire, etc., or by means of any poison etc., or by means of any substance which itself is deleterious to the human body to inhale etc., or by means of any animal.
These ingredients can be proved by any or a combination of all of the following ways: – namely
(a) Confessional statement of the accused/Appellant.
(b) Evidence of an eye witness or
(c) Circumstantial evidence.
See IGABELE VS STATE(2006)6 NWLR [PT 975]100, IGBIKIS VS STATE (2017) LPELR-4166 (SC), HARUNA VS ATTORNEY GENERAL OF FED. (2012) LPERL ? 7821 (SC).
The evidence on record consists of the Appellant?s extra-judicial statement and eye witnesses account of the incident.
In exhibit D1, which is the English version of the Appellant?s statement recorded in Hausa Language (Exhibit D), the Appellant stated inter alia: –
It was on Friday night 61412012 around 11:00pm. I was at my place of working where I watching (sic) the shop of my uncle Abdullahi including firewood when some group et. boys from Tsalibawa area came to fight the boys of our area where they fight them back even
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some of them carry my firewood which are kept in front of the shop I watching (sic). Among the boys that I seen on that very night include Murtala (Gidigwa), Dan Asabe, Fatihu, Muhammad (Wani Mishi), Dangiyawa, Manjun abba Ruwa, Nasiru (Kambi), Ali (Kahiri), Mai Jankai, Nafiu Isah. Me I did not join them in fighting but later on Saturday evening 7/4/2012 where officials from civil defence arrested me but actually when they finish fight (sic) they came back continued telling story about the fight and had say (sic) chairman Murtala (Gidigwa) Dangiyawa, mai jankai used weapon and beat the deceased person.
The above statement (Exhibit D1) as correctly appreciated by the learned trial judge is a denial of any involvement in the fight. Exhibit D1 does not qualify and cannot be considered as a confessional statement, a confession being an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Section 28 of the Evidence Act.
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In Exhibit D1, there is nowhere that the Appellant admitted, expressly or impliedly, that he took part in the fight or committed any offence. Merely observing
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a group of people who engage themselves in a fight in front of one`s work place without anything more does not make the person a party to the fight. Therefore Exhibit D and D1 cannot be relied upon as confessional statement or form the basis of the Appellant?s conviction.
Furthermore, assuming Exhibit D1 were to qualify as a confessional statement, and I am not saying so, it would still be unsafe to rely solely on it not only because the Appellant has resilled therefrom but also because as rightly submitted by the Appellant`s counsel, the admission by PW12 who recorded both statements, of the inclusion of additional names in Exhibit D1 not mentioned by the Appellant in Exhibit D, renders Exhibit D1 unreliable and unsafe to rely upon.
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In addition, the law with respect to the use of a confessional statement made by a co-accused person against another co-accused is, as correctly stated by the learned Appellant?s counsel. It is settled law that a statement made by an accused person to the police is and remains evidence only against the maker. It is generally not admissible or relevant against another co-accused. The only instance when a
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confessional statement made by an accused person implicating a co-accused in the same trial will be admissible or binding against the co-accused, is when same is made in his presence and adopted by him. By virtue of Section 29(4) of the Evidence Act where more than one person are charged jointly for an offence, a confessional statement made by one of the accused persons shall not be considered against the other accused person except it is made in his presence and adopted by him. Judicial authorities giving life to this statutory provision abounds. In AIKHADUEKI V STATE (Supra) the apex Court held:
?…….. In any case the Court is wary of an allegation in a statement of one accused person against another. It is trite law that allegations in a statement made by one accused against a co- accused will not constitute evidence against the co-accused unless the said co-accused has adopted the statement”
?It is an error in law and indeed a travesty of justice to rely on a confessional statement of a co-accused against another, or to convict a co-accused on the statement of another co-accused. I am therefore at one with the learned
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Appellant?s counsel that the contents of Exhibit J and J1 are admissible only against the maker, the 1st accused person, and not against the Appellant.
It is to be noted, however, that Exhibits D and D1 are not the only pieces of evidence offered by the prosecution against the Appellant. The prosecution fielded some witnesses whom it refers to as eye witnesses. Of these witnesses, is PW7 who is the victim of the offence of causing grievous hurt. His evidence runs as follows: –
?I can recall that on 06/04/2012 around 12 midnight I was at Tsalibawa area at a Tea Sellers point. They were quite a number of people because there were other shops. Some of the people we were together with Sanusi Shehu (PW6), Sirajo Buhari, Salmanu Shehu and Jamilu Ahmed (PW4). I asked the Tea Seller to prepare indomie for me and I was facing the Tea Seller and eating my Indomie when somebody hit me with a stick tied with a sprocket at the back of my head. It was the 1st accused that hit me with a stick while the rest surrounded me. I asked him what happened and that my name is Shazali. The 1st accused then said who and ordered that I should be beaten. He then
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attempt to cut me with his stick again but I held it. Then the 2nd accused hit me with his cutlass on my back and on my arm. I then turned to look at the 2nd accused and at that movement the 1st accused pulled away his stick I was holding in my hand and he slammed the stick on my forehead and I fell unconscious when the people dispensed one man came and assisted me and took me on his Motorcycle to the specialist Hospital, Sokoto
Jamilu Ahmed (PW4) and Sanusi Shehu (PW6) were among the people in whose accompany PW7 was when the incident took place.
PW6 who mentioned the names of all but the 6th accused, stated that he saw the 1st accused, the Appellant and other boys belonging to the 1st accused person?s gang when they came and met them outside where they were waiting for NEPA to restore light. He saw the accused persons hitting people with sticks and cutlasses. He maintained in cross-examination that it was the accused persons, (Appellant inclusive) whose names he had mentioned, that attacked them.
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Similarly, PW4 stated that he was sitting together with PW7 and some other persons at Yahuza?s shop when the 1st
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accused who arrived with his boys, hit one Sanusi on the head with stick as a result of which the Sanusi fell on him (PW4). Realizing that the 1st accused and his group came for a right, he ran away.
What sticks out from the combined evidence of PW7, PW6 and PW4 is that apart from PW7 who is the victim of the offence to whom the grievous hurt was caused, neither PW6 nor PW4 witnessed the actual hitting of PW7 by the Appellant. However, the Appellant was identified as one of the persons in the company of the 1st accused and others who attacked PW7 and his group. On his return to the scene, PW4 saw PW7 as one of the Injured persons.
The learned Appellant`s counsel has faulted the lower Court`s reliance on the evidence of PW7, PW4 (and PW6) on the ground that their evidence is contradictory, that PWs 4 & 6 did not affirm seeing Appellant hit PW7 and that their evidence relates to different locations and time.
A piece of evidence is said to contradict the other when it asserts the exact opposite of what the other asserts and not when there are minor discrepancies between the two See GABRIEL VS STATE (1989)12 SCNJ 33, NWACHAKWU VS ONWUWAINE
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(2011) ALL FWLR (PT 589) 1044.
The law appreciates and accepts the fact that human faculty may miss some minor details mostly due to lapse of time. Errors may occur and sometimes are bound to occur in the order of sequence of narration of events, time or even locations, or on minute details. See SELE VS. STATE (1993). This is normal for if two or more witnesses are to give account of an incident that occurred in the past word for word or with exactitude with each other, that would be viewed with suspicion. Thus, depending on each person?s astuteness and capacity for observing and storing details, one piece of evidence may fall short of or contains a little more details than the other. such discrepancies or inconsistencies not touching on the substance of the case are not considered as contradictions.
Two pieces of evidence are said to contradict each other when they are by themselves inconsistent and assert the opposite of the other. Thus, while contradiction goes to the essentiality of something being or not being, a discrepancy depends on the person?s astuteness and capacity to observe details.
?Even at that, it is not every
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contradiction in the evidence of witnesses that can be treated as material to vitiate the conviction. For a contradiction to vitiate a conviction, it must go to the root of the matter and cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testified.
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In the instant case, it is clear that there is no contradiction or a negation of the evidence of PW7 that the Appellant hit him with a cutlass on his back and arm or that both PW7 and PW6 saw the Appellant among the persons in company of the 1st accused who attacked them. PW7 was consistent and firm in evidence that the Appellant hit him at his back and arm, when he turned, he saw the Appellant. Though the incident happened in the night the tea seller?s and the wood seller?s shops had lamps. PW4 saw the Appellant among the people who attacked them before he (PW4) ran away for his dear life realizing that the accused persons had come for a fight, after 1st accused had hit Sanusi on the head. PW6 also saw the Appellant together with the 1st accused and other persons who came to meet them when they were waiting for NEPA to restore light. These pieces of
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evidence are not contradictory but complementary of each other.
Similarly, by the same parity of reasoning and perforce of decided authorities, the discrepancy as to whether the incident took place at the tea seller?s shop or at the Yahuza?s shop is not material as the two places are within the same vicinity and evidence on record shows that the rampaging attackers were not stationed at one place. There is therefore no reason to fault the trial Court?s acceptance of and reliance on the evidence of the said prosecution witnesses.
Moreover, the settled position of law is that even a single credible witness can establish a case beyond reasonable doubt provided the Court believes his evidence and the offence is one which by law requires no corroboration. See EFFIONG VS STATE (1996)4 SCNJ 95 @ 105, since the credibility of evidence depends not on the number of witnesses but on whether the Court accepts the evidence, ALI VS STATE (1988) 1 NWLR (PT. 68) 1. The sole witness may be the victim of the offence or another person who witnessed the commission of the offence. Once the Court believes his identification evidence of the accused, the
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evidence is sufficient to sustain or secure the conviction of an accused person. See FATAI VS. STATE (2013) 10 NWLR (PT 1361) 1, OCHIDA VS. STATE (2011) 12 SC (PT. 11) 79.
It is the argument of the learned Appellant`s counsel that the alibi raised by the Appellant in his statement to the police, Exhibit D1, was neither investigated by the police nor considered by the Court. It is true that there is no evidence on record of any investigation of alibi and understandly so because Exhibit D1 does not seem to have raised such issue. What Exhibit D1 raises, is the issue of none participation in the fight which took place in his presence, in front of his uncle?s shop where he was working, watching over the shop during which fight some of his uncle`s firewood were used by the assailants. Furthermore, assuming without so deciding that Exhibit D1 raised an issue of alibi, the overwhelming evidence of PW7, PW6 & PW4 which positively fixed the Appellant at the scene of crime effectively demolished and destroyed the alibi. Once an accused person is positively fixed at the scene of crime, his alibi must fail. See OMOTOLA VS STATE (2009)4 NCC 89, AKEEM (2017)
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LPELR -42465 (SC), OZAKI VS STATE (1990)1 NWLR [PT 124] 92, AKPAN VS STATE (2002)12 NWLR [PT 780] 189. See also NWATURUOCHA VS STATE (SUPRA) AND ALIYU VS STATE (2013) LPELR-20748 cited by the Appellant?s counsel.
It is to be noted that in the case at hand the lower Court believed and accepted not only the evidence of PW7, but also the evidence of PW4 and PW6, and from our analysis of the evidence, we have no reason to shift ground. It is only logical and goes without saying that a person who hits another with a cutlass intends or knows that bodily pain or infirmly would be caused to the person so hit, and where as in this case the act of causing bodily pain to another is shown to have been done by means of an instrument for cutting, such as cutlass and was done unprovoked, the offence under Section 248 (2) of the penal code is complete.
For the offence of culpable homicide punishable with death under Section 221 of the penal code, the ingredients which the prosecution must prove to succeed have been stated and restated times without number to be the following namely: –
(i) That the death of a human being took place.
(ii) That such
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death was caused by the accused,
(iii) That the act of the accused caused the death with no intention of causing death or that the accused know that death would be the probable consequence of his act.
See MAIYAKI VS THE STATE (2008) 15 NWLR [PT 1109] 173, MAMMAN VS THE STATE (2015) LPELR 25963 (CA)
A failure to prove any of these ingredients beyond reasonable doubt means a failure to prove the charge and would result in the discharge of the Appellant. See IBRAHIM VS STATE (2015) LPELR ? 40833 (SC), ALI VS THE STATE (2015) LPELR-24711 (SC).
The 1st ingredient that a human being in the person of Muhammad Aliyu died, is conceded by the defence. Moreover, evidence abounds on record including the evidence of PW1, the deceased`s father, and medical report which prove beyond reasonable doubt the death of the said Muhammad Aliyu.
On the 2nd ingredient that the death of the deceased, Muhammad Aliyu Ango, was caused by the act of the Appellant, this ingredient of the offence together with the 3rd ingredient, the mens rea, which is the mental element of the offence are often the most disputed elements of the offence. They remain the
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recurring point of discordance between the prosecution and the defence and shall remain so.
It is to be noted that the eye witnesses evidence on record point at the 1st accused as the person who axed down the deceased, Muhammad Aliyu Ango, on the head which caused his death. There is no evidence that the Appellant physically hit the deceased. Evidence however abounds that the Appellant was one of the gang members led by the 1st accused who attacked Tsalibawa Area on the fateful day and injured many people including the deceased, Muhammad Aliyu Ango. (See the evidence of PW3 and PW5, PW6 and PW7).
The contention of the learned Appellant`s counsel however is that the evidence of PW3 and PW5 who were the only eye witnesses to the killing of the deceased, contradict each other as their evidence relate to event that occurred at two different dates, one on the 6/4/2012 as narrated by the PW3 and the other on 6/4/2013 as narrated by PW5 thereby making the prosecution?s case unreliable as held by the supreme Court in a similar case ofONWE VS STATE (2017) LPELR ? 42589 (SC). We have carefully perused that case and find that the facts of the case
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are distinguishable from the facts of this present appeal. Whereas the evidence of PW3 & PW5 relate to the same event but for a discrepancy in stating the correct year by the PW5, in the ONWE VS STATE?s case (SUPRA), the Appellant was charged for the murder of one NDUDIRI ONYEKWERE but PW4 therein gave evidence of the death of NDUBISI ONYEKWERE. The identity of the deceased was in issue and unresolved while the Appellant was charged for the murder of NDUDIRI ONYEKWERE whose body PWs 1, 2 and 3 said an autopsy was conducted on PW4, the Pathologist insisted that the body on which he conducted an autopsy was the body of one NDUBISI ONYEKWERE identified to him by a policeman. The trial judge convicted the Appellant for the murder of EARNEST NDUBISI ONYEKWERE. The contradiction no doubt were material, and the Court held that another version of the same murder had been introduced and that the contradiction was material.
?The scenario in the appeal before us is quite different. All the prosecution witnesses but PW5 as well as the defence witnesses testified to the effect that the incident occurred on 6/4/2012 in agreement with the date quoted on the
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charge sheet. The evidence of PW5 also tallies with the evidence of PW3 and the other witnesses as regards the date and the month. The only variant is in the year. While the charge sheet and the other witnesses, both prosecution and defence, state the year of the occurrence of the incident as 2012, PW5 stated the year to be 2013. The question is whether this discrepancy is material or substantial as to render the evidence of the prosecution witnesses unreliable as the learned counsel has asked us to do. My simple answer to this poser is a resounding ?No?. I say so because it is very obvious that the difference, only in the year ?2013? instead of ?2012? and not in the date and month 6th April, cannot be anything but a mistake on the part of the PW5. This kind of mistake which can simply be referred to as human error, can be committed by any person. Often, where no party is misled by such a mistake nor a miscarriage of justice occasioned, the Court treats such as a mere discrepancy which is not material to affect the credibility of the witness or the outcome of the decision. Such is the case here as no one is in doubt that the
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event being narrated by PW5 refers to the same event narrated by PW3 and the other witnesses which event took place on 6/4/2012. The defence was not misled by the mistaken year ?2013? stated by PW5 in his evidence instead of ?2012?. Indeed, the attitude of the Supreme Court to such a mistake in date as between the date contained in the charge sheet and the date as testified to by the witnesses including the defence witnesses is that, such a mistake is a minor discrepancy which should not vitiate the conviction. This was the position of the Court in the case of ANKPEGHER VS. STATE (2018) LPELR-43906(SC).
In sum, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged should not vitiate the case of a party See: Afolalu v. The state (2009) 3 NWLR (Pt. 1127) 160; Nasiru v. The State (1999) 2 NWLR (Pt. 589) 87; Okoiziebu v. The State (2003) 11 N WLR (Pt 831) 327.
Belgore, JSC (as he then was) aptly and succinctly captured the law in the case of SELE Vs. STATE (1993) 1 NWLR (PT. 269) 276 in this way ?
?Contradictions, to be fatal to prosecution’s case, must
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go to substance of the case and not be of a minor nature. If every contradiction, however trivial to the overwhelming evidence before the Court will vitiate a trial, human faculty to miss some minor details due to lapse of time and error in narration in order of sequence will make nearly all prosecutions fail . Thus if the contradiction does not touch on a material point or substance of the case it wins not vitiate a conviction once the evidence is clear and it is believed or preferred by the trial Court.?
Therefore, the decision in ONWE VS. STATE (Supra) is distinguishable from the facts of this case and does not apply here.
Having so found, the pertinent question is whether the Appellant who has not been shown by evidence to have personally hit or inflicted any injury on the deceased but was in company of the 1st accused who did so can be said to have caused the death of the deceased. This is the situation which Section 79 of the penal code addresses. It provides:
?When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same
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manner as if it were done by him alone.?
By this provision, when several persons form a common intention to commit an offence in conjunction with one another and in the prosecution of their common intention, they jointly commit the offence, each of the several persons will be deemed to have committed the offence and be liable as if he had committed the offence alone. It is immaterial and matters not who did what. See ALAO V. STATE (2015) 24686 (SC) and AKINKUNMI vs. STATE (1987) NWLR (PT. 52) 608. In other words, when the existence of a common intention between all the several persons who committed the criminal act and the criminal act itself is established, each of such persons would be liable for the entire criminal act. This would include all acts contemplated by the participants or which would ordinarily be done in furtherance of that common intention.
?The Section simply makes the act of one accused person the act of the other if the offences committed are in furtherance of the prosecution of their unlawful common purpose. The common intention is usually inferred, and it is manifested in the execution of the common object. Thence, once it
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is proved that they all participated in the crime, it matters not what each one of them did individually. What matters is the common intention to do an unlawful act and participation in the commission of the act.
In DSP Godspower Nwankwoala & Anor v. The State (2006) 12 SCM (Pt. 2) 267 the supreme Court stated thus:
?Where more than one person are accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. See; Patrick Ikemson & Ors v. The State (1989) 3 NWLR (Pt. 110) 455 at 466; Where common intention is established, a fatal blow or gunshot though given by one of the party, is deemed in the eyes of the law to have been given by all those present and participating.?
See also ALAO V STATE (supra).
?In summary, when two or more persons form a common intention to commit a criminal act in conjunction with one another and in the
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prosecution of such purpose an offence is committed of such a nature that its commission is a probable consequence of such purpose, each of them is deemed to have committed the offence.
For this purpose, a common intention needs not be based on direct evidence or an express agreement between them, it can be inferred from the circumstance of the case.
Let me stress here that the mere presence of one of the conspirators during the commission of the crime provides encouragement, protection or support for the others and is sufficient in the eyes of the Law to make him liable for the offence as if he himself committed the offence. Therefore, in the case at hand It is immaterial that the Appellant did not himself hit the deceased. It is sufficient that he was in company of the several persons led by the 1st accused who launched an attack at Tsalibawa Area and was part of the group when the 1st accused person killed the deceased. His presence at least, provided encouragement to the 1st accused and it is as if he committed the act himself.
?It is for this stated position of the law and the established facts on record that the learned trial judge found
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at page 290 of the record that:
And although the 2nd accused (Appellant herein) did not confess or admit to the commission of the offence, eye witness accounts have proved that he was present during the attack and have actually participated in the attack.?
On the proof of intention, the learned trial judge rightly held:
. Intention which is not tangible can be inferred from the surrounding circumstance of any given case. The inference is often drawn for the weapon used to commit the crime, the force used and the part of the body on which the injury was inflicted
The above is the correct re-statement of the law. There should be no hesitation by any Court to draw an inference that a person who strikes another twice on a very delicate part of the body, such as the head, with a lethal weapon such as an axe intends to kill that other or knows or is deemed to know that death would be the probable consequence of his act. See SANI VS STATE (2017) LPELR 43475 (SC), MICHAEL VS THE STATE (2008)13 NWLR [PT 1104] 361-377.
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Thus, the prosecution proved all the ingredients of the
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offence of culpable homicide punishable with death against the Appellant.
On the charge of conspiracy, conspiracy simply means an agreement between two or more persons to do an unlawful act or to do a lawful act by un-lawful means. Often, conspiracy to commit an offence is inferred from circumstantial evidence, and it is based on common intention or purpose of the parties. The offence is complete by the mere agreement. It is not necessary in order to prove conspiracy that the conspirators should be seen like those who murdered Julius Ceaser, to be coming out of the same place at the same door. Once, as in the case at hand, there is evidence to commit the substantive offence, it does not matter that any of the conspirators did what. See SULE VS STATE (2009) LPELR 3125 (SC).
The complaint of the Appellant`s counsel that the lower Court did not consider the defence of alibi available to the Appellant has been considered and resolved against him, the Appellant having been fixed at the scene by the eye witnesses to the commission of the crime.
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Furthermore, though the 1st accused and the other accused persons including the Appellant did not raise
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the defence of self defence the lower Court, in inconsonance with the requirement of the law, considered the defences of self defence and sudden fight but rightly found that none avail the Appellant and the other accused persons.
Predicated upon the evidence on record and the absence of any available defence to the accused persons including the Appellant, the lower Court found the Appellant and the other accused persons guilty and accordingly convicted the Appellant and the co-accused for the offences of causing grievous hurt, culpable homicide punishable with death (for the death of Muhammad Aliyu Ango) and criminal conspiracy punishable under Sections 248, 221 and 97 of the penal code.
The Appellant has not been able to show any cogent reason for us to fault the findings and decision of the lower Court or why we should interfere with same. The effect of this is that this appeal is devoid of any merit and deserves to be dismissed. Accordingly, I dismiss the Appeal and affirm the decision of the lower Court including the conviction and sentence of the Appellant as contained in the judgment delivered on
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16/6/2016.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading, in advance, the judgment just delivered by my learned brother, AMINA A. WAMBAI, JCA. I agree with his reasoning and conclusion.
I dismiss the appeal.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment of my learned Brother AMINA AUDI WAMBAI, JCA just delivered and I am in agreement with his reasoning and conclusions in disallowing the Appeal as lacking merit. I abide by the consequential orders made by Court
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Appearances:
Ibrahim Abdullahi, Esq.For Appellant(s)
Almustapha Abubakar, Esq.For Respondent(s)
Appearances
Ibrahim Abdullahi, Esq.For Appellant
AND
Almustapha Abubakar, Esq.For Respondent