BUSUYI v. STATE (2020)

BUSUYI v. STATE

(2020)LCN/14882(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/AK/18C/2020

RATIO

CONSTITUTIONAL LAW: PRESUMPTION OF INNOCENCE

Under the adversarial criminal legal system of the country Nigeria, an accused person, in the shoes of the Appellant herein, is presumed innocent until proved guilty by a Court of competent jurisdiction.

The presumption of innocence therefore places a burden on the prosecution in the place of the Respondent herein, to prove an offence charged beyond reasonable doubt in accordance with the provision of Section 138 of the Evidence Act, 2011. In the process, the prosecution has to prove all the ingredients of the offence charged, by providing vital evidence of materials and witnesses at the proceedings. PER FOLAYEMI OMOLEYE, J.C.A.

CRIMINAL LAW: THE OFFENCE OF MANSLAUGHTER

Manslaughter could either be involuntary or constructive. Involuntary manslaughter is the accidental killing of a human being, such killing not being premeditated or intentional. Constructive manslaughter is the killing of a human being by an unlawful and dangerous act, that is, in the course of committing another offence, such as battery. Hence, to ground a conviction for manslaughter, the following ingredients must be proved by the prosecution beyond reasonable doubt, viz:

(i) The commission of the unlawful act by the accused person;
(ii) That the unlawful act of the accused person caused the death of the deceased and
(iii) That the unlawful act was dangerous in the sense that it was likely to cause harm to the deceased, whether or not the accused person realised his act is unlawful or dangerous.
It is trite law that, to establish the offence of manslaughter, it is not necessary to prove any intent to kill or do grievous bodily harm, provided there is proof that the unlawful act of the accused person caused some harm to the deceased and resulted in his death. An accused person will therefore be found guilty of manslaughter if it is established that he intentionally committed an act which was unlawful and dangerous which inadvertently caused the death of the deceased. It is equally trite that in determining whether the act is rash, dangerous and unlawful, the test is not that the accused recognised the act as dangerous or rash or unlawful, rather, the test is an objective one. See the cases of: (1) R. V. Church (1965) 2 All E. R. p. 75; (2) Oka v. State (1975) 9-11 S.C. (Reprint) p. 11; (3) Uyo v. A.-G., Bendel State (1986) 1 NWLR (pt. 17) P. 418; (4) Idowu v. State (2000) 7 S.C. (Pt. II) p. 50; (5) Oforlete v. The State (2000) 7 SCNJ p. 162 and (6) Ogbu v. State (2007) 2 S.C. p. 273.

The pieces of evidence which need to be before the Court in order to establish the offence of manslaughter just like any criminal offence can be classified into three viz: (i) direct evidence of an eye witness; (ii) circumstantial evidence and (iii) confessional statement of an accused person. See the cases of: (1) Onyenye v. State (2012) 15 NWLR (Pt. 1324) p. 586; (2) Okiemute v. State (2016) LPELR-40639 (SC); (3) Essien v. State (2017) LPELR-42762 (SC) and (4) Ekpo v. State (2018) LPELR-43843 (SC). PER FOLAYEMI OMOLEYE, J.C.A.

EVIDENCE: STANDARD OF PROOF TO GROUND A CONVICTION FOR THE OFFENCE OF MANSLAUGHTER

Although the standard of proof required to ground a conviction for the offence of manslaughter is proof beyond reasonable doubt, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt, it simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. On the other hand, where on the totality of the evidence adduced, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof with which the law clothed it, thereby entitling the accused person to the benefit of the doubt and resulting in his acquittal. PER FOLAYEMI OMOLEYE, J.C.A.

COURT: PRIMARY DUTY OF THE TRIAL COURT

The law is trite that it is the primary duty of the trial Court, not that of the Court of Appeal, to evaluate evidence and indeed the assessment of credibility of a witness is the prerogative of the trial Court. For it is the trial Court who had the opportunity of hearing the witness tell his story by way of narration or in answer to questions put to him by counsel, and of observing his demeanour and the manner in which he gives his evidence. See the cases of: (1) William v. State (1975) 9-11 SC p. 87; (2) Garba v. State (1997) 3 NWLR (Pt. 492) p. 144; (3) Kwajaffa & Ors. v. B. O. N. Ltd. (2004) 13 NWLR (Pt. 889) p. 146 and (4) Sani v. State (2017) LPELR-43475 (SC). PER FOLAYEMI OMOLEYE, J.C.A.

EVIDENCE: CIRCUMSTANCES MEDICAL REPORT CAN BE DISPENSED WITH IN DETERMINING CAUSE OF DEATH

it is settled law that, as in the instant matter, where the cause of death is apparent or can be inferred from the circumstances of the case and is traceable to the act of the accused person, a medical report can be dispensed with. See the cases of: (1) Lima v. The State (supra); (2) Uyo v. A.-G., Bendel State (supra); (3) Oforlete v. The State (supra); (4) Ogbu v. State (supra) and (5) John v. State (2014) LPELR-23382 (CA). PER FOLAYEMI OMOLEYE, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

ILESANMI BUSUYI APPELANT(S)

And

THE STATE RESPONDENT(S)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ondo State sitting in Akure per Adegbehingbe, J. (hereinafter referred to as “the trial Court”) in suit No. AK/86C/2019 delivered on the 2nd day of December, 2019.

The brief background facts of this matter from the perspective of the Respondent as the prosecution at the trial Court are that; in the early hours of the 13th of December, 2018 at Imo Arigidi Close, Oke – Agbe in Akoko, Ondo State, a fight broke out between the Appellant and one Akeem Olanipekun, now deceased. The Appellant was alleged to have struck the deceased with his fist, sequel to which the deceased fell, was immobilised and died a few hours thereafter. The Appellant was later arrested by the Police, after investigation, he was charged and arraigned before the trial Court on a one-count charge for the offence of manslaughter as follows:
“COUNT 1
STATEMENT OF OFFENCE
MANSLAUGHTER, pursuant to Section 317 and punishable under Section 325 of the Criminal Code, Cap. 37, Vol. 1, Laws of Ondo State, 2006.

PARTICULARS OF OFFENCE
ILESANMI BUSUYI ‘M’ on or about the 13/12/2018 at about 0700hrs, at Imo Arigidi Close, Oke-Agbe Akoko, within the Criminal Division of the Court, beat one Akeem Olanipekun to death with a fist (blow) bearing a (fetish) ring.”

At the trial, the Appellant pleaded not guilty to the offence he was charged with.

The Respondent in its bid to establish the offence against the Appellant, fielded four witnesses and tendered four exhibits.

The Appellant gave evidence in his own defence, called no witnesses and tendered two exhibits during the cross-examination of two of the witnesses of the Respondent. At the close of the cases for the parties, their respective learned Counsel filed, exchanged and adopted their written addresses in substantiation of their varied positions in the case. Consequently, in its considered judgment, the trial Court found that the Respondent proved all the ingredients of the offence of manslaughter against the Appellant beyond reasonable doubt. The Appellant was therefore found guilty of, and convicted for the offence of manslaughter alleged against him and thus sentenced to life imprisonment.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Appellant is dissatisfied with the said judgment of the trial Court and thus filed this appeal against it to this Court vide his Notice of Appeal dated the 20th of December, 2019 filed on the 24th of December, 2019. For ease of reference and good understanding, the twelve grounds of appeal contained in the Notice of Appeal short of their particulars are hereunder reproduced as follows:
Ground One – Error of Law
The Lower Court erred in law when it held at page 30 of the judgment that:
“There is also no merit in the contention of the defence counsel that medical evidence should have been adduced to prove cause of death. A person can be convicted of manslaughter, even where medical evidence is discredited or where there is no medical evidence at all”.
Ground Two – Error of Law
The Lower Court erred in law when it convicted the Appellant for unintentionally causing the death ofthe deceased when there was no evidence led as to the cause of death of deceased.
Ground Three – Error of law
The Lower Court erred in law when it held at page 29 of the judgment that:
“There is no evidence before the

Court to establish that the deceased recovered from his fatal condition after he was given blows by the defendant, until he passed on, in a circumstance in which this Court holds that the death of the deceased is directly and accurately traceable to the act of the defendant in inflicting fist blows on the deceased”.
Ground Four – Misdirection
The Lower Court misdirected itself on the facts by improperly evaluating Exhibit D2 when it held at page 32 of the Judgment that “the defence counsel did not evidentially suggest that anything happened between the period the deceased was taken to his home and the time he died. There is also no evidence before the Court that the deceased ingested any herb or herbal product during the period”.
Ground Five – Misdirection
The Lower Court misdirected itself and speculated on the facts when at page 31 of the Judgment, it concluded that “there is no evidence that the deceased’s health improved until he died about 10 hours later, after the defendant inflicted blows on him”.
Ground Six – Error of Law
The Lower Court erred in law when by holding at

page 33 of the Judgment that:
“This Court therefore infers and holds, from circumstantial evidence before it, that the death of the deceased, was caused by the fist blow or blows inflicted on him by the defendant on 13/12/2018. The issue of fetish or local or juju ring is not central to the cause of death in this case and Exhibit P4 was merely tendered to show that it was recovered from the defendant and not that it killed the deceased” it separated “fist (blow)” from “fetish ring” as stated in the charge against the Appellant, when in fact, the whole case of the Respondent at the Lower Court was predicated on the alleged use of a fetish ring by the Appellant to kill the deceased.
Ground Seven – Error of Law
The Lower Court erred in law when it held that the case against the Appellant was that the Appellant caused the death of the deceased only by inflicting fist blows on him, not by beating the deceased “to death with a fist (blow) bearing a (fetish) ring”, as contained in the charge.
Ground Eight – Error of Law
The Lower Court erred in law when it convicted the Appellant for

manslaughter based on mere suspicion.
Ground Nine – Error of Law
The Lower Court erred in law when it relied on Exhibit “D2”and the testimony of PW3, which lack probative value, to convict the Defendant.
Ground Ten – Error of Law
The Lower Court erred in law when, despite the fact that the Respondent abandoned the charge of manslaughter against the Appellant and moved the Lower Court for an offence of assault occasioning harm, the trial Court went ahead to convict the Appellant for manslaughter.
Ground Eleven – Error of Law
The Lower Court erred in law when it held that the Respondent proved beyond reasonable doubt against the Appellant, all the ingredients of the offence of manslaughter.
Ground Twelve
The Judgment of the Lower Court is unreasonable and unwarranted and cannot be supported considering before the Lower Court.

In obedience to the rules of this Court, briefs of argument were settled, filed and exchanged by the respective learned Counsel for the parties in validation of their varied positions in the appeal.

Mr. Fred Onuobia of the law firm of G. Elias & Co.,

learned Counsel for the Appellant settled the Appellant’s Brief of Argument dated the 12th of February, 2020 filed on the 13th of February, 2020. The four issues donated for determination in the brief read as follows:
“1. Was the trial Court not wrong when it convicted the Appellant for manslaughter when the cause of death of the Deceased was not established? (Distilled from Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal)
2. Was the trial Court not wrong when it held that the local/fetish ring (Exhibit “P4”) is not central to the case against the Appellant, and went ahead to convict the Appellant based on the charge predicated on the use of a local/fetish ring (Exhibit “P4”)? (Distilled from Ground 6 of the Notice of Appeal)
3. Was the trial Court not wrong when it descended into the arena, conducted the Respondent’s case, convicted and sentenced the Appellant to life imprisonment for the offence of manslaughter? (Distilled from Grounds 7 and 10 of the Notice of Appeal)
4. Was the trial Court not wrong when it held that the Respondent proved beyond reasonable doubt against the Appellant, the

offence of manslaughter, and convicted and sentenced the Appellant to life imprisonment? (Distilled from Grounds 8, 9, 11 and 12 of the Notice of Appeal)”

The Respondent’s Brief of Argument dated the 7th of September, 2020, filed on the 8th of September, 2020 was deemed properly filed on the 9th of September, 2020. The brief was settled by the Respondent’s Counsel, Mr. B. V. Falodun, Chief Legal Officer, Ministry of Justice, Ondo State. Set out hereunder are the four issues identified for resolution in the brief thus:
“(a) Whether or not the Respondent/Prosecution proved the offence of manslaughter beyond reasonable doubt against the Appellant to warrant his conviction and sentence by the trial Court?
(b) Whether or not the conviction of the Appellant by the trial Court was predicated on the use of a local fetish ring by the Appellant on the deceased?
(c) Whether or not the trial Court descended into the arena and conducted the Respondent/Prosecution’s case before it convicted and sentenced the Appellant to life imprisonment for the offence of manslaughter?
(d) Whether or not the cause of death of

the deceased was established by the trial Court before it convicted the Appellant?”

I have scrutinized the two sets of issues submitted for determination by the parities in their respective briefs of argument, found that they are identical in their cognitive contents and apt for the resolution of appeal. The Appellant being the aggrieved party, I shall adopt the four issues contained in his brief in resolving the appeal which was heard by this Court on the 9th of September, 2020. It is pertinent to state that at the said hearing of the appeal, the Counsel for the parties adopted their respective briefs of argument and urged upon this Court to hold in favour of their opposing stances in the appeal.

Since issues 1, 2 and 4 are intertwined, I will consider and determine them together, while issue 3 will be considered and resolved separately.

ISSUES ONE, TWO AND FOUR
“1. Was the trial Court not wrong when it convicted the Appellant for manslaughter when the cause of death of the deceased was not established? (Distilled from Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal)
2. Was the trial Court not wrong when it held that

the local/fetish ring (Exhibit “P4”) is not central to the case against the Appellant, and went ahead to convict the Appellant based on the charge predicated on the use of a local/fetish ring (Exhibit “P4”)? (Distilled from Ground 6 of the Notice of Appeal)
4. Was the trial Court not wrong when it held that the Respondent proved beyond reasonable doubt against the Appellant, the offence of manslaughter, and convicted and sentenced the Appellant to life imprisonment? (Distilled from Grounds 8, 9, 11 and 12 of the Notice of Appeal.)”

THE SUMMARY OF THE APPELLANT’S COUNSEL’S SUBMISSIONS
The learned Counsel restated the legal principles that, an accused person standing trial is presumed innocent until proven guilty and the prosecution has the ultimate burden of proving the guilt of an accused person in a criminal trial. The standard required to discharge this burden is proof beyond reasonable doubt. See the provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 135 of the Evidence Act, 2011 and the cases of: (1) State v. Onyeukwu (2004) All FWLR

(Pt. 221) p. 1388 at p. 1425 and (2) Igabele v. State (2004) 15 NWLR (Pt. 896) p. 314 at p. 344.

In order to sustain a charge of manslaughter, the accused must be shown to be guilty of an unlawful act which results in the unintentional death of another person. Reliance was placed on the cases of: (1) Egbirika v. The State (2014) 4 NWLR (Pt. 1398) p. 558 at p. 578 paras. G-H (SC); (2) Nwolisa v. The State (2015) LPELR – 24371 (CA) and (3) Apugo v. State (2006) 15 NWLR (Pt. 1002) p. 227. It must thus be clearly proved that the accused intentionally did an act which was unlawful and that the act inadvertently caused death. Cogent and sufficient evidence must be led by the prosecution to enable the Court convict for the offence of manslaughter.

Further, the law in respect of the offence of manslaughter is that the prosecution must prove beyond reasonable doubt the death of the deceased and the act or acts of the accused which caused the deceased the injuries from which he died. See the case of: Nwoku v. The State (2017) LPELR – 42925 (CA).

In the instant case, it is pertinent to note that throughout the trial, no evidence was led by the

Respondent to show the cause of death of the deceased or that the Appellant was wearing a “local fetish ring” on the day of the alleged incident, especially at the time when he fought with the deceased or that the Appellant and no other person hit the deceased with a “local fetish ring”. Evidence was also not led by the Respondent to show that, the deceased died as a result of being hit by a “local fetish ring” or that the ring used by the Appellant is indeed Exhibit “P4” and no other one or that the deceased did not die from the complications arising from the local herbs which the deceased may have taken. Contrariwise, the circumstantial evidence relied upon by the Respondent is highly unlikely, remote, has no legal basis and does not conclude irresistibly that the deceased died as a result of the incident that allegedly occurred on December 13, 2018.

Based on the testimonies of the Respondent’s witnesses, there was no apprehension of death when the deceased was taken home after the fist fight between him and the Appellant.

It is also pertinent to note that PW3 and the other workers of PW1 who

were involved in the alleged fight were neither arrested nor charged. This amounts to suspicion, and created doubts in the case of the Respondent which the trial Court should have resolved in favour of the Appellant. The law is trite that, no matter how strong, mere suspicion can never ground a conviction in the absence of cogent and compelling evidence. See the cases of: (1) Osho v. The State (2011) LPELR – 4804 (CA) at p. 59G – 60A; (2) Adeniyi v. Governing Council Yabatech (1993) 6 NWLR (Pt. 300) p. 426 at p. 432; (3) Ojukwu v. The State (2001) LPELR – 10811 (CA); (4) Clark v. The State (1986) 4 NWLR (Pt. 35) p. 381 at p. 394 and (5) Sule Ahmed v. The State (2001) LPELR – 262 (SC).

The law is also trite that, where a witness has given a testimony in Court which is inconsistent with a previous statement which he had made, a Court is entitled to treat both his testimony at the trial and the previous statement as of little or no probative value. In this wise, counsel relied on the cases of: (1) Obri v. The State (1997) LPELR – 2194; (2) Shofolahan v. The State (2013) LPELR – 20998 (CA); (3) Onubogu v. The State (1974) 9 SC 1

at P. 19 and (4) Ibe v. the State (1993) 7 NWLR (Pt. 304) p. 184 at p. 146. Hence, in view of Exhibits “D1 and D2”, the testimonies of PW1 and PW3 should have been expunged from the Records by the trial Court. This Court equally has the power to expunge the evidence of PW1 and PW3 and Exhibits “D1” and “D2” from its record as being patently inadmissible and unreliable. Reference was made to the cases of: (1) NIPC Ltd. v. Thompson Organization Ltd. (1969) 1 NMLR 99; (2) Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) p. 307 at p. 354 paras. A-D; (3) Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) p. 1 and (4) Alhaji Safianu Aminu v. Isiaka Hassan (2014) LPELR-22088. For had the trial Court not admitted and placed much weight on the evidence of PW1, PW3 and Exhibits “D1” and “D2”, it would not have held that the Appellant was guilty of the offence of manslaughter. For the testimonies of PW1 and PW3 and Exhibits “D1” and “D2” appear primarily to be the basis of the judgment of the trial Court.

Moreover, the testimonies of PW1, PW2 and PW3 are hearsay, inadmissible and should have

been discountenanced by the trial Court. The law is indeed trite that hearsay evidence is inadmissible, no matter how well told or properly structured. Hence, where a Court of law has relied on hearsay testimony led on behalf of a party to make findings, whether or not the findings are prejudicial to the other party, such findings or decisions made thereupon shall be set aside by the appellate Court. See the cases of: (1) Kasa v. State (1994) LPELR-1671 (SC) and (2) Ijioffor v. The State (2001) 9 NWLR (Pt. 718) p. 371.

Furthermore, the trial Court ought to have believed the Appellant’s testimony, as the said testimony was consistent with all his extra judicial statements made to the Police. The Appellant maintained that he neither possessed nor used any fetish ring to hit the deceased. Failure of the Respondent to cross-examine the Appellant on those material points means that the testimony of the Appellant should have been accepted as true by the trial Court. The law is trite that where a party fails to cross-examine a witness on a material fact, his silence will be taken as acceptance of that material fact. See the cases of: (1) Isah v. The State

(2017) LPELR-43472 (SC); (2) Ibe v. Ibhaze (2016) LPELR – 41556 (CA) and (3) Ola v. State (2018) LPELR – 44983 (SC).

It was conceded that, it is not the requirement of the law that the cause of death must always be proved by medical evidence. For instance, medical evidence of cause of death will not be required where the cause of death can be established by sufficient, satisfactory and conclusive evidence or if the deceased died in the course of the act of his assailant. However, in the instant case, there is no sufficient, satisfactory and conclusive evidence to establish the cause of death of the deceased. Further, there is no evidence that the deceased died in the course of the alleged act of the Appellant. What is more, considering the circumstances surrounding the death of the deceased, medical or scientific evidence was required to ascertain the true cause of his death. The absence of such evidence created reasonable doubt in the Respondent’s case before the trial Court. PW4 testified that, the right hand of the deceased corpse was black. Also, when shown the corpse of the deceased in the mortuary, the Appellant said it was not

the person he fought with. The Respondent did not adduce evidence that the right hand of the deceased was black after the alleged fight and at the time he was taken away from the scene of the fracas to his home. The deceased’s black hand may therefore not be related to any injury sustained by the deceased during the fracas. Moreover, PW2 testified that, apart from the foam in his mouth, there was no sign of injury on the deceased’s body after the alleged fight with the Appellant. There was also no explanation for the cause of the foaming. Medical evidence was required and vital to explain the blackened hand and foaming. It is settled law that a vital witness is one whose evidence may determine a case one way or the other. Where a vital or material witness fails to testify, such failure would therefore be fatal to the party’s case. See the cases of: (1) State v. Nnolim (1994) 5 NWLR (Pt. 345) p. 394; (2) Musa Omika v. Alhaji Mallam Uba Isah (2011) LPELR – 4564 (CA) 32; (3) Adamawa v. Ware (2006) 4 NWLR (Pt. 970) p. 399 and (4) Okpokam v. Treasure Gallery Ltd. (2017) LPELR – 42809 (CA).

The trial Court was thus wrong when it

held that medical evidence was not required to establish the cause of death of the deceased in those circumstances most especially as there was no evidence of the well-being and whereabout of the deceased about ten or more hours between the time of the fight and the time he finally died. There was a great lacunae in the Respondent’s case and the Respondent cannot be said to have been proved the alleged offence of manslaughter against the Appellant beyond reasonable doubt. See the cases of: (1) Ahmed v. The state (1999) 7 NWLR (Pt. 612) p. 641 at 672 and (2) Arehia v. State (1982) 4 SC 78.

Moreover, the law is well settled that it is not the duty of the trial Court to supply the missing details in the Respondent’s case. In the present case, the trial Court engaged in speculation when it held that, there was no evidence before the Court to establish that the deceased recovered from his fatal condition after he was given fist blows by the Appellant until he passed on and that in the circumstance, the death of the deceased was directly and accurately traceable to the act of the Appellant.

The law is well settled that findings of facts and

conclusions from facts by a trial Court should be based on evidence adduced before the Court and not on speculation or possibilities. See the cases of: (1) Ahmed v. The State (supra) at 672 and (2) Enugu State Civil Service Commission v. Geofrey (2006) LPELR – 7638 (CA). Contrary to the findings of the trial Court, there was no evidence before it that the deceased was in a fatal condition after the alleged fight. From the evidence of PW3 and PW1, it is clear that the deceased was not in a fatal condition after the fist fight. Although appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a trial Court, a Court of Appeal will interfere with the performance of that exercise if the trial Court had made imperfect and improper use of the opportunities of hearing and seeing of the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support, as in the present matter. See the case of: Ahmed v. The State (supra).

Hence, since the evidence led by the Respondent’s witnesses disclosed that the deceased asked to be taken home to use herbs, the presumption of

common course of natural events and human conduct should have been invoked in favour of the Appellant, as there was no evidence that the deceased either did not use herbs to subdue the power of the fetish ring when he got home after the fracas. In the absence of any contrary evidence led by the Respondent, the trial Court was bound to presume, find and hold that the deceased got home in good condition and ingested local herbs. The trial Court was thus wrong to hold that there was no evidence before it that the deceased ingested herbs. What is more, it was not the duty of the Appellant to prove that the chain of causation was not broken, rather it was the duty of the Respondent to do so. See the cases of: (1) Ogbuanyinya v. Okudo (1990) LPELR – 2294 (SC) and (2) S.G.B.N. Ltd v. Bremar Holding Ltd. (2001) 14 NWLR (Pt. 734) p. 720.

In a case of homicide such as the instant one, it is vital for the Respondent to show the cause of death of the deceased to the exclusion of all other causes. See the cases of: (1) Emiowe v. The State (1999) LPELR – 5612 (CA); (2) Olabode v. State (2007) All FWLR (Pt. 389) p.1301 at p. 1323 and (3) Shosimbo v. The State (1974) LPELR – 3066 (SC).

On the charge preferred against the Appellant, the information is to the effect that the Appellant dealt the deceased with a fist blow while he bore a fetish ring. The wordings of the information are unambiguous. The statement of offence is not disjunctive. The whole case of the Respondent against the Appellant at the trial Court was predicated on the alleged use of a fetish ring by the Appellant to kill the deceased. Charms are within the realm of superstition. It is trite that superstition has no legal basis and cannot be logically proved either. On this position, see the cases of: (1) Usman Acida v. King (1950) 13 WACA p. 48 at p. 52; (2) Gadam v. The Queen (1954) 14 WACA, p. 442; (3) Ihonre v. The State (1987) 4 NWLR (Pt. 67) p. 778 at p. 784, paras. D-E and (4) Oviefus v. The State (1984) 10 SC p. 207 at p. 264. The conviction of the Appellant solely on the assumption that he hit the deceased with Exhibit “P4” therefore has no place in judicial deliberations and thereby occasioned a grave miscarriage of justice to the Appellant. This means that the Respondent failed to establish the causal link

between the alleged illegal act of the Appellant and the death of the deceased. The law is well developed on the proof of offence of manslaughter that, the prosecution has a duty to establish beyond reasonable doubt that the accused person caused the death of the deceased by tracing a causal link between the death of the deceased and the act or omission of the accused person. On this legal position, see the cases of: (1) Sowemimo v. The State (2004) LPELR-3108 (SC); (2) Aiguoreghian v. The State (2004) 3 NWLR (Pt. 860) p. 367 at p. 418, paras. F-H and (3) Omogodo v. The State (1981) 12 NSCC p. 119 at p. 128.

On the issue of sentencing, Counsel opined that the trial Court should not have imposed the maximum punishment of life imprisonment for an offence of manslaughter, on the Appellant in defiance of the provision of Section 384 (2) (iv) of the Administration of Criminal Justice Law of Ondo State, 2015. Section 384 (2) (iv) clearly states that, a trial Court ought not to pass the maximum sentence on a first offender. In the instant case, Counsel for the Appellant duly informed the trial Court that the Appellant is a first offender. Nonetheless, the trial Court

did not consider this fact, but it imposed the maximum punishment on the Appellant. This Court is urged to set aside the judgment of the trial Court for this reason and consequently discharge the Appellant.

THE SUMMARY OF THE RESPONDENT’S COUNSEL’S SUBMISSIONS
The learned Counsel restated the legal definition of manslaughter as the offence of an unlawful act, which result in an unintended or accidental death of another. It is an unlawful homicide without malice aforethought. To sustain a conviction for the offence of manslaughter, it must be established beyond reasonable doubt that it was the act of the accused that caused the death of the deceased, that is, a causal link between the death and the act must also be established. See the case of: Sowemimo v. State (2004) 11 NWLR (Pt. 885) p. 515 at p. 534.
To prove the offence of manslaughter, the following ingredients must be established:
(a) That the deceased died;
(b) That the killing of the deceased was not authorized or not justified or not excused by law and
(c) That it was the unlawful act of the defendant that inadvertently caused the death of the deceased.

On this legal position, see the cases of: (1) Ajisogun v. State (1998) 13 NWLR (Pt. 581) 236 at 243; (2) Odido v. The State (2012) 9 ACLR 480 at 518 and (3) Amayo v. State (2008) 6 ACLR 416 at 438.

The prosecution can prove the above ingredients by either of the following ways:
(a) Evidence of eyewitness of the crime which is referred to as direct evidence;
(b) Confessional statement of the accused person and
(c) Circumstantial evidence.

On the first ingredient, there is no contention by the Appellant that the deceased did not die. In Exhibit D2, PW3 stated that he identified the corpse of the deceased to the Police. PW1 and PW4 also gave evidence to the effect that they went to the mortuary in company of the defendant to see the corpse of the deceased. By the facts adduced by the prosecution, the trial Court rightly held that Akeem Olanipekun died.

On the second and the third ingredients, the evidence of PW1 and PW3 is that the Appellant dealt on the deceased fist blows that inadvertently caused the death of the deceased.

The killing of the deceased by the Appellant was not authorized or justified by law and it was

the act of the Appellant that inadvertently caused the death of the deceased.

In Exhibit D2, which is the extra-judicial statement of PW3 to Police, the PW3 stated how the Appellant came to where PW3 and the deceased were erecting a canopy for a burial ceremony at Imo Quarter, Arigidi – Akoko, to demand for payment of land rent (Owo Ile) from the owner of the canopy. Hence, the Appellant started the fight in which there was exchanged of fist blows by the deceased and Appellant. The deceased fell down under the blows of the Appellant, and became immobile. At the request of the deceased, PW3 took the deceased to his home and when he called the deceased on phone some hours later to ask after his health, he was informed that he had died.

The trial Court after proper evaluation of the evidence of the prosecution rightly held that there was consistency and no contradiction in the sworn evidence of PW3 and his extra judicial statements to the Police on any material facts, regarding how the Appellant started a fight, which ensued between him and the deceased in which they both exchanged fist blows. In the Appellant’s extra judicial statements to the

Police, that is, Exhibits P2 and P3, he admitted that he was involved in a fight on 13/12/2018 at the venue of a burial, which is consistent with the evidence of PW3. The trial Court also properly held in this regard.

The evidence of PW3 who was an eyewitness to the incident that the deceased fell down and became immobile after being dealt fist blows by the Appellant during a fight initiated by the Appellant was not challenged by the defence. There is no doubt that it was the act of the Appellant that caused the death of the deceased. Hence, the Respondent proved the offence of manslaughter beyond reasonable doubt against the Appellant to warrant his conviction and sentence by the trial Court.

What is more, the fact that the deceased collapsed at the scene of the fist fight and became immobile immediately, was a clear evidence of serious injury sustained from the blows inflicted on him by the Appellant. It was PW3 who drove the deceased home in his immobile condition and the deceased died about ten hours after the incident.

Contrary to the contention of the Appellant’s counsel that medical or scientific evidence was required to ascertain

the cause of death of the deceased, the law is well settled beyond any equivocation that, medical evidence as to cause of death in a case of manslaughter is only desirable and not essential. For the cause of death can be inferred from the circumstances of a case. See the cases of: (1) Sowemimo v. State (2004) 11 NWLR (Pt. 885) p. 515 at p. 434; (2) Ogbu v. State (2007) 5 NWLR (Pt. 1028) p. 635 and (3) Ahmed v. State (2002) FWLR (Pt. 90) p. 1358.

Furthermore, the eyewitness accounts of PW1 and PW3 before the trial Court that the deceased fell down and became immobile after being given fist blows by the Appellant in the course of a fight provoked by the Appellant was not challenged or discredited under cross examination.

The principle of causation dictates that an event is caused by the act proximate to it all in the absence of which the event would not have happened. Moreover, the Appellant must take the deceased his victim as he found him. On this stance, see the case of: Uyo v. A/G Bendel State (1986) 1 NWLR (Pt. 17) p. 418 and Sections 312, 313 and 315 of the Criminal Code of Ondo State, 2006. The trial Court was therefore right when it held that

from circumstantial evidence before it, the death of the deceased was caused by the fist blow or blows inflicted on him by the Appellant on 13/12/2018.

The contention of the Appellant’s counsel that the presumption of common course of natural events and human conduct should have been invoked in favour of the Appellant is misplaced, as there was no evidence to show that the deceased ingested local herbs to subdue the power of the fetish ring wore by the Appellant at the time of the brawl, recovered from him during investigation by the Police and tendered in evidence at the trial. Under cross-examination, PW3 maintained that he did not know if the deceased actually ingested local herbs.

The contention of the Appellant’s counsel that there was no evidential account of the ten hours preceding the death of the deceased and as such that there was a lacunae in the evidence of the prosecution is also misconceived. PW3 gave evidence that he took the deceased home because the deceased was paralyzed after the Appellant inflicted fist blows on him. The PW3 only got to know that the deceased had died when he called some hours later that day to ask

after his health. The prosecution did not have to manufacture evidence to fill up space.

Counsel contended that the conviction of the Appellant by the trial Court was not predicated on the use of a fetish ring by the Appellant on the deceased as proposed by Appellant’s counsel. The main allegation was that the Appellant used his fist to deal blows on the deceased. The case for the prosecution was that, it was the force of the fist blows inflicted on the deceased by the Appellant that killed the deceased. However, the Appellant was said to be wearing a fetish ring at the time and not that it was the fetish ring that killed the deceased. Moreover, PW1 and PW3 merely stated that the deceased told them that the Appellant wore a fetish ring during the fracas. However, what PW1 and PW3 witnessed was the Appellant inflicting fist blows on the deceased which caused him to fall down and become paralyzed.

RESOLUTION OF ISSUES 1, 2 AND 4.
Under the adversarial criminal legal system of the country Nigeria, an accused person, in the shoes of the Appellant herein, is presumed innocent until proved guilty by a Court of competent jurisdiction.

Hence, in order to ground a conviction for the offence of manslaughter, the prosecution in this appeal, the Respondent must prove beyond reasonable doubt, that it was the unlawful act of the accused person, in this appeal, the Appellant, that caused the death of the deceased. Manslaughter could either be involuntary or constructive. Involuntary manslaughter is the accidental killing of a human being, such killing not being premeditated or intentional. Constructive manslaughter is the killing of a human being by an unlawful and dangerous act, that is, in the course of committing another offence, such as battery. Hence, to ground a conviction for manslaughter, the following ingredients must be proved by the prosecution beyond reasonable doubt, viz:

(1986) 1 NWLR (pt. 17) P. 418; (4) Idowu v. State (2000) 7 S.C. (Pt. II) p. 50; (5) Oforlete v. The State (2000) 7 SCNJ p. 162 and (6) Ogbu v. State (2007) 2 S.C. p. 273.

to discharge the burden of proof with which the law clothed it, thereby entitling the accused person to the benefit of the doubt and resulting in his acquittal.

The first and third ingredients as stated above are intertwined. That is, the requirements that the unlawful act of an accused person was intentionally committed. That the unlawful act was dangerous and in the opinion of a reasonable man likely to cause some harm to the deceased. In establishing these ingredients, the Respondent presented direct evidence of an eye-witness, PW3. The eye witness account of PW3 is that there was an argument between the Appellant and the deceased leading to exchange of fist blows between them. However, the deceased was knocked down nearly unconscious by the fist blows of the Appellant. The learned trial Judge, after evaluating the evidence of PW3 alongside that of the other witnesses of the Respondent and Appellant, found that the Appellant hit the deceased with his fist. That the encounter which led to the act, fighting in a public place, is unlawful. I am at one with the foregoing findings of the trial Court in this regard. There is no question that the Appellant

intentionally hit the deceased with his fist so hard that the deceased collapsed. This is no doubt a dangerous act. As stated hereinbefore, it is immaterial that the Appellant might not have intended to kill or cause grievous bodily harm to the deceased. However, the act of the Appellant of hitting the deceased with his fist more than once is reasonably intended to cause some harm to the deceased.

The sworn evidence of the Appellant that the deceased was hit by another person during the fracas between his group and the deceased’s group is contradictory to his extra judicial statement Exhibit P3 wherein he stated that he was not in company of any group at the time the fight ensued between him and the deceased. What is more, the evidence of PW3 clearly laid to rest the issue as his eye-witness and direct account is that the Appellant was the actual person who dealt fist blows to the deceased.

The Appellant’s counsel generally attempted to impugn the credibility of PW3. The oral evidence of PW3 is contained in pages 32 to 34 of the Record of Appeal. I have also scrutinised his extra-judicial statement Exhibit P3. Regarding the alleged

inconsistency in the sworn evidence and extra-judicial statement of PW3, the trial Court at page 128 of the Record of Appeal held as follows:
“It is apparent that there was consistency, and no contradiction, between the evidence of PW3 and his statement to the Police, on material facts, regarding how the defendant started a fight, which ensued between himself and the deceased, in which they both exchanged blows. The defendant came to where PW3 and the deceased were working to erect a canopy for a burial at Imo Quarter, Arigidi Akoko, to demand for payment of land rent (Owo Ile) from the owner of the canopy, which made the defendant out as one who was out to extort money from the owner of the canopy and intending to cause trouble.”

I agree with above stated view of the trial Court, it is borne out from a proper assessment of adduced evidence. Moreover, the trial Court clearly stated that it believed the evidence of PW3 and disbelieved the evidence of the Appellant.

The law is trite that it is the primary duty of the trial Court, not that of the Court of Appeal, to evaluate evidence and indeed the assessment of credibility of a witness is the

prerogative of the trial Court. For it is the trial Court who had the opportunity of hearing the witness tell his story by way of narration or in answer to questions put to him by counsel, and of observing his demeanour and the manner in which he gives his evidence. See the cases of: (1) William v. State (1975) 9-11 SC p. 87; (2) Garba v. State (1997) 3 NWLR (Pt. 492) p. 144; (3) Kwajaffa & Ors. v. B. O. N. Ltd. (2004) 13 NWLR (Pt. 889) p. 146 and (4) Sani v. State (2017) LPELR-43475 (SC).

In sum and from the foregoing clarification, it is my firm view and I hold that the fist and third ingredients were established beyond reasonable doubt by the Respondent against the Appellant.

The second ingredient is proof that the unlawful act of the Appellant caused the death of the deceased. To put it in other words, where it is alleged as in the instant matter that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceedings beyond reasonable doubt. See the cases of: (1) Oforlete v. The State (Supra) and (2) Sowemimo & Anor. v. State (2004) 11 NWLR (Pt. 885)

515. On this all important ingredient, the trial Court at pages 134 to 136 of the Record of Appeal found as follows:
In the peculiar circumstances of this case, there is eyewitness evidence from PW3 before the Court, which remained unchallenged, that the deceased fell down and became immobile after being given blows by the defendant in the course of a fight, initiated or provoked by the defendant. The deceased had to be helped/taken home by PW3 because the deceased could no longer move by himself or stand up. There is no evidence that the deceased’s health improved until he died about 10 hours later, after the defendant inflicted blows on him. The defendant’s counsel submitted that the prosecution ought to have adduced evidence of what happened in the intervening hours between when the deceased was taken home and when he died. The view of the Court is that the prosecution does not have to adduce evidence of what did not happen, in the peculiar circumstances of this case. The deceased demanded to be taken home when he became immobile or paralyzed. If nothing happened until he died, the prosecution does not have a duty to manufacture evidence to

fill up space. The defence counsel did not evidentially suggest that anything happened between the period the deceased was taken to his home and the time he died. …This Court therefore infers and holds, from circumstantial evidence before it, that the death of the deceased was caused by the fist blow or blows inflicted on him by the defendant on 13/12/2018.
Again, I am at one with the foregoing set out findings of the trial Court. As properly found by the trial Court, the evidence of PW3 is conclusive that the Appellant dealt fist blows to the deceased thereby causing the deceased to collapse. He was taken to his house where he died only about ten hours thereafter. The suggestion by the Appellant’s counsel that there was an intervening event being an assertion by him, it legally behoved him in tune with the provision of Section 135 of the Evidence Act (supra) to have adduced evidence to establish the alleged claim. For he who asserts the existence of a fact must prove that the fact exist. Moreover, the Appellant was perfectly legally entitled at his trial to call witnesses of his own in defence of the charge

against him. See the cases of: (1) Elias v. Disu & Ors. (1962) LPELR-25114 (SC); (2) Kalu v. Uzor (2006) 8 NWLR (Pt. 981) p. 66; (3) Ali & Anor. v. Osakwe & Ors. (2011) 7 NWLR (Pt. 1245) p. 68 and (4) Mohammed v. Wammako & Ors. (2017) LPELR-42667 (SC).
There is no question regarding the causal linking between the death of the deceased and the unlawful act of the Appellant. There is sufficient proof that the unlawful act of the Appellant caused some harm to the deceased which caused the death of the deceased.
The suggestion by the Appellant’s Counsel that there was no visible body injury on the deceased is of no moment as an injury could be internal and concealed.

The Appellant’s counsel had hammered vehemently on the fact that the Respondent did not adduce medical evidence regarding the causal link between the act of the Appellant and the death of the deceased. Although in the instant case, there was indeed no medical report as to the cause of death of the deceased, it is settled law that, as in the instant matter, where the cause of death is apparent or can be inferred from the circumstances of the case and is

traceable to the act of the accused person, a medical report can be dispensed with. See the cases of: (1) Lima v. The State (supra); (2) Uyo v. A.-G., Bendel State (supra); (3) Oforlete v. The State (supra); (4) Ogbu v. State (supra) and (5) John v. State (2014) LPELR-23382 (CA).
The trial Court therefore in the absence of a medical report, properly inferred the cause of death of the deceased from the evidence adduced by the Respondent and circumstances of the case. In the case of: Uguru v. State (2002) 9 NWLR (Pt. 771) p. 90, the Apex Court per Kalgo, J.S.C. (Rtd.) stated on this subject as follows:
Medical evidence is not essential in all cases to prove the cause of death …….. for example where a person was attacked and he or she dies immediately or so soon after the infliction of the injury on him or her, medical evidence is not necessary to prove the cause of the person’s death. The cause of death in that case is the injury inflicted on the person and the accused who inflicted the injury is guilty of the offence charged.
As reproduced hereinbefore, the trial Court inferred and I agree “in toto” with it that,

from the circumstantial evidence before it, the death of the deceased was caused by the fist blows inflicted on him by the Appellant. The proposition made for the Appellant that his conviction was based on mere suspicion is so grossly misconceived.

As stated hereinbefore, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. Rather, as long settled by the Apex Court and followed by this Court, proof beyond reasonable doubt simply means establishing the guilt of the accused person with compelling and conclusive evidence and a degree of compulsion which is consistent with a high degree of probability. See the cases of: (1) Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) p. 170; (2) Agu v. State (2017) LPELR – 41664 (SC) and (3) Galadima v. State (2017) LPELR – 43469 (SC). The principle of law holds sway in the circumstances of the instant case.

I hold therefore that the second ingredient of causal link between the unlawful act of the Appellant and the death of the deceased was proved by the Respondent beyond reasonable doubt.

On the glib attempt by the Appellant to set up a defence of self-defence

at his trial, the trial Court held as follows:
The defendant attempted to set up a defence of self-defence in his statements to the Police and at the trial. Self-defence in an appropriate case is a complete answer to a charge of murder or manslaughter. However, for a defendant to avail himself of this defence, he must show that his life was so much endangered by the act of the deceased that the only option that was open to him to save his own life was to kill the deceased. He must show that he did not want to fight and that he was at all times material prepared to withdraw. … It is the view and holding of this Court that the defendant cannot be covered by the defence of self-defence in this case because it was the defendant who provoked or initiated the attack on the deceased, who was at work, while on a private business. It was the defendant, who unjustifiably wanted to collect rent over land he did not own, in a circumstance, which showed the defendant as a lawless person. The defendant was not defending himself on 13/12/2018 but initiated assault on an innocent person, which led to the death of the deceased. The evidence of the

defendant that he was beaten by PW1’s other workers on 13/12/2018, is baseless, a simulated story, based on falsehood and not believed by this Court. This Court believes the evidence of PW3 and disbelieves the evidence of the defendant.
I am at one with the above reproduced findings and opinion of the trial Court. If anything, the Appellant was the aggressor on the day in question. There was nothing in the evidence adduced and accepted by the trial Court that could avail the Appellant of the defence of self-defence. The evidence of PW3 is that the Appellant and the deceased exchanged fist blows. Apparently, the Appellant’s blows were stronger than those of the deceased and of greater degree of force than was necessary in the circumstance and thereby caused the deceased some harm which resulted in his eventual death. In the instant case, the trial Court after considering all the evidence adduced, was entitled in law and righty rejected the proposition of the defence of self-defence raised by the Appellant and to convict him of manslaughter.

The learned Counsel for the Appellant also laboured greatly but in vain in my firm opinion

that the trial Court erred when it held that Exhibit P4, a local/fetish ring allegedly wore by the Appellant at the time he dealt the fist blows on the deceased was not central to the case against the Appellant. It is also my firm view and I hold that, indeed the issue of Exhibit P4 was not pivotal to the case of the Respondent against the Appellant. Although Exhibit P4 was recovered from the Appellant by the Police during their investigation and tendered in evidence, the evidence adduced by the Respondent was not geared towards a proposition that Exhibit P4 was the cause of death of the deceased, rather, the case of the Respondent was that the deceased collapsed and later died after being hit with fist blows by the Appellant.

Sequel to the foregoing illumination, it is crystal clear that issues 1, 2 and 4 do not avail the Appellant and are therefore resolved against him and in favour of the Respondent.

ISSUE THREE
Was the trial Court not wrong when it descended into the arena, conducted the Respondent’s case, convicted and sentenced the Appellant to life imprisonment for the offence of manslaughter? (Distilled from Grounds 7 and 10 of the Notice of Appeal).

THE SUMMARY OF THE APPELLANT’S COUNSEL’S SUBMISSIONS
Counsel reiterated that the law is that a judge should remain an impartial and fair arbiter. No matter how knowledgeable a Judge may be, the Judge should maintain an impartial and unbiased position and allow the parties make and present their cases. The Court as an impartial arbiter or umpire does not make a case for either of the parties before it and in the course of its duty of adjudication, it must avoid doing or saying anything capable of plunging it into the arena of the contest. See the cases of: (1) Pam v. Abu (2013) LPELR-21406 (CA); (2) Onuigwe v. Emelumba (2008) 9 NWLR (Pt. 1092) P. 371 and (3) The State v. Emine (1992) LPELR-3218 (SC). In the opinion of Counsel, the trial Court descended into the arena of the case on at least two occasions. Firstly, the trial Court separated “fist blow” from the “fetish ring” as stated in the charge against the Appellant and relied on that distinction to convict the Appellant. Secondly, the trial Court convicted the Appellant for the offence of manslaughter despite the fact that the

Respondent tacitly abandoned the charge of manslaughter and moved the trial Court to convict the Appellant for the offence of assault occasioning harm. It was not the duty of the trial Court to conduct the Respondent’s case on behalf of the Respondent. The trial Court evaluated the Respondent’s case, determined which way it could be best prosecuted and proceeded as such. That is not the duty of a Court of law.

THE SUMMARY OF THE RESPONDENT’S COUNSEL’S SUBMISSIONS
Counsel argued that there is no proof anywhere in the Record of Appeal that the trial Court conducted the Respondent’s case. The duty of the Court is to ensure that justice is done in any case it adjudicates upon. The trial Court has a duty to evaluate the evidence of the prosecution and the defence, this was what the trial Court did in the present case before arriving at a just decision. He referred to pages 104 to 138 of the Record of Appeal.
The trial Court believed the evidence of the prosecution witnesses as against the evidence of Appellant.

The trial Court held that the evidence of the Appellant that he was beaten by PW1’s

other workers on 13/12/2018, is baseless, a simulated story, based on falsehood and not believable. The trial Court believed the evidence of PW3 and disbelieved the evidence of the Appellant and rightly held that the unlawful action of the Appellant led to the death of the deceased. It was the view of the trial Court that the prosecution proved all the ingredients of the offence of manslaughter against the Appellant beyond reasonable doubt in this case. The Appellant was therefore rightly found guilty of the offence of manslaughter alleged against him, convicted and sentenced him in accordance to law.

RESOLUTION OF ISSUE THREE
The law is trite that decisions of Courts must only be found on the issues raised and submitted for resolution of the Courts by the parties and in respect of which the Courts received arguments from and on behalf of the litigants before them. When the foregoing position is deviated, the Court is said to have descended into the arena of conflict. In law therefore, a Judge has no duty to provide explanations to fill in the yawning gap in the evidence adduced by the parties before him or draw inferences not borne out

from the evidence led by the parties before him. See the cases of: (1) The State v. Emine & Ors. (1992) LPELR; (2) Ajuwon v. Akanni & Ors. (1993) LPELR-311 (SC); (3) Suberu v. The State (2010) 8 NWLR (Pt. 1197) p.586; (4) Ayeni v. People of Lagos State (2016) LPELR-41440 (CA) and (5) Access Bank v. K. C. Intl. Ltd. (2018) LPELR-43668 (CA). In the case of: The State v. Emine & Ors. (supra), the Supreme Court had the following to say on this issue viz:
“It is not the duty of the judge to provide explanation to such inconsistencies. Its duty to act on the evidence, as presented before him in his capacity as an independent and impartial arbiter. He is not to supply or provide any explanation to any inconsistencies in such matter.”
A trial Judge must not be seen to descend into the arena of conflict in a trial, to generate or adduce evidence or facts not canvassed or adduced by witness(es) or apparent on the face of the records before him, to decide a case – See the case of: Obi v. A.- G. Imo State (2014) LPELR-24280 (CA). See also the cases of: (1) Ayoade v. Spring Bank Plc (2014) 4 NWLR (Pt. 1396) p. 93 at p. 128;

(2) Ajakaiye v. The State (2015) 5 WRN p. 64 and (3) Egbebu v. I. G. P. & Ors. (2016) LPELR-40224 (CA). In the instant matter, having gone through the entire length and breadth of the printed record of appeal, the only document that I am circumscribed by, especially the proceedings and judgments of the trial Court, I fail to see anywhere that the trial Judge descended into the arena or allowed himself to be beclouded by the dust of the conflict between the opposing parties. On the contrary, I am of the firm view and hold that, after the parties had adduced their respective evidence, all that the trial Judge did was to evaluate and ascribe probative value to the said evidence. The inferences drawn by him from the facts placed before him are without reproach. The entire judgment of the trial Court was well reasoned out and not in any way perverse. The propositions of the Appellant’s counsel that the trial Court failed to consider the issue of Exhibit P4, the alleged fetish ring recovered by the Police from the Appellant and that the Respondent abandoned the charge of manslaughter against the Appellant are not only misconceived but exist in the imagination of

the learned Counsel for the Appellant. As I already adverted under the resolution of the other issues submitted for consideration in the appeal, yea, although the Appellant was alleged to be wearing a fetish ring at the time he got involved in the fist fight with the deceased, the kernel of the Respondent’s case against the Appellant is that the deceased fell under the forceful fist blows of the Appellant and the deceased died some hours thereafter. I must agree with the position of the Respondent that, other than the fact that the said fetish ring was tendered in evidence at trial as one of the items recovered from the Appellant by the Police during investigation, no premium was place on the use of the ring by the Respondent at trial. It was not the case of the Respondent that the ring had any influence on the deceased or that the ring was the cause of the deceased’s death. The Appellant’s counsel however touted this point in his written address at trial and the trial Judge rightly refused to buy it. I also join both the Respondent and the trial Judge to hold that the case against the Appellant was not centred on the use of the fetish ring,

Exhibit P4 as being the cause of death of the deceased.

I further hold as fallacious the argument of the Appellant’s counsel that the offence of manslaughter the Appellant was charged with and arraigned at the trial Court was abandoned at trial by the Respondent for the offence of assault occasioning harm. Very far from that, “ex facie” the record of appeal, the Appellant was charged with the offence of manslaughter and duly arraigned in that regard. At trial, the evidence submitted by the Respondent was in substantiation of the offence of manslaughter. There was no time the charge was amended or substituted with the offence of assault occasioning harm. Looking through the Written Address of the Respondent before the trial Court, this claim of the Appellant was not in contemplation or adverted either tacitly or explicitly. It is novel in this matter and in the course of this appeal. The arguments for the Appellant are purely conjectural and do not advance his case in any material way.

It therefore follows that issue three equally fails and is hereby resolved against the Appellant and in favour of the Respondent.

All the four issues donated by the Appellant having been resolved against him, it becomes crystal clear that his appeal is a failure in its entirety and must be imposed with the sanction of dismissal.
In sum, I hold that this appeal is totally bereft of merits and accordingly dismiss it.
The judgment of the trial Court delivered on the 2nd of December, 2019 in Suit No. AK/86C/2019 is accordingly wholly affirmed.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the opportunity of reading the lead judgment delivered by my learned brother, OYEBISI FOLAYEMI OMOLEYE, J.C.A.

The four (4) issues distilled from the grounds of appeal in the Notice of Appeal by the Appellant were aptly considered and determined by my noble lord in the lead judgment. I adopt the resolutions of the said issues as mine.

I too find the appeal without substance and dismiss same as done in the lead judgment. Whereas the judgment of the lower Court delivered on the 2nd December, 2019 in Criminal Case No. AK/86C/2019 is accordingly affirmed.

PATRICIA AJUMA MAHMOUD, J.C.A.: I had the privilege of reading before now the draft of the judgment just delivered by my learned

brother, OYEBISI FOLAYEMI OMOLEYE, J.C.A. His Lordship has admirably considered and resolved all pertinent issues for determination in this appeal. I agree with my learned brother that this appeal is completely devoid of merit and should be dismissed
I accordingly dismiss it. I also affirm the judgment of the trial Court.

Appearances:

Mr. Fred Onuobia For Appellant(s)

Mr. B. V. Falodun, Chief Legal Officer, Ministry of Justice, Ondo State, Akure with him, Mr. J. K. Orimoloye, Senior Legal Officer For Respondent(s)