DANLADI v. STATE (2020)

DANLADI v. STATE

(2020)LCN/14873(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, December 21, 2020

CA/A/210C/2020

RATIO

CRIMINAL LAW: BURDEN OF PROOF IN A CRIMINAL CASE

The burden of proof in a criminal case is on the prosecution and must be established beyond reasonable doubt as provided in Section 135 (1) of the Evidence Act. The subsection provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceedings, civil or criminal, it must be proved beyond reasonable doubt. As is being upheld by the Courts, what the term beyond reasonable doubt entails was clearly and simply stated by the apex Court per Aloma Mariam Mukhtar JSC in the case of JUA v. STATE 2010 LPELR-1637 SC thus:
“Although the law requires that a crime must be proved beyond reasonable doubt, it does not envisage that such proof be beyond the shadow of doubt. This proposition of the law is well echoed by Lord Denning in the case of Miller V. Minister of Pensions 1947 2 All E. R. Page 372 which is encapsulated thus:- “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
See also the cases of JOSHUA ALONGE V. IGP 1959 IV FSC 203, AHMED V. THE STATE 2003 3 ACLR 145 177, ANAEKWE V. THE STATE 1988 ACLR 426, OBIAKOR V. THE STATE 2002 6 SCNJ 193, ONYEKA MBERI V. THE STATE 2016 LPELR-CA/OW/351M/2012 and MUFUTAU BAKARE V. THE STATE 1987 LPELR-714 SC. PER WILLIAMS-DAWODU, J.C.A.

EVIDENCE: PRIMARY DUTY OF A TRIAL COURT

The primary duty of a trial Court is to evaluate evidence and ascribe probative value to same. An appellate Court, not having the privilege of watching and hearing the witness testify is, by reason of that handicap not in a position to determine the credibility of witnesses as issues of fact, questions on demeanor and credibility are pre- eminently those of the Court of trial. See the cases of CYRACUS NNADOZIE & ORS V. MBAGWU 2008 LPELR-SC 249/2002, GABRIEL OKUNZUA V. MRS E. B. AMOSU & ANOR. 1992 LPELR SC 178/1990, WILLIAMS V. JOHNSON 1937 2 WACA 253 and OGBERI EGRI V. EDEBO UKPERI 1974 NMLR 22. PER WILLIAMS-DAWODU, J.C.A.

CRIMINAL LAW: INGREDIENTS TO GROUND CONVICTION FOR MURDER

Essential ingredients to ground conviction for murder which must be proved beyond reasonable doubt are as follows:
i. That the deceased died
ii. The death of the deceased resulted from the act of the Appellant and
iii. That the act of the Appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See the cases of OLALEKAN V. STATE 2001 LPELR-2561 SC, OGBA V. THE STATE 1992 2 NWLR PT. 164 198 and BAKARE V. THE STATE 1987 NWLR PT. 52 579. PER WILLIAMS-DAWODU, J.C.A.

CRIMINAL LAW: WAYS OF ESTABLISHING THE GUILT OF THE ACCUSED

Establishing the guilt of the accused by the prosecution can be done by the following methods accepted by the Courts:
i. The voluntary confession of the accused person
ii. By direct credible and reliable eye witness or victim of the offence depending on the circumstance of the offence and
iii. Circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence charged and by no other person.
See the cases of EMEKA V. THE STATE 2001 6 SC 227 and EGBOGHONOME V. THE STATE 1993 NWLR PT. 306 282. PER WILLIAMS-DAWODU, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

MAIRO DANLADI APPELANT(S)

And

THE STATE RESPONDENT(S)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the High Court of Niger State, Minna delivered by Hon. Justice Aisha A. L. B. Bwari, CJ, on November 6th, 2019 wherein the Court found the Appellant (the Accused person at the Court below) guilty of the offence of culpable homicide punishable with death and was accordingly convicted and sentenced to death by hanging. See pages 129-1130 of the Record.

The Appellant was charged as follows by the Respondent (the Complainant at the Court below:
“That you, Mairo Danladi ‘f’ of Kichikpa village via Kafin Koro in Paikoro Local Government Area of Niger State, on or about the 28th day of March 2014 at Kichikpa village within the jurisdiction of this Hon. Court. Appellant administered a poisonous substance popularly known as Ota pia pia to a three (3) months old baby one Musa Danladi ‘M’ with the intention of causing his death and which did result to his death at the hospital. You thereby committed an offence punishable under Section 221 (a) of the Penal Code”.

At the Court below, the prosecution called five (5) witnesses and the

Appellant testified for herself as the DW1. The Court found the Appellant guilty as afore said of the one count charge. Dissatisfied with the decision of the Court, the Appellant filed Notice of Appeal dated January 28th 2020 with Seven (7) grounds of appeal and seeking the following reliefs:
1. An order of Court allowing this appeal.
2. An order setting aside the conviction and sentence of the Appellant by the lower Court in the judgment contained in Charge No. NSHC/MN/9C/2016 delivered on the 6th Day of November, 2019.
3. An order discharging and acquitting the Appellant.

In accordance with the Rules of this Court, parties exchanged and filed their briefs of argument. The Appellant’s brief dated April 2020 which was settled by Mrs. B. O. Akinseye-George, Esq. was filed on April 20th 2020. The Respondent’s dated August 7th 2020, settled by Mr. Ahmed Mohammed Enagi Esq. was filed September 25th 2020 and deemed as properly filed and served on July 10th 2020.

At the hearing of the appeal, the learned Counsel for the Appellant, Mrs. Akinseye-George, Esq. adopted the Appellant’s brief and urged that the appeal be allowed. Mr. Enagi, Esq.

learned Counsel for the Respondent adopted the Respondent’s brief and urged that the appeal be dismissed.

APPELLANT’S ISSUES FOR DETERMINATION
Six issues as follows are raised by the Appellant for determination:
1. Whether the trial Court was right in pronouncing the Appellant guilty even before considering the evidence led at the trial and whether this occasioned a miscarriage of justice to the Appellant (Ground 1).
2. Considering the entire circumstances of the case and evidence led at the trial, whether the lower Court was right to hold that there was no need for the prosecution to prove by medical evidence that the deceased died from the effect of a poisonous substance called “otapiapia” and whether the conviction and sentence of the Appellant should not be set aside for lack of medical evidence establishing the cause of death of the deceased (Ground 2).
3. Whether the trial Court was right in holding that the alleged otapiapia “is a poisonous substance capable of causing injury also to human beings which was vividly demonstrated by the death of the deceased on the administering of the said substance to him by the accused”

after all the Prosecution’s witnesses testified to the substance being used to kill mosquitoes and other insects (Ground 3).
4. Whether the trial Court was right to rely on the case of AHMED V. THE STATE (2001) 8 NSCQR 273 and hold in the case at hand that the cause of death of the deceased was obvious and as such medical evidence was therefore not necessary (Ground 4).
5. Whether the trial Court was right in holding that there can be no other explanation as to the cause of death of the deceased other than the poison otapiapia infected to (sic) him by the accused and whether this occasioned a miscarriage of justice against the Appellant (Ground 5).
6. Having regards (sic) to the gaps and doubts in the case of the prosecution, whether the Respondent proved the offence of culpable homicide charged beyond reasonable doubt (Grounds 6 and 7).

RESPONDENT’S ISSUES FOR DETERMINATION
I. Whether the Court was right in convicting the appellant on confessional statement which was tendered and admitted by the Court.
II. Whether besides the evidence of PW3 and PW5 whom (sic) tendered Exhibits “B” and “C” (the appellant (sic)

confessional statement), there are no other evidence placed before the Court corroborating the evidence of PW3 and PW5.
III. Whether from the evidence adduced at the trial, the respondent can be said to have proved the case beyond reasonable doubt.

I have very carefully considered the Issues submitted by both sides. I shall adopt those by the Appellant for the determination of this appeal satisfied that they will bring about a fair and just resolution on the overall.

SUBMISSIONS ON BEHALF OF THE PARTIES
The learned Appellant’s Counsel submitted that the Court was wrong to have pronounced on the guilt of the Appellant even before a finding in that regard was made as Section 36 (5) of the 1999 Constitution presumes everyone innocent until found guilty and cited the case of OGU V. C.O.P. 2017 LPELR-43832 SC PG. 44-45, C. O. P. V. AMUTA 2017 LPELR-41386 SC 25-26. That, it meant the Court from the on- set made up its mind to convict the Appellant, therefore, the trial was not fair within the spirit of the Constitution.

Further that, the Court misconceived the law when it held that there was no need for medical evidence to prove that

the deceased died from the effect of the substance, otapiapia administered to him by the Appellant, as medical evidence is the most desirable form of evidence to prove a charge of culpable homicide, where there was no direct or circumstantial evidence as the instant. In support, she cited the cases of BEN V. THE STATE 2006 LPELR-770 SC 12-13, BAKURI V. STATE 1965 NMLR 163, 164, ONWUMERE V. STATE 1991 4 NWLR PT. 186 428, SAHEED V. THE STATE 2018 LPELR-46675 CA and GALADIMA V. STATE 2017 LPELR-41911 SC amongst others. That, there was no evidence to show that the substance was poisonous and harmful to humans and the witnesses she argued were not competent to testify on the effect of the substance on humans or the deceased. Therefore, the decision of the Court was perverse and there was miscarriage of justice on the Appellant. In support she cited the case of OSOKOYA V. ONIGEMO 2018 ALL FWLR PT. 942 424.

The learned Counsel submitted that the Respondent failed to prove the offence against the Appellant beyond reasonable doubt as the law requires and referred to Section 135 (1) of the Evidence Act 2011 and Section 36 (6) of the 1999 Constitution as well as

the cases of ONONUJU V. THE STATE 2015 ALL FWLR (PT. 810) 1198, EJEDEGBA V. STATE 2018 ALL FWLR (PT. 942) 399, MBANG V. STATE 2011 ALL FWLR (PT. 562) 1766 and OSADOLOR V. STATE 2017 ALL FWLR (PT. 895) 1581 166632. That, it was wrong for the Court to have filled in the gap for the shortcoming of the Respondent and cited EMMANUEL V. THE STATE 2017 LPELR-43550 CA and OMOPUPA V. STATE 2007 LPELR- 8571 CA amongst others.

She argued that the Court failed to distinguish the facts in the instant appeal from the case of AHMED V. THE STATE 2001 8 NSCQR 273 wherein the cause of death was obvious. That, the cause of death was not obvious in the instant appeal and so the Court was wrong and she cited in support the case of STATE V. RABIU 2018 LPELR-44740 CA 18-19 and GALADIMA V. STATE supra. Further that, there were contradictions in the testimonies of the witnesses particularly, PW1 and PW2 and consequently the Respondent failed to prove the charge against the Appellant beyond reasonable doubt. In support, she cited the cases of NWOYE V. STATE 2018 LPELR-46067 CA 13, PRINCEWILL V. THE STATE 1994 LPELR 2926 SC 16 and CHIBUIKE V. THE STATE 2017 LPELR-42727 CA 23-24. That,

the Court should have discountenanced the testimony of the PW1 who threatened to beat up the Appellant for her to confess and such could not be used to corroborate another piece of evidence and the reasonable doubt created should be resolved in favour of the Appellant and cited in support the case of ALMU V. STATE 2009 10 NWLR PT. 1148 31. In conclusion, she urged that the appeal be allowed and the decision of the Court below, set aside.

In opposition, the learned Counsel for the Respondent submitted that the Court did not find the Appellant guilty before trial and that she was convicted upon compelling evidence including the Appellant’s confessional statement, Exhibits B and C which she tried to retract. In support, he cited the case of ASUQUO BASSEY V. STATE 2012 50 PT. 1 NSCQR 37. That there was no miscarriage of justice to the Appellant as her statements were corroborated by the testimonies of PW1, PW2 and PW4 and therefore a medical report was not necessary and in support cited the cases of MUSA V. STATE 2013 2-3 SC PT. 11 75 P. 106, BEN V. STATE 1 NCC 268 and JEREMIAH V. STATE 2012 14 NWLR P.248. Further that, the Respondent proved its case against

the Appellant beyond reasonable as required in law under Section 221 of the Penal Code since the principle is not beyond all shadows of doubt and cited the case of MUSA V. STATE supra. He argued that, it is not every contradiction that affects the substance of a finding and upturn a decision once it does not go to the root of the evidence and not fatal. In support he cited the case of ADEKOYA V. STATE 2012 49 PT. 2 NSCQR 1119 P. 1153 as well as Section 382 of the Criminal Procedure Code. In conclusion, he urged that the decision of the Court below be affirmed and the appeal, dismissed for lacking merit.

THE POSITION OF THE COURT
Having thoroughly read through the Record, I proceed with the consideration of the Issues as adopted and shall reproduce the Issues for ease of reference hereunder.
ISSUE 1
Whether the trial Court was right in pronouncing the Appellant guilty even before considering the evidence led at the trial and whether this occasioned a miscarriage of justice to the Appellant.

The burden of proof in a criminal case is on the prosecution and must be established beyond reasonable doubt as provided in Section 135 (1) of the Evidence Act.

The subsection provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceedings, civil or criminal, it must be proved beyond reasonable doubt. As is being upheld by the Courts, what the term beyond reasonable doubt entails was clearly and simply stated by the apex Court per Aloma Mariam Mukhtar JSC in the case of JUA v. STATE 2010 LPELR-1637 SC thus:
“Although the law requires that a crime must be proved beyond reasonable doubt, it does not envisage that such proof be beyond the shadow of doubt. This proposition of the law is well echoed by Lord Denning in the case of Miller V. Minister of Pensions 1947 2 All E. R. Page 372 which is encapsulated thus:- “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short

of that will suffice.”
See also the cases of JOSHUA ALONGE V. IGP 1959 IV FSC 203, AHMED V. THE STATE 2003 3 ACLR 145 177, ANAEKWE V. THE STATE 1988 ACLR 426, OBIAKOR V. THE STATE 2002 6 SCNJ 193, ONYEKA MBERI V. THE STATE 2016 LPELR-CA/OW/351M/2012 and MUFUTAU BAKARE V. THE STATE 1987 LPELR-714 SC.

I shall now proceed to consider the evaluation of the evidence presented herein by the Court.

With regard to Issue 1, the learned Appellant’s Counsel contends that, the Court pronounced the Appellant guilty without making any finding to

that effect. I am afraid, having very carefully and indeed painstakingly gone through the said portion of the Judgment referred to, one is unable to so agree. Clearly, one sees from the very beginning of the judgment that the Court stated that the Appellant was being charged with an offence thus:
“The accused person stands charged before the Court for the offence of Culpable Homicide punishable with death under Section 221 (a) of Penal Code, LNS 1989 to which she had pleaded not guilty.
The crux of the case is that, the accused on or about the case (sic) 28th day of March 2014 at Kichipka village, administered a poisonous substance known as Otapiapia to a 3 months old baby on Musa Danladi with the intention of causing his death, from which the said baby died on his way to the hospital.
The prosecution in proof of its case called 5 witnesses and tendered 3 exhibits as A, B and C the accused testified to (sic) her own behalf as the only witness as DW1.”
See pages 104-105 of the Record.

In my considered view and humbly, it is evident from the foregoing portion of the Court’s decision that it made no conclusions as to the guilt of the

Appellant. It would appear to be narrating and repeating the facts as contained in the charge preferred. See page 5 of the Record. The word, crux can be interchanged or replaced with the word, “substance” or simply said as, “the most important part of the matter or issue.” It does not in any way connote determination or conclusion and as seen in the body of the Judgment, it continued with the testimonies of both the prosecution and defence witnesses and the evaluation of the facts and evidence before it. There was therefore no violation or denial of the fundamental and enshrined constitutional provision on the presumption of the innocence of the Appellant. Issue 1 is in consequence resolved against the Appellant.

ISSUES 2, 3, 4, 5 AND 6 SHALL BE CONSIDERED TOGETHER.
2. Considering the entire circumstances of the case and evidence led at the trial, whether the lower Court was right to hold that there was no need for the prosecution to prove by medical evidence that the deceased died from the effect of a poisonous substance called “otapiapia” and whether the conviction and sentence of the Appellant should not be set aside for lack of medical evidence

establishing the cause of death of the deceased.
3. Whether the trial Court was right in holding that the alleged otapiapia “is a poisonous substance capable of causing injury also to human beings which was vividly demonstrated by the death of the deceased on the administering of the said substance to him by the accused” after all the Prosecution’s witnesses testified to the substance being used to kill mosquitoes and other insects.
4. Whether the trial Court was right to rely on the case of AHMED V. THE STATE (2001) 8 NSCQR 273 and hold in the case at hand that the cause of death of the deceased was obvious and as such medical evidence was therefore not necessary.
5. Whether the trial Court was right in holding that ” there can be no other explanation as to the cause of death of the deceased other than the poison otapiapia infected to (sic) him by the accused and whether this occasioned a miscarriage of justice against the Appellant.
6. Having regards (sic) to the gaps and doubts in the case of the prosecution, whether the Respondent proved the offence of culpable homicide charged beyond reasonable doubt.

Essential ingredients to

ground conviction for murder which must be proved beyond reasonable doubt are as follows:
i. That the deceased died
ii. The death of the deceased resulted from the act of the Appellant and
iii. That the act of the Appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See the cases of OLALEKAN V. STATE 2001 LPELR-2561 SC, OGBA V. THE STATE 1992 2 NWLR PT. 164 198 and BAKARE V. THE STATE 1987 NWLR PT. 52 579.

On the first ingredient of the offence, the Court found as seen in the

Record that, there was death of one Musa Danladi, three (3) months old baby, through the evidence of the PW1, the father of the deceased and husband of the Appellant, Danladi Shaba, who was called by a friend from the market that his child had to be taken to the hospital and later informed that the child had died, the PW 2, Lami Danladi, the mother of the deceased and co-wife with the Appellant of the PW 1, who testified that the deceased was brought to her by the Appellant crying and she followed as the child was being taken to the hospital in the arms of the Appellant, first to the Chemist and he died on the way, PW5, the IPO, the Police Officer who investigated the matter after the report was lodged at the Kafin Koro Police Station, visited the scene, invited the Appellant and from investigations found that the child died and was buried. The Court in consequence and correctly on page 115 of the Record stated as follows:
“The above evidence therefore leaves no doubt of the death of the deceased boy Musa a son to PW1 and PW2 thereby proving the 1st ingredient of the offence for which the accused stands charged.”

The Court found that the Appellant

was the person who brought the boy, crying and refused to suckle from his mother’s room where she had laid him after giving him a bath. That he was being taken to the hospital but died on the way. That after the boy’s burial, the PW2, informed the PW1 of the smell of a chemical substance, otapiapia, on the boy’s shirt that was brought back home. Further that it was the Appellant herself that first informed the PW1 that she administered the substance to the deceased. It found that the confessional statements of the Appellant were corroborated by those of the PW1, PW2 and PW4, one Dorcas Timothy, the aunty to the deceased who lodged a report at the said Kafi Koro Police Station and was also at the SCIB, Minna and the Appellant under cross-examination confirmed that she was with PW4 at both the Police Station and the Chief’ Palace. See pages 85-86 of the Record. Its finding on page 118 of the Record went thus; “No evidence is on record that the statement made at the two Police Stations in the presence of these witnesses were made under any threat or were involuntary (sic) made in whatever manner.”

In my considered view, the above quoted conclusion reached

is correct and very crucial to the proof in respect of the second ingredient. It is necessary to note that the Court accepted as argued by the Appellant’s Counsel that the PW1 as the Appellant’s husband threatened to beat her if she did not tell him the truth “before she opened up and told him the reality” that she administered the chemical substance, otapiapia, to the deceased on page 117 of the Record. According to the Court and correctly, though the Appellant retracted her statements, Exhibits B and C, it found therein that the accounts that led to the death of the deceased were similar to the testimony of the PW2, that she heard her baby cry and it was the Appellant that brought him to her from her room where she laid him to sleep. The Court stated thus on page 120 of the Record:
“It is therefore no longer in doubt that the confessional statement of the accused was recorded at the Police Station Kafin Koro and thereafter at the SCID Minna by the Police. The testimonies of PW1, PW2 and PW4 corroborates (sic) the facts of the recording of the Confessional Statement from the accused person that she poisoned the deceased Musa Danladi her co-wife’s child

with Otapaipai which resulted in his death at Kafin koro General Hospital.”

It is important at this juncture to refer to part of the proceedings before the Court with regard to the confessional statements of the Appellant, Exhibits B and C. At the hearing, the investigating Police Officer at the State Criminal Investigation Office, Minna, the PW3, sought to tender the statement of the Appellant taken at their office which he testified she voluntarily made. The defence objected on the ground that it was involuntarily given and the case was adjourned for trial within trial on 26/7/2017. However, on the day for the trial within trial, the learned defence Counsel prayed to change the ground of objection that, the Appellant never made the statement sought to be tendered from that of involuntary and torture. There being no objection it was granted, the conduct of the trial within trial was dispensed with and the said statement was admitted as Exhibit B. See pages 62-76 of the Record. Similarly, when the investigating Police Officer, the PW5, sought to tender the statement of the Appellant which he testified to have been made voluntarily at the Kafin Koro

Police Station, the Appellant’s Counsel objected on the ground that the Appellant never made the statement, the Court overruled that a retraction did not render a statement inadmissible save the weight to be attached to it and it was admitted and marked Exhibit C. See pages 78-80 of the Record.

The Court, properly admitted both Exhibits B and C which the Appellant denied making in spite of the objection raised by the defence having changed the ground from involuntariness. It is trite that mere denial of making or signing a confessional statement by an accused person is not sufficient ground on which to reject its admissibility in evidence when it is properly tendered. See the case of OKWESI V. STATE 1995 NWLR 119, EZENGE V. THE STATE 1999 14 NWLR PT. 637 1 and AKWUOBI V. STATE 2016 LPELR-SC 379/2011.

As can be seen herein, before a conviction is based on a retracted confession there must be some corroborative evidence outside the confession which would make it probable that the confession was true as the Court as afore stated found in the foregoing paragraphs. See the case of AREMU V. STATE 1991 7 NWLR PT. 2011. Corroborative evidence is

independent testimony which affects/implicates the accused in some material particular not only by connecting or tending to connect him with the crime but also that he committed the crime. See the cases of OHUKA V. STATE NO. 2 1988 4 NWLR PT. 86 36, SALAWU V. STATE 1971 NMLR 249 and AKINFE V. STATE 1988 3 NWLR PT. 85 729. The word corroboration is not a technical term but simply means evidence tending to confirm, support and strengthen other evidence sought to be corroborated. It needs not be direct evidence, can be circumstantial and need not confirm the whole account once it corroborates in some respect the evidence material to the charge. See the cases of OGUNBAYO V. STATE 2007 LPELR-2323 SC and IGBINE V. THE STATE 1997 9 NWLR PT. 519 101 CA.
From the Record, one finds that, following the denial by the Appellant that she never made the statements, Exhibits B and C, the Court correctly tested their veracity in my view and humbly and resolved the necessary questions, such as, whether the Appellant had the opportunity of committing the offence and whether the confession, Exhibits B and C were possible and consistent with other facts which were ascertained

and proved beyond reasonable doubt. See pages 124- 125 of the Record and the cases of KANU V. R 1952 14 WACA 30, R. V. OBASA 1962 2 SCNLR 402, DAWA V. STATE 1980 8-11 SC 236, OJEGELE V. STATE 1988 1 NWLR PT. 71 414, OGOALA V. STATE 1991 2 NWLR PT. 175 509 and EJINIMA V. STATE 1991 6 NWLR PT. 200 627. Once a confessional statement passes the veracity test, it can support a conviction whether the statement was retracted or not as in the instant. See the case of DAWA V. STATE supra.

The finding of the Court against the contention of the Appellant’s Counsel that, the prosecution failed to prove by medical and scientific means or by any other means that the act of the Appellant caused the death of the deceased by poisoning in my considered view, is sound and should not be disturbed. The Court stated on pages 122-123 of the Record as follows in that regard:
“The prosecution witnesses from the evidence above, testified to the use of the substance Otapiapia which the accused said she administered to the deceased through the mouth. They all testified to the substance being use (sic) to kill mosquitoes, ants and other insects. No evidence exist

that it is incapable of having the same effect on human beings as on the insects. Meaning it is a poisonous substance capable of causing injury also to human being which was vividly demonstrated by the death of the deceased on the administering of the said substance to him by the accused. No evidence exist that the deceased before he was administered Otapiapia was suffering from any ailment that, could have led to his death. PW2 testified to how she laid him in her room sleeping after bathing him. While the accused stated in exhibits B and C how she sneaked into the room and administered the poison into his mouth which eventually caused his death some few hours later at the Kafin koro General Hospital. There can be no other explanation as to the cause of death of the deceased other than the poison Otapiapia infected (sic) to him by the accused.”
One agrees with the Court’s finding and is fortified in this position given the clarification made by the apex Court with regard to the issue of medical evidence as follows in the case of AHMED V. STATE 2001 8 NSCQR 273:
It is correct that, medical evidence will not be necessary where the cause of death is

found to be obvious from the evidence as enumerated in the foregoing paragraphs. The general principle on medical evidence is that, a Court can rely on a medical report from a medical expert to prove cause of death in murder cases but this is not necessary in all cases as, a Court can in the absence of a medical report properly infer the cause of death from the evidence and the circumstances of the case as the instant. See the cases of OFORLETE V. THE STATE 2000 LPELR-SC 177/1999, RABIU V. THE STATE 1980 8-11 SC 130 and ERIC UYO V. A-G BENDEL STATE 1986 1 NWLR PT. 17 418. In the instant, there was no evidence of any intervening cause or causes that could have caused the death of the deceased from the time the substance was given to him. In conclusion, the Court held thus:
“In the instance therefore this Court from the above discuss has found that there was no direct evidence of an eye witness to the commission of the offence. However, there are sufficient evidence from the prosecution witnesses especially PW2, exhibits B and C and circumstantial (sic) has established conclusion that the accused did in fact ingested (sic) a poisonous substance known as

Otapiapia to deceased.”

See page 128 of the Record. It is settled law that circumstantial evidence is often the best evidence and to ground a conviction thereby, it must be positive and point irresistibly to the accused person. As stated by the apex Court per IKECHI FRANCIS OGBUAGU, J.S.C P. 39, in the case of JUA V. STATE 2010 thus:
“The circumstantial evidence that will meet the requirement of onus of proof in criminal cases, is the evidence that fixes the accused, to the crime with sufficient cogency and which excludes the possibility that someone else had committed the crime.”
See also the cases of FATOYINBO V. ATTORNEY-GENERAL WESTERN NIGERIA 1966 NMLR 4, AKPAN V. STATE 2001 15 NWLR P. 745, UKORAH V. STATE 1980 1 – 2 SC 116, ADENIJI V. STATE 2001 13 NWLR PART 730 P. 375, SAKA OLADEJO V. THE STATE 1987 LPELR SC 79/1986 and JOSEPH LORI V. THE STATE 1980 8-11 SC 81.

From the foregoing, the conviction of the Appellant was found based on circumstantial evidence, that of the prosecution witnesses and the confessional statements of the accused, Exhibits B and C. In conclusion, the Court properly found and held in the light of the above

that the prosecution has successfully proved its case beyond reasonable doubt against the accused person.
See pages 128-129 of the Record.

In all, and in the light of the foregoing, Issues 2, 3, 4, 5 and 6 are resolved against the Appellant as one is of the considered view and humbly that, the findings and conclusion of the Court below should not be disturbed. The contrary argument of the learned Appellant’s Counsel fails to point out the major error, which can be said to amount to miscarriage of justice where the verdict is affirmed herein.

In consequence, the judgment of the High Court of Niger State, Minna, delivered by Hon. Justice Aisha A. L. B. Bwari, CJ, on November 6th 2019 is hereby affirmed. The conviction and sentence of the Appellant therein therefore stand.

STEPHEN JONAH ADAH, J.C.A.: I was availed a copy of the draft of the judgment just delivered in Court by my learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA.

I am in complete agreement with the reasoning and conclusion that the Prosecution (Respondent) proved its case beyond reasonable doubt before the lower Court convicted and sentenced the appellant to death.

The evidence before the Court in this case was credible, unassailable and convincing that the appellant and no other was responsible to the death of the deceased baby Musa Danladi.

I therefore, agree with the lead judgment that this appeal lacks merit and I do dismiss the appeal. Judgment of the lower Court delivered on 6th November, 2019, is hereby affirmed.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; E.O. WILLIAMS-DAWODU. I agree with the reasoning, conclusion and orders therein.

Appearances:

Mrs. O. Akinseye George with Mr. Chukwudi Cletus Mgbada For Appellant(s)

Mr. M. Enagi, ACSC with him, MOJ Niger State For Respondent(s)