DANIEL v. STATE
(2020)LCN/13944(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Tuesday, January 07, 2020
CA/YL/136C/19
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
LAZARUS DANIEL APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT MUST ENSURE THERE ARE NO CO-EXISTING CIRCUMSTANCES THAT WILL WEAKEN THE INFERENCE BEFORE DRAWING INFERENCE OF GUILT F AN ACCUSED PERSON FROM CIRCUMSTANTIAL EVIDENCE
It is the law that before drawing the inference of the accused person’s guilt from circumstantial evidence, the Court has to be sure that there is no co-existing circumstances which will weaken or destroy the inference. See, UDEDIBIA VS. STATE (1976) 11 SC. 133; ADIE VS. STATE (1980) 1 – 2 S.C. 116, OMOGODO VS. STATE (1981) 5 S.C. 5, IGBIKIS VS. STATE (2017) LPELR – 41667 (SC) PP. 28 – 31, PARAS. D – C, EDOBOR and ORS. VS. STATE (1975) LPELR – 3217 (SC) PP. 8 – 9, PARAS. G – C and SA’ADU VS. STATE (2018) LPELR – 44709 (CA) PP. 18 – 19, E – F. PER UWA, J.C.A.
DEFINITION OF A “TAINTED WITNESS”
On the Appellant’s second issue, it is trite that a “tainted witness” is a witness who is either an accomplice or by the evidence he gives, for either side, may and could be regarded as having some purpose to achieve or purpose of his own to serve. See, FBN PLC VS. NWANKWOCHA (1998) 5 NWLR (PT. 551) 610, OKORO VS. STATE (2006) 11 NWLR (PT. 992) 458. PER UWA, J.C.A.
THE DOCTRINE OF LAST SEEN
The doctrine of “last seen” applies where an accused person is the last person seen with a deceased while alive until the dead body is seen. The respondent as prosecutor did not lead any evidence to show that the Appellant was the last person seen with the deceased at the counter, at the Police Station where he died. The law is that the person last seen with the deceased is presumed to be responsible for his death, if it turns out the person last seen with him is dead. See, ARCHIBONG VS. STATE (2006) 14 NWLR (PT. 1000) 349 and HARUNA VS. A.G. FEDERATION (2012) 9 NWLR (PT. 1360) 419. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Appellant stood trial before the Adamawa State High Court (hereafter referred to as the trial Court) presided over by A.A. WAZIRI, J. on a one count charge of culpable Homicide not punishable with death contrary to Section 222 (7) of the Penal Code Law and punishable under Section 224 of the Penal Code, Cap 98 Laws of Adamawa State 1997.
At the trial, the prosecution called a total of five witnesses and tendered an Exhibit, the death certificate of one Sadiq Mohammed. At the close of the prosecution’s case, the Appellant made a “no case submission” which was over ruled by the trial Court. Thereafter, the appellant entered his defence and testified as a sole witness in defence in which the Appellant’s statement was admitted in evidence as Exhibits A1 and A2.
At the close of the trial, the appellant was convicted of the offence of culpable homicide not punishable with death and sentenced to fifteen (15) years term of imprisonment and a fine of N200,000 (Two Hundred Thousand Naira). The Appellant dissatisfied with the judgment appealed to this Court.
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The background facts are that Sadiq Mohammed (now deceased) and another were suspected to have committed the offence of theft and the matter was reported at the Divisional Police Headquarters, Fufore, where the Appellant was working as a Police Corporal.
The deceased was arrested and detained at the Police Station and the appellant was assigned to investigate the allegation of theft against the deceased as the Investigating Police Officer (I.P.O.). The deceased was said to have taken ill whilst in Police Custody and died before reaching the hospital in Yola. A death certificate was issued at the Federal Medical Centre in respect of the deceased but, there was no post mortem examination done on the body of the deceased. The Appellant was alleged to have caused the death of the deceased for which he was tried and convicted. The Appellant was said to have been dismissed from the Police before being prosecuted.
The Appellant distilled three issues for the determination of the appeal thus:
i. “Whether the circumstantial evidence relied upon by the learned trial judge in convicting the Appellant of culpable homicide not punishable with the (sic)
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death, cogently, strongly and irresistibly pointed to the guilt of the Appellant. Distilled from ground one of the grounds of appeal.
ii. Whether the testimony of PW2 and PW3 who were the mother and father of the deceased respectively could not be termed as testimony of tainted witnesses and whether the learned trial Judge cautioned himself on relying on testimony of such witnesses before convicting the Appellant. Distilled from grounds two and three of the grounds of appeal.
iii. Whether in the circumstances of this case, the doctrine of “last seen” could be applicable. Distilled from ground five of the grounds of appeal.”
The Appellant abandoned grounds four (4) and six (6) of the grounds of appeal.
The Respondent on its part distilled the following two issues for the determination of the appeal thus:
i. “Whether the learned trial Judge erred in law in convicting the Appellant of culpable Homicide not punishable with death when the circumstantial evidence he relied on in convicting the Appellant does not point irresistibly to the cause of death of the deceased to acts or omission of the Appellant (Distilled
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from Grounds 1, 2 and 3 of the Notice of Appeal).
ii. Whether the learned trial Judge erred in law when he held: “equally circumstantially the death of the said Sadiq Mohammed was caused by the act of the Accused person who told the deceased’s father, PW3 that he was the one that beat the deceased because of his character and thereby occasioned miscarriage of Justice. Distilled from Grounds 4, 5 and 6 of the Notice of Appeal.”
In arguing the appeal, the learned counsel to the Appellant Joshua Onoja Esq., adopted and relied on his brief of argument filed on 5/8/19, as his argument in this appeal in urging us to allow same, discharge and acquit the appellant. Learned counsel abandoned his grounds four and six of his grounds of appeal, same were hereby struck out. In arguing his issue one, the learned counsel to the appellant agreed with the trial Court’s definition of the features of circumstantial evidence. It was submitted that the trial Court erroneously applied the principle of law concerning circumstantial evidence. See, OKORO MARIAGBE VS. THE STATE (1977) 3 SC. 47 at 52. Further, that none of the witnesses PW1 – PW5
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gave evidence that he/she saw the appellant physically hurt the deceased. It was contended that the contact the appellant had with the appellant was only when the appellant took the deceased to his parent’s house; the deceased was in police custody at the Police Station. It was submitted that one Mohammed Lado picked up the deceased from his parents’ house and he was arrested by one Inspector Sa’adu Idi (then a Sgt) and taken into custody at the Police Station before the appellant’s first meeting with the deceased. See, GODWIN IGABELE VS. THE STATE (2006) ALL FWLR (PT. 311) 1797 at 1823, PARAS. F – H. It was submitted that the deceased was held at the Police Station where every Police Officer at the station had access to him which created doubt as to the cause of death of deceased and who caused the death.
Under issue two, it was submitted that PW2 and PW3 are tainted witnesses, therefore incompetent to have testified being the mother and father of the deceased. It was submitted that their testimony ought to have been considered by the trial Court with caution as these type of witnesses would aim at having their deceased
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son’s death avenged. See, ANTHONY THOMPSON EBONG & ANOR VS. THE STATE (2012) ALL FWLR (PT. 633) 1945 at PP. 1974 – 1975, PARAS. F – B, which followed the decision in MBENU VS. THE STATE (1988) 7. S.C. (PT. 111) 71. It was contended that the trial Court heavily relied on the evidence of the PW2 and PW3 which ought not to be. Further, that the trial Court’s failure to treat the evidence of the PW2 and PW3 as coming from tainted witnesses resulted in not giving the appellant fair hearing.
Issue three is whether the doctrine of “last seen” could apply to this case? It was submitted that the doctrine of last seen” cannot apply to this case considering the facts of this case. It was submitted that the appellant took the appellant to his parent’s house after which he was returned to the cell alive. It was argued that the appellant was not the last person that saw the deceased alive. See, RAPHAEL IFIOK SUNDAY VS. THE STATE (2013) ALL FWLR (PT. 700) 1396 at 1409, PARAS. F – H, IGABELE VS. THE STATE (2006) ALL FWLR (PT. 311) 1797. The evidence of the PW1 and PW5 were reviewed to the effect that one Inspector
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David Sekin called the PW1 that the deceased was sick and that of the PW5 to the effect that when he brought the deceased out of the cell to the counter, he was crying inside the cell and could not talk. It was submitted that the appellant was not the last person that saw the deceased alive.
In response, the learned counsel to the Respondent, M.A. Umar Esq. Senior State Counsel II, Adamawa State Ministry of Justice adopted and relied on his brief of argument filed on 20/8/19 as his argument in this appeal in urging us to dismiss it and affirm the judgment of the trial Court. In arguing his first issue, it was submitted that the burden of proof in a criminal charge is beyond reasonable doubt which is discharged when the prosecution proves the ingredients of the offence beyond reasonable doubt. See, NWATURUOCHA VS. STATE (2011) 6 NWLR (PT. 1242) P. 1701. It was argued that it is not proof beyond all shadow of doubt. Further, that circumstantial evidence could ground a conviction. See, SAKA OLADEJO VS. THE STATE (1987) 3 NWLR (PT. 61) PP. 419 – 420. It was contended that in the present case, there is sufficient circumstantial evidence to show that the
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Appellant killed the deceased. See, OMOTAYO VS. STATE (2013) 2 NWLR (PT. 1338) P. 235, MOHAMMED VS. STATE (2007) 11 NWLR (PT. 1045) 303, ADENIJI VS. STATE (2001) 13 NWLR (PT. 730) 375 and IKOMI VS. STATE (1986) 3 NWLR (PT. 28) 340. Further, that the circumstantial evidence must point to only one rational conclusion, namely that the offence was committed and that it was committed by the accused. It must point unequivocally and irresistibly to the accused person, reference was made to the evidence of the PW2 the mother of the deceased.
In arguing the Respondent’s second issue, it was submitted that the prosecution could establish the guilt of the Appellant through any or a combination of the following means, the confessional statement of the accused person, circumstantial evidence or evidence of any eye witness. See, ABDULLAHI IBRAHIM VS. THE STATE (2014) 3 NWLR (PT. 1394) 305 at 338 PARAGRAPHS D – E, DURU VS. THE STATE (2017) 4 NWLR (PT. 1554) 1 at 24, PARAGRAPHS F – H, OLABODE ABIRIFON VS. THE STATE (2012) 5 NWLR (PT. 1372) 587 at 596, EMEKA VS. THE STATE (2001) 14 NWLR (PT. 734) 666 at 683 and ADIO VS. THE STATE (1986) 2 NWLR (PT. 24)
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581 at 593 – 594, PARAGRAPHS F – H. It was submitted that the circumstances of the present case suggests that the appellant was the last person seen with the deceased; therefore the appellant had some explanation to make. See, SUNDAY EFFIONG VS. THE STATE (1998) 5 SCNJ 156 at 160, RATIO 6 and HABIBU USMAN VS. THE STATE (2010) ALL FWLR (PT. 542) 1691 at 1692 – 1693, RATIO 2. In defining the doctrine of “last seen” reliance was placed on the following case: NDIKE VS. STATE (1994) 8 NWLR (PT. 360) 33; (1994) 9 SCNJ 461, LORI & ANOR VS. STATE (1980) 8 – 11 SC 81, EMEKA VS. STATE (2001) 14 NWLR (PT. 734) 666 at 685, 2019 SCM and HARUNA VS. A.G. FEDERATION (2012) 9 NWLR (PT. 1306) 419 SC.
I would resolve the issues from the issues formulated by the appellant. The parties are agreed on the definition of circumstantial evidence as evidence which unequivocally points that the accused person in this case was the one who killed the deceased and it must be evidence that is cogent, complete, unequivocal, compelling and must lead to the irresistible conclusion that the accused and no one else is the murderer. This is in line
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with the definition also given by the trial Court. The question now is: can it be said that the evidence led by the prosecution points to one direction only, that the Appellant for sure was the one who killed the deceased through cogent, complete, unequivocal, compelling evidence leading to the conclusion that the Appellant killed the deceased, Sadiq Mohammed? It is the law that before drawing the inference of the accused person’s guilt from circumstantial evidence, the Court has to be sure that there is no co-existing circumstances which will weaken or destroy the inference. See, UDEDIBIA VS. STATE (1976) 11 SC. 133; ADIE VS. STATE (1980) 1 – 2 S.C. 116, OMOGODO VS. STATE (1981) 5 S.C. 5, IGBIKIS VS. STATE (2017) LPELR – 41667 (SC) PP. 28 – 31, PARAS. D – C, EDOBOR and ORS. VS. STATE (1975) LPELR – 3217 (SC) PP. 8 – 9, PARAS. G – C and SA’ADU VS. STATE (2018) LPELR – 44709 (CA) PP. 18 – 19, E – F.
In the present case, no doubt the deceased died while in Police Custody. The deceased was first picked up by one Mohammed Labo and was later arrested and detained by Inspector Sa’adu
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at Fufore Police Station before his first encounter with the Appellant as given in evidence by the PW2, the deceased mother. The PW1 gave evidence that he received a call from the C.R.O. (Inspector David Sekin) that the deceased was seriously sick, at the time the Appellant as the IPO was not around at the Police Station. The Appellant was not the only Police Officer that had access to the deceased while he was in the cell. In the Appellant’s statement, Exhibits A1 and A2 stated that the deceased had jumped off the motorcycle he was being conveyed with to the station and fell. The deceased at that point could have sustained injuries. Worst still, Exhibit ‘A’ is a death certificate, there was no post mortem report from the hospital to ascertain the cause of death. See, OKORO MARIAGBE VS. THE STATE (1977) 3 S.C. 47 and MALLAM ZAKARI AHMED VS. THE STATE (1999) LPELR – 263 (SC) P.20, PARAS. E – G.
I agree with the submission of the learned counsel to the Appellant that no evidence was led by any of the prosecution witnesses to the effect that he/she saw the appellant doing anything physical or otherwise to the deceased
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that led to his death. There was no evidence of the Appellant’s involvement in causing the death of the deceased. The deceased could have incurred injuries leading to his death before his case was handed over to the Appellant as the IPO, the deceased could have sustained internal injuries that led to his death when he fell off the motorcycle when he was being conveyed from his home to the Police Station. While in custody at the police station any and all the Policemen on duty had access to his cell. When the deceased was ill in the cell and was brought out to the counter and could not speak at the time, any Police Officer on duty could have inflicted the injuries. Moreso, the Appellant was not on duty when the deceased was brought out of the cell to the counter where he later died. The circumstances of this case weakened the prosecution’s case. There was no evidence of the Appellant’s involvement in the death of the deceased. The inference of the Appellant’s guilt cannot be drawn from the facts surrounding the deceased death and does not support a conviction of culpable homicide not punishable with death because there are no
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cogent, unequivocal, compelling, irresistibly pointer to the guilt of the Appellant. The trial Court ought not to have convicted on it. Issue one is resolved in favour of the appellant.
On the Appellant’s second issue, it is trite that a “tainted witness” is a witness who is either an accomplice or by the evidence he gives, for either side, may and could be regarded as having some purpose to achieve or purpose of his own to serve. See, FBN PLC VS. NWANKWOCHA (1998) 5 NWLR (PT. 551) 610, OKORO VS. STATE (2006) 11 NWLR (PT. 992) 458. The PW2 (mother of the deceased) and the PW3 (father of the deceased) testified for the prosecution at the trial Court but, the trial Court did not warn or caution itself when their evidence was considered, which influenced the Court to convict the appellant. Their evidence was not corroborated. The PW2 and PW3 being the parents of the deceased are likely to say anything to ensure the conviction of the appellant. Their evidence ought to have been accepted and utilized with some reservation. These witnesses could be regarded as “having some purpose of their own to serve.” Their evidence has an
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interest to serve, which is ensuring the conviction of the accused person. See, THE STATE VS. DOMINIC OKOLO & ORS (1974) 2 S.C. 73, 82; (1974) 1 ALL NLR 466, 474; ISHOLA VS. THE STATE (1988) 3 NWLR (PT. 84) 615, OMOTOLA & ORS VS. STATE (2009) LPELR (SC) P. 41, PARAS. A – D and ANYASODOR VS. STATE (2018) LPELR – 43720 (SC) P. 18, PARAS. B – D. The learned trial judge found that the deceased died from the beating meted to the deceased by the appellant as told by the deceased to the PW2 and PW3. There was no other evidence in support of the alleged beating by the appellant, page 175 of the printed records of appeal and there is nothing on record that showed that the Court cautioned itself in considering and believing the evidence of the PW2 and PW3 and relied on same as the truth in convicting the appellant without corroboration. The appellant’s second issue is resolved in his favour.
The Appellant’s third issue is whether the doctrine of “last seen” could be applied in this case? It is in evidence that the Appellant took the deceased to his parents’ house and returned him to the cell at the Police
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Station alive when the Police Station was busy and other Police Officers had access to the cell where the deceased was kept. It is in evidence that the deceased was found dead in the morning hours, anything could have happened at the cell or station where the deceased had also been observed to be sick before he was found dead when the Appellant was not on duty at the station. The doctrine of “last seen” applies where an accused person is the last person seen with a deceased while alive until the dead body is seen. The respondent as prosecutor did not lead any evidence to show that the Appellant was the last person seen with the deceased at the counter, at the Police Station where he died. The law is that the person last seen with the deceased is presumed to be responsible for his death, if it turns out the person last seen with him is dead. See, ARCHIBONG VS. STATE (2006) 14 NWLR (PT. 1000) 349 and HARUNA VS. A.G. FEDERATION (2012) 9 NWLR (PT. 1360) 419. At pages 101 – 102 of the printed records of appeal, the PW1 (Inspector Sa’adu Idi) testified thus:
“I assisted the Accused to arrest the 1st suspect at the Police Station.
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From there, the Divisional Police Officer in the person of Daniel Ojobo (ASP) detailed me for another official assignment with him to the collection centre for the Senate/House of Representatives Election. I was together with the said ASP until 30th of March, 2015 up to 1400 hrs. Later I received a phone call from the C.R.O. in the person of Inspector David Sekin that the suspect Saddik Mohammed was seriously sick and the I.P.O. was nowhere to be found. From there I rushed back to the Police Station and rushed with the victim to Federal Medical Centre Yola and later on the suspect died.
Coroner form was filled and the Doctor examined the corpse and the corpse was released to the relatives of the deceased for burial. From all indications later on the Accused person surfaced. I then defaulted him on orderly room for leaving station without permission and discredibly conduct and then ordered for his detention on the orders of the D.P.O.” (Underlined mine for emphasis)
From the evidence of the PW1 above, he received a call that the deceased was seriously sick, the appellant was not at the station. The PW1 rushed the deceased to the Federal Medical
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Centre from the Police Station, where he later died. The Appellant therefore cannot be rightly said to have been the last person that the deceased was seen with while alive.
Similarly, the evidence of the PW3 (Mohammadu Abubakar, father of the deceased) shows that the Appellant was not the last person to have been seen with the deceased while alive. At page 104, the PW3 testified thus:
“A bail bond was prepared and I was asked to sign by Sgt. Idi but I told him that I was not going to sign in view of the condition of the suspect who was behind the counter. Then he called a driver who has a starlet to come and pick the suspect to the hospital. Myself, Sgt. Idi, Mohammadu Jefu and one other person entered the starlet and proceeded to F.M.C. Yola. When we got to the Federal Medical Centre we could not bring him down as he was confirmed dead by a doctor on examination.” (Underlined mine for emphasis)
From the testimony of the PW3, he, Sgt Idi, Mohammadu Jefu and one other person were the last people to see the deceased alive when they took the deceased to the Federal Medical Centre, Yola. The Appellant was not present when the deceased
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was being taken to hospital and died before arrival at the hospital.
Further, the PW5 (Inspector Esthon Manbani) at pages 109 – 110 testified as follows:
“I took over duty as C.R.O. morning from the night duty men led by Inspector David Sakin. The said Lazarus removed the cell key and took away the suspect for investigation. He booked at the station and left with the suspect. Myself and Inspector Alhamdu Dawa the S.O. went to the Police Headquarters Yola.
Before the close of our shift duty I noticed/found out the suspect was crying inside the cell. I then directed the incharge of cell (sic) to bring out the suspect. When the suspect was brought out to the counter I asked him what happened but he could not talk I then asked the person in charge of the cell as to what happened. He then asked me to check the station diary and on checking the said diary I found out the Accused person was defaulted by Sgt. Sa’adu Idi now an Inspector. We tried calling the Accused person on phone but same proved abortive. My reliever by name David Sakin an Inspector came and we still tried reaching the Accused person but still in vain. I then handed
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over to the night duty shift.” (Underlined mine for emphasis)
From the above testimony of the PW5, the Appellant was not present when the deceased was ill and could not talk, and later brought out of the cell to the counter. The Appellant was even defaulted for not being at the station. It was the PW5 that asked the officer in charge of the cell to bring the deceased out of the cell to the counter due to his ill health. It is clear that the deceased was not last seen alive with the Appellant. I hold that the trial Court was wrong to have held that the Appellant was the last person that saw the deceased alive. The doctrine of “last seen” is inapplicable in the present case. I resolve the third issue in favour of the Appellant.
In the final analysis, having resolved all the three issues in favour of the Appellant, I allow the appeal for being meritorious.
The judgment of the trial Court in case No: ADSY/28C/2017 delivered on 8th October, 2018 is hereby set aside. The conviction and sentence of the Appellant is also set aside and instead the Appellant is discharged and acquitted.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
Joshua Onoja Esq. For Appellant(s)
M.A. Umar Esq. State Counsel II, Adamawa State Ministry of Justice For Respondent(s)
