BUKAR MUSA v. THE STATE
(2019)LCN/12556(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of January, 2019
CA/J/202C/2018
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“Evaluation of evidence simply means the assessment of Evidence so as to give value or quality to it. See ONWUKA V. EDIALA (1989) 1 NWLR (PART 96) 182 AT 208. In doing this, a judge takes down all relevant evidence which is called perception. After he weighs the evidence in the circumstances of the case which is called evaluation. In the case of BOY MUKA V. THE STATE (1978) 9 & 10 SC. 305 AT 325, the Apex Court said the Court is duty bound to evaluate the whole evidence adduced by the prosecution in order to come to the conclusion that the case has been proved. It is not for the judge to pick and choose which set of the prosecution’s witnesses to belief and which to reject, but must evaluate the totality of the evidence adduced by the prosecution. The judge cannot simply accredit the set of witnesses and discredit the other without cogent action explaining the discrepancy on the testimonies by the witnesses. See ONUBOGU V.THE STATE (1974) 1 SCNJ.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
EVIDENCE: EVALUATION OF WITNESS
“Accordingly, an appellate Court can only make evaluation which are of law and on the basis of pleadings of the parties and the evidence. The appellate Court cannot assess the credibility of witnesses; it does not share this jurisdiction with the trial Court. See: ANYAFULU & ORS V. MEKA & ORS (2014) LPELR – 22336 (SC); IWUOHA & ANOR. V. NIPOST LTD. & ANOR. (2003) LPELR – 1569 (SC);EBBA V. CHIEF WARRI OGODO (1984) 4 SC 84; NARUMAL & SONS V. N.B.T.C. LTD (1989) 2 NWLR (PT. 106) 730. Therefore, in the instant case, if the evaluation of the evidence does not touch on credibility of the witnesses, notwithstanding the fact that the learned trial judge failed to evaluate the evidence adduced, the same can be evaluated even by this Court.” PER UCHECHUKWU ONYEMENAM J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
BUKAR MUSA
(EX-POLICE CORPORAL) Appellant(s)
AND
THE STATE Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Bauchi State in Case No BA/43C/2015 delivered on the 8th day of March, 2018 Coram Hon. Justice Lamido K. Umar. The learned trial Judge at the end of the trial in his considered judgment sentenced the appellant to death by hanging for committing an offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code.
The fact of the case leading to the arraignment and trial of the appellant is as follows.
The appellant and four other police personnel were on duty at a Road block along Kano Road Ningi in Bauchi State on the 6th day of June 2015. While on that duty a trailer with registration number AX150BAU driven by Adamu Ajiyan Pindiga came to the said Road block. The driver was flaged down but refused to stop and allegedly hit one of the drums used as barricade and sped off. The officer in charge of the Road block directed that the trailer should be chased and arrested. The appellant in company of other three police personnel went in their pick up van and chased the trailer to a town called Gudduba near Ningi. The driver was intercepted and halted. In the course of altercations between the driver of the vehicle Adamu Ajiyan Pindiga, and one other occupant of the Trailer, the Appellant was said to have shot the driver in the head and which led to the death of the driver and hence the arrest of the appellant.
Orderly room trial by the police was conducted and the police found the Appellant wanting. He was dismissed from the police and one other officer was demoted from the rank of a sergeant to corporal. There after the appellant was arraigned before the trial High Court Bauchi, tried and sentenced to death by hanging, and hence this appeal.
The grounds of Appeal as contained in the notice of appeal filed on the 23rd April, 2018 are as follows:
GROUNDS OF APPEAL
1) The learned trial Judge erred in Law in resolving issues No. 1 formulated by him in favour of the prosecution when he had not made any finding of fact which suggested that the Appellant was guilty of the offence as charged and this has occasioned a miscarriage of justice.
2) The learned Trial Judge erred in Law in convicting the Appellant for the offence of culpable homicide punishable with death for which he passed a death sentenced on him when he had not found him guilty of the offence and this has occasioned a miscarriage of justice.
3) The learned Trial Judge erred in Law when in his judgment he merely without more, held as follows;
That with (sic) the light of the above mentioned statutory and judicial authorities, Court has hereby convicted the said accused person on the said charges of culpable homicide punishable with death under Section 221 of the Penal Code Law of Bauchi State? and this has occasioned a miscarriage of justice.
4) The Learned Trial Judge erred in Law in convicting and sentencing the appellant without appraising and evaluating the evidence before him as required by law and that has occasioned a miscarriage of justice.
5) The Learned Trial Judge erred in Law in convicting the appellant for the offence of culpable homicide punishable with death when the key ingredients of the offence to wit:
‘That such death was caused by the accused and that the act was done with the intention of causing death.’
Were not proved beyond reasonable doubt.
6) The decision is unreasonable, unwarranted and cannot be supported having regard to the evidence.
RELIEF SOUGHT
To allow the appeal by setting aside the conviction and sentencing of the appellant, and to discharge and acquit the Appellant.
Consequent upon the transmission of the Record of appeal on the 11th day, of May 2018, the Appellant filed his brief of Argument dated 12th June 2018 on the 13th day of June 2018. In the said brief of argument, the learned Counsel representing the Appellant Ben Ogbuchi, Esq., formulated the following issues for the determination of the Appeal.
1) Whether the ingredients of the offence of culpable homicide punishable with death, contrary to Section 221 of the Penal Code were proved by the prosecution beyond reasonable doubt to have warranted the conviction of the Appellant (Ground V and VI)
2) Whether the Learned Trial Judge appraised and evaluated the evidence before convicting the appellant and whether non-evaluation of the evidence has not occasioned a miscarriage of justice to warrant the intervention of the Court of Appeal.
In his own brief of argument dated 11th July 2018 and filed on 12th July 2018, the Learned Principal State Counsel, S. M. Toro Esq., formulated the following issues for determination.
1) Whether the ingredients of the offence of culpable homicide punishable with death, contrary to Section 221 of the Penal Code were proved by the prosecution beyond reasonable doubt to have warranted the conviction of the appellant.
(Grounds (V) and (VI).)
2) Whether the learned trial judge rightly sentenced the appellant to death based on the evidence adduced before him. (Grounds (i) (ii) & (iii).)
Both learned Counsel adopted their respective brief of argument on 31st day of October 2018.
I have carefully read the respective brief of argument by Counsel and the record of appeal. The issues formulated by respective Counsel are similar in substance and in my view designed to achieve the same objective goal. Therefore, I will adopt the issues formulated by the appellant for the determination of this Appeal.
My approach in determining this appeal is to have an over view of the three issues vis-a-vis the complains in grounds 1,2 and 3 which collectively are accusing the learned trial judge of failing to consider and evaluate the evidence before the Court in coming into the conclusion of sentencing the Appellant to death by hanging. The question therefore that I consider pertinent in the circumstance of those grounds of appeal and the issues for determination is whether the learned trial judge did evaluate the evidence before the Court in coming to the conclusion reached.
The judgment of the Court can be found from pages 94-132 of the record of Appeal. My careful reading of the record unveil the following;
Pages 94 to 123 of the record is centered on reproduction of the charge, the plea and evidence of the six witnesses of the prosecution and the testimony of the Accused appellant. There after the learned trial judge in pages 123 -124 formulated two issues for the determination of the case. They are:-
1) Whether from the totality of evidence presented before the Court and the Exhibit tendered admitted before the Court, the prosecutor has established the case of culpable homicide punishable with death against the accused person beyond reasonable doubt as required by Section 221 of the Penal Code Law of Bauchi State.
2) Whether or not as argued by the defence Counsel with Section 48 of the Penal Code Law of Bauchi State applies.
In resolving the forgoing issues, the Court again from pages 125-127 of the record review the evidence in summary and the submission of Counsel. There after the Court from pages 127-128 resolved issues one formulated by the Court on page 128 as follows;
‘That on this point issue one Court resolved the issue in favour of the prosecution.’
From there he proceeded to issue two formulated by the Court. See pages 128-131. On page 131 the Court concluded as follows.
‘That with the light of the above mentioned statutory and judicial authorities Court has hereby convicted the said accused person on the said charges of culpable homicide punishable with death under Section 221 of the Penal Code Law of Bauchi State.’ (I have reproduced the foregoing as stated)
There after the Court continued in the following manner
COURT- ‘Do you (accused person) convict has anything to say before a sentence is passed on to you
SENTENCE:- That Court has hereby pronounced the death sentence on the Convict, that the convict shall be hanged till he is pronounced death. May the Almighty have mercy on your (convict) Soul. Right of Appeal within 90 day.
ACCUSED COUNSEL:- Accused should not have right of any allocutus.
PROSECUTION COUNSEL : Yes
PROSECUTION COUNSEL – God to continue to guide you.
ACCUSED COUNSEL – May God guide you in your carrier.
(The forgoing are reproduced word for word and as they are in the Record of Appeal)
I have reproduced the forgoing so as to bring to lime light what the learned trial Judge did in considering the issues and evaluating them.
Evaluation of evidence simply means the assessment of Evidence so as to give value or quality to it. See ONWUKA V. EDIALA (1989) 1 NWLR (PART 96) 182 AT 208. In doing this, a judge takes down all relevant evidence which is called perception. After he weighs the evidence in the circumstances of the case which is called evaluation. In the case of BOY MUKA V. THE STATE (1978) 9 & 10 SC. 305 AT 325, the Apex Court said the Court is duty bound to evaluate the whole evidence adduced by the prosecution in order to come to the conclusion that the case has been proved. It is not for the judge to pick and choose which set of the prosecution’s witnesses to belief and which to reject, but must evaluate the totality of the evidence adduced by the prosecution. The judge cannot simply accredit the set of witnesses and discredit the other without cogent action explaining the discrepancy on the testimonies by the witnesses. See ONUBOGU V.THE STATE (1974) 1 SCNJ.
In addition to the forgoing, let me add that it is an avowed and age long judicial policy that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary finding on them are matters within the province of the Court of trial which has the singular advantage or is pre-eminently placed of hearing the witnesses testifying and watching their demeanours. See also A. R. MOGAJI & ORS V. MADAM RABIATU ODOFIN & ORS (1978) 4 SC. 91. In my humble view, which is predicated on the forgoing dictum of the Apex Court on evaluation of evidence by the trial Court, the learned trial Court did not evaluate the evidence before the Court in coming to the conclusion reached. In Criminal trial the first thing to consider is whether the prosecution has proved its case and there after the case of the defence is also considered. See DAVID USO V. COP. (1972) 11 SC 371 FEDERAL REPUBLIC OF NIGERIA V. MAGAJI IBRAHIM & 1 OR (2013) LPELR 24231.
In the instant appeal, all what the learned trial Judge did was to summarize restate the evidence before the Court but failed to evaluate the evidence. Mere summarizing and restatement of evidence is not the same and can not take place of evaluation of evidence. See CHIEF NIYI AKINTOLA V. BURAIMOH L. BALOGUN & ORS (2000) 1 NWLR (PART 642) 532 AT 549.
In the light of the forgoing therefore, and considering the nature of the offence which attracts a capital punishment, it will not be proper for this Court that has not seen the witnesses testifying as to how the alledged offence was committed to proceed to evaluate the evidence in the circumstance of this case.
Accordingly therefore, I resolve this issue against the Respondents as it relates to grounds 1, 2 and 3 of the grounds of Appeal.
Having gone thus far, I do not consider it justifiable to consider other issues in this appeal so as to avoid delving into the substance of the case. Rather, I consider it apt in the circumstance to remit the case back for Retrial.
The appeal is allowed, the Judgment of the Bauchi State High Court in case number BA/43C/2015 delivered on 8th day of March, 2018 coram Justice Lamido K. Umar is hereby set aside and the sentence thereto is quashed.
The case is remitted back to the Chief Judge of Bauchi State for reassignment to another Judge other than Justice Lamido K. Umar for expeditions hearing and determination.
The appellant should be rearrested and arraigned forthwith .
UCHECHUKWU ONYEMENAM, J.C.A.: I read before now, the draft judgment in case No. BA/43C/2015. I will like to express my view on the failure of the learned trial Judge to evaluate the evidence of parties and its ensuing consequence.
Generally, the striking important aspect of the duty of the Court in the evaluation of evidence is to decide where the scale preponderates by the qualitative evidence. The adjudicator must hold the scale of justice evenly balanced between the parties so that justice would not only be done but must manifestly be seen to have been done. Howbeit, there is an outstanding difference between the role of a trial Court and that of Appellate Court in the evaluation of evidence.
In the trial Court which has the primary function of fully considering the totality of evidence placed before it, ascribes probative value to it, put same on imaginary scale of justice to determine the party in whose favour the balance tilts, makes the necessary findings of fact flowing therefrom, applies the relevant law to the findings and come to a logical conclusion; the evaluation of evidence remains the exclusive preserve of the trial Court because of its singular opportunity of hearing and watching the demeanour of witnesses as they testify and thus it is the Court best suited to assess their credibility. The appellate Court which deals with records has no business with a finding on credibility of witnesses. Where the nature of the case is such that the evaluation would not entail the assessment of credibility of witnesses and would be confined to drawing inferences and making findings from admitted and proved facts and from contents of documentary evidence, the appellate Court is in as vantage a position as the trial Court to evaluate or re evaluate the evidence and make its own findings. See: CPC V. INEC & ORS. (2011) LPELR – 8257 (SC).
Accordingly, an appellate Court can only make evaluation which are of law and on the basis of pleadings of the parties and the evidence. The appellate Court cannot assess the credibility of witnesses; it does not share this jurisdiction with the trial Court. See: ANYAFULU & ORS V. MEKA & ORS (2014) LPELR – 22336 (SC); IWUOHA & ANOR. V. NIPOST LTD. & ANOR. (2003) LPELR – 1569 (SC);EBBA V. CHIEF WARRI OGODO (1984) 4 SC 84; NARUMAL & SONS V. N.B.T.C. LTD (1989) 2 NWLR (PT. 106) 730. Therefore, in the instant case, if the evaluation of the evidence does not touch on credibility of the witnesses, notwithstanding the fact that the learned trial judge failed to evaluate the evidence adduced, the same can be evaluated even by this Court.
Unfortunately, in this charge against the Appellant which is for offence of culpable homicide punishable with death under Section 221 of the Penal Code for which the Appellant was convicted to death by hanging based on evidence of witnesses which was not evaluated, this Court which did not see, observe nor hear from the witnesses will be taking more than it can chew to try to evaluate the evidence. In a charge for offence as serious as the instant, the credibility of witnesses cannot be undermined. Indeed the failure of the trial Court to evaluate the evidence of the parties is an infringement of their right to fair hearing. The decision of the trial Court cannot stand as the same is a nullity.
It is for all I have said above and for the other reasons adduced by my learned brother MUDASHIRU NASIRU ONIYANGI, JCA in the lead judgment that I also set aside the decision of the High Court of Bauchi State in Case No: BA/43C/2015 delivered on 8th March, 2018.
I abide by the consequential orders made therein in the lead judgment.
TANI YUSUF HASSAN, J.C.A.: I had the advantage of reading before now the lead judgment of my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA, I agree with the reasoning and conclusion reached.
I seek to say few words in support. Put briefly, finding of facts are usually made by the trial Court after cross-examination. Then the trial Court would have had the advantage of watching the demeanour of the witnesses and be in a good position to make correct assessment of the testimony of the witnesses. However, where as in the instant case, there was no assessment of evidence of the witnesses, there is nothing for the appellate Court to make proper inference from the facts.
I abide by the order remitting back the case to the Chief Judge of Bauchi State for re-assignment to another Judge for hearing and determination.
Appearances:
Ben Ogbuchi with him, E. F. AghedoFor Appellant(s)
A. H Umar (SCS, Bauchi Ministry of Justice)For Respondent(s)
