DARE ADELEYE v. THE STATE
(2014)LCN/7263(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of June, 2014
CA/AK/30C/2012
RATIO
BURDEN OF PROOF: WHETHER THE BURDEN OF PROOF SHIFTS FROM THE PROSECUTION IN A CRIMINAL TRIAL
In a criminal trial, the onus lies throughout on the prosecution to establish the guilt of the accused beyond reasonable doubt. The burden does not shift. Even where the accused in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden. See Akinfe V. State (1988) 3 NWLR (Pt. 85) 729 and Igabele V. State (2006) 6 NWLR (Pt. 875) 100. per JAMES SHEHU ABIRIYI, J.C.A.
WHETHER THERE CAN BE FURTHER ENQUIRY WHEN THE CAUSE OF DEATH IS UNCERTAIN
It is instructive to note that no admissible evidence was led oral or medical to establish that the deceased was struck on the head and with what likely weapon. On the uncorroborative evidence before the Court there is no evidence of the cause of death of the deceased. It has been held that where there is no certainty as to the cause of death, the enquiry should proceed no further. See Offorlere V. State (2000) 12 NWLR (Pt. 631) 415. Since no evidence was led to show that deceased was stabbed on the head there was no basis for linking the appellant with the act of the person alleged to have committed the offence. per JAMES SHEHU ABIRIYI, J.C.A.
WHETHER IN A MURDER CASE, THE PROSECUTION MUST ESTABLISH THE CERTAIN CAUSE OF DEATH AND SHOW THAT IT WAS AN ACT OF THE ACCUSED PERSON THAT RESULTED IN THE DEATH
However, I would like to add some few words, in every case where it is alleged that death has resulted from the act of a person, a casual link between the death and the act must be established and proved beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. See the case of Offortere v State (2000) 12 NWLR (Pt.681) at 415 and Oche v State (2007) 5 NWLR (pt.1027) 214 at 233.
The proper prosecution should have ensured that adequate evidence of casual link of the cause of death and the Appellant’s act was presented at the trial. If the cause of death has not been proved the voyage of discovery the culprit will be a futile-one.
In the case of Ineanyighichi Apugo v. The State (2006) 7 SCNJ – 587. The Supreme Court per Niki Tobi JSC held that, “In a murder case the prosecution has a duty to establish the cause of death with certainty and show that it was the act of the accused person that cause the death”.
For a court to convict an accused for murder the prosecution must prove beyond reasonable doubt that the accused person did something or omitted to do something he had a duty to do by law and that the said act or omission resulted in harm to the deceased. per MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMAD AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
DARE ADELEYE – Appellant(s)
AND
THE STATE – Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): The appellant was charged on a one-count charge of murder contrary to Section 319 (1) of the Criminal Code, Cap 30, Laws of Ondo State, 1979 at the High Court of Ondo State, Holden at Oka Judicial Division, Akoko. The appellant was convicted and sentenced to death by hanging. He has appealed to this Court against the conviction and sentence.
The facts of the case as can be gathered from the evidence of the three witnesses called by the prosecution are as follows. The deceased Rotimi Oredusi was the son of Margaret Oredusi (PW1). On the date of the incident, Solomon Adeleye (PW2) brother of the appellant came to PW1’s house and invited the deceased to the burial ceremony of his late brother in-law. Later that evening, the PW2 returned to PW1’s house and told her that her son Rotimi Oredusi quarreled with the appellant and the appellant killed him.
The matter was reported to the Divisional Police Headquarters Akoko. The case was transferred from there to the State C. I. D Akure, Homicide Section. Sgt. Bola Okunlenu (PW3) and three other police officers were assigned to investigate the case. They visited the scene in the company of the former I.P.O. from Supare Divisional Headquarters. At the scene they recovered one face Cap with blood stain. They visited the hospital and confirmed that the deceased was really dead.
Although the appellant had purportedly made two extra judicial statements in which he said he struck the deceased on the head with a screw driver in one statement and a plug spanner in the other, in the Court he made a u-turn. According to him there was disagreement between him and the deceased. The deceased started to beat him. He appellant ran to some people standing by for help but the deceased did not heed their advice, instead he started quarrelling with them too saying that the matter was between the two of them and they had no business in it. The deceased started a fight with those people. In the process, the deceased was injured and another person. The two injured people were taken to the hospital where they stayed until the next day.
The next day at about 8.00 a.m. he saw a policeman. The policemen arrested him and took him to the Police Station where he was informed that Rotimi had died.
From the resume of the facts above the respondent called three witnesses while the appellant called none but gave evidence in his defence. The respondent tendered three exhibits, two extra judicial statements of the appellant and a face cap. To prosecute this appeal, the appellant filed a notice of appeal, containing six grounds of appeal from which the following issues for determination were presented:
(i) Whether in the light of the material contradiction in Exhibits A & C, the evidence of the witnesses to the police and at the trial that are hearsay the trial Court was right to have convicted the appellant in the absence of any corroborative evidence. Issue No.1 relates to grounds No. 2 and 3 of the Grounds of Appeal.
(ii) Whether the conviction of the appellant solely on Exhibits A, B & C sufficiently satisfies the legal requirement that the offence of murder be proved beyond reasonable doubt. Issue No.ii relates to ground No 4 of the Grounds of Appeal.
(iii) Whether having regard to the evidence adduced at the trial the learned trial judge gave a judicious consideration of the case of the appellant. Issue No. iii relates to grounds No. 5 and 6 of the grounds of appeal.
The respondent on the other hand distilled the following issues for determination:
(1) Whether in the light of Exhibit A (Appellant’s confessional statement statements dated 23/8/2005) and Exhibit C (Appellant’s confessional statement dated 21/8/2005), the evidence of the witnesses to the police and at the trial, the trial Court was right to have convicted the appellant.
(2) Whether the conviction of the appellant sufficiently satisfies the legal requirement that the offence of murder be proved beyond reasonable doubt.
(3) Whether having regard to the evidence adduced at the trial the learned trial judge gave a judicious consideration to the case of the appellant.
It appears to me that the appeal revolves around one issue and one issue only which is: Whether the prosecution proved the offence of murder against the Appellant beyond reasonable doubt. The resolution of this issue will therefore be my focus in this appeal.
But first the arguments of learned counsel for the parties. Learned counsel for the appellant submitted that the only evidence upon which the trial Court convicted the appellant was exhibit A which was retracted at the trial. It was submitted that the retraction of Exhibits A and C at the trial made it imperative for the trial Court to seek corroboration of the facts depicted in Exhibits A and C. Learned counsel relied on Gabriel V. State (2010) 6 NWLR (Pt.1190) 280 at 323 and State V. Salawu (2011) 18 NWLR (Pt.1279) 580 at 625.) Exhibit A it was submitted was contradicted by Exhibit C because Exhibit A states that the appellant stabbed the deceased with a screw driver while Exhibit C states that he used a plug spanner. Also while the appellant said in Exhibit A that he saw the white face cap Exhibit B he did not say so in Exhibit C. In the face these apparent inconsistencies in Exhibits A and C, it was submitted, both exhibits ought to have been corroborated to sustain a conviction. Reliance was also placed on Gabriel V. The State (Supra). It was submitted that even though the trial Court relied on Exhibit A, the confessional statement of the appellant to found the conviction, the prosecution did not offer any independent evidence to corroborate or confirm the facts stated in the said Exhibit A. The prosecution it was submitted did not present any autopsy or medical evidence to show that the death was caused by a screw driver or a plug
spanner.
It was submitted that the cap which PW3 said he found at the scene of the incident was not shown to belong to the deceased or that the blood stains on the cap were those of the deceased.
It was submitted that the evidence relied upon by the trial Court as corroboration was clearly inadmissible evidence. The finding of the trial Court that exhibit A gave the Court a clearer picture of how the deceased was killed by the appellant, it was submitted, is perverse.
It was submitted that exhibit B could not corroborate exhibit A and the trial Court wrongly held so. This is because exhibit B was not credible. Learned counsel for the appellant submitted that the failure to tender medical evidence since the deceased was taken to hospital amounts to withholding evidence. Reliance was placed on State V. Salawu (2011) 8 NWLR (Pt. 1279) 580 at 605/606.
It was submitted that where the prosecution merely proves as in this case that the deceased died without showing that the appellant caused his death the trial Court ought to have resolved the doubt in favour of the appellant.
It was submitted that in a murder trial proof of cause death takes precedence over the quest into who caused the death. Thus if the cause of death has not been proved the voyage of discovering the culprit will be a futile one. Reliance was placed on Tegwonor V. State (2008) 1 NWLR (Pt.1069) 630 at 652 and Oche V. State (2007) 5 NWLR (Pt.1027) 214 at 233.
It was submitted that there is no admissible evidence that the hole made in the face cap was as a result of the use of or infliction with a screw driver. Also how did the respondent come the conclusion that the blood on the cap was that of the deceased? No evidence was led to link the deceased with the cap.
It was further submitted that for a confession to be valid it must not be “obtained” or by interrogatory in form such that it suggested an inducement or a prompting of the accused. We were referred to Afolahan V. State (2012)1 13 N.W.L.R (1316) 185 at 201. Learned counsel then proceeded to dissect Exhibit A and submitted that the facts on Exhibit A were not voluntarily made but obtained from the appellant by interrogation at a question and answer session and ought not have been relied upon to convict the Appellant.
It was submitted that the learned trial Judge concentrated more on building a case for the respondent and did not give due consideration to the case of the Appellant by considering his evidence in defence. This it was submitted, led to a miscarriage of justice. We were referred to Edoho V. State (2010) 14 NWLR (Pt.1214) 651 at 681 – 682. It was submitted that if the testimony of the appellant had been considered it would have been discovered that it raised very reasonable doubts in the case of the respondent despite the confessional statements.
On his part learned counsel for the respondent submitted that if an accused person makes an extra judicial statement amounting to a confession, the fact that his testimony in Court is inconsistent with that extra-judicial statement, does not mean that the Court will not act on the extra judicial statement. We were referred to Egboghhonome V. State (1993) 9 SCNJ 1, Akpa V. State (2001) FWLR (Pt.56) 735; Sule V. State (2009) ALL FWLR (Pt.481) 813. The inconsistency rule, it was submitted does not apply to retracted extra judicial confession of an accused person. We were referred to Usung V. State (2009) All FWLR (Pt.462) 1203. The law, it was submitted, is that a person can be convicted on his confessional statement. We were referred to R. V. Obiasa (1962), All NLR 651, Bature V. State (1994) I NWLR (Pt.320) 20, Mumuni V. State (1975) 6 SC.79 Aremu V. State (1984) 6 SC.85, Akinfe V. State (1988) 3 NWLR (Pt.85) 729, Akpa V. State (2008) All FWLR (Pt. 420) 603 at 665 – 666 and Otufale V. State (1968) NWLR 261.lt was submitted that the Appellant at no time said he made the statements Exhibits A and C involuntarily but merely said that he could not read the document shown him because the handwriting was not legible.
It was submitted that there were no contradictions capable of rendering the conviction of the appellant unsafe. The contention of the appellant is that the mention of a “screw driver” in exhibit A as the weapon used to kill the deceased is different from a “plug spanner” which is the term used in Exhibit C. lt was submitted that these two words cannot be said to be contradictory. That using a screw driver to kill the deceased is not completely different from using a plug spanner which is a mere discrepancy. What is material, it was submitted is that the act of killing the deceased was never contradicted in either statement. In any case either of the two contradictory weapons is capable of causing death to the deceased. We were referred to Princent V. State (2002) 18 NWLR (Pt.798) 28 – 29.
It was submitted that it was proved beyond reason doubt through Exhibit A that the appellant caused the death of the deceased.
It was submitted that in the absence of medical evidence the Court can infer the cause of death which was what the trial Court did in this case.
It was submitted that the prosecution proved intention of causing death. It was submitted that the oral testimony of the appellant was vague and did not point to any other person that committed the offence. This is because he simply stated that the deceased died when fighting with another person and gave no details as to who this other person was and did not give evidence to suggest that the perpetrator was not him.
In a criminal trial, the onus lies throughout on the prosecution to establish the guilt of the accused beyond reasonable doubt. The burden does not shift. Even where the accused in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden. See Akinfe V. State (1988) 3 NWLR (Pt. 85) 729 and Igabele V. State (2006) 6 NWLR (Pt. 875) 100.
Sections 316 and 319 (1) of the Criminal Code Laws of Ondo State provide as follows:
“316 Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances that is to say –
1. if the offender intends to cause the death of the person killed, or that of some other person;
2. if the offender intends to do to the person killed or to some other person some grievous harm;
3. if the death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such a nature as to be likely to endanger human life;
4. if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant; or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
5. if death is caused by administering any stupefying or overpowering thing for either of the purposes last aforesaid;
6. if death is caused by willfully stopping the breath of any person for either of such purposes; is guilty of murder.
319 (1) Subject to the provisions of this Section any person who commits the offence of murder shall be sentenced to death.”
To establish a case of murder the prosecution has to prove the following:
(a) that the deceased dead;
(b) that the death was not natural;
(c) that the act of the accused person caused the death of the deceased, or and;
(d) that the deceased died as a result of injury caused by the accused person. See Okoro V. State (2012) 1 SCNJ 36.
In the lower Court the PW1 testified to the fact that the deceased who was her son had earlier been invited by the PW2 to a burial ceremony and that the latter returned to inform her that the appellant killed her son. She went to the hospital and confirmed that her son was dead. In my view the death of the deceased has been established as PW 3 also said he saw the corpse.
The PW2 who reported the death to PW1 said it was the appellant who told him that he fought with the deceased. The evidence of this witness was not helpful to the respondent’s case as the above piece of evidence is hearsay. Secondly the PW2 nowhere informed the Court that it was the appellant who killed the deceased. In any case this witness was declared a hostile witness. It is the law that if a witness is treated as hostile by the party calling the witness, then the sworn evidence of that witness as well as the witness’s previous unsworn statement become unreliable and both must be rejected. See Okonkwo V. State (1998) 8 NWLR (Pt. 561) 210.
PW3 merely tendered Exhibit B which he said they recovered at the scene as well as the statements of the appellant Exhibits A and C. Exhibit C was tendered by the appellant himself through the PW3. When Exhibit A was sought to be tendered, the appellant objected on the ground that he did not sign it. Learned trial Judge examined the signature in Exhibit A in his judgment and compared it with the signature in Exhibit C and concluded that the Appellant signed Exhibit A. In my view that exercise was uncalled for since the effect of the denial was merely that the appellant did not make exhibit A.
Although the appellant tendered Exhibit C which was a confessional statement, in Court he retracted both Exhibit C which he tendered and Exhibit A also a confessional statement which the police stated that he made and which he denied making. On the weight to be attached to a confessional statement whether retracted or not retracted the Courts have over the years applied the tests laid down in R V. Sykes (1913) 8 CR App. R 233. These are the questions a Judge must ask himself on the weight to be attached to a confessional statement:
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements made in it of facts true as far as they can be tested?
(d) Was the prisoner one who had the opportunity of committing the murder?
(e) Is the confession possible?
(f) Is it consistent with other facts which have been ascertained and have been proved? See Oseni V. The State (2012) 2 SCNJ 215 at 233 Uragboe V. State (2007) 6 NWLR (Pt.1019) 500
Learned counsel for the appellant argued at length on Exhibits A and C which are the statements of the appellant made at two police stations. He attacked Exhibit A which was made at the CID Headquarters Akure on the ground that it was made as a result of question and answer and so unreliable. There was nothing from the evidence of the appellant pointing to the fact that the said Exhibit A was a result of a question and answer. It was not even part of the respondent’s evidence that the said Exhibit A was a product of question and answer. This cannot be established by appellants counsel dissecting the statement in his address as address of counsel no matter how brilliant cannot amount to evidence. The Court cannot also in chambers look for evidence to establish the fact of Exhibit A being a result of question and answer as a trial is a public demonstration of the cases of parties.
Learned counsel for the appellant also argued that there was inconsistency in the evidence led by the prosecution as relates to Exhibits A and C. This is because while in Exhibit C the appellant stated that he used a plug spanner to strike the deceased on the head resulting into the gushing out of blood from the head; in Exhibit A he stated that it was a screw driver that he used. I agree with the argument that this was a mere discrepancy. But it was not a material contradiction. As learned counsel for the respondent rightly pointed out, using a plug spanner or a screw driver is the same.
The discrepancy upon which learned counsel for the appellant made heavy weather could not by itself affect the respondent’s case against the appellant.
The learned counsel for the appellant submitted that the only evidence on which the lower Court convicted the appellant is Exhibit A which was retracted. That is not the whole truth. At page 83 of the record of appeal, the lower Court stated thus:
“As I earlier stated, it is from Exhibit A, B and C that one can garner the evidence with which one can draw a conclusion on whether the death of the deceased was caused by the accused or not.”
At page 86 of the record of appeal the lower Court stated extensively on the evidence of PW2 thus:
“In the instant case I have thoroughly scrutinized the evidence of the prosecution witnesses and I am of the opinion that the questions posed can be answered in the positive. On the 1st question posed, even PW2 before he was declared hostile, admitted that it was at the burial ceremony that Mr. Rotimi Oredusi was attacked and murdered. The story was further confirmed when PW2 stated in his evidence that when he was arrested together with the accused the accused told him that he fought with the deceased. The accused did not refute the story of his brother that he is the one that fought the accused. Of course the story of the investigating Police Officer….. gave positive answers to the story of the accused, PW1, PW2 that the accused ‘is’ the one that fought the deceased on that fateful day.”
It is clear from the foregoing that the lower Court relied on the evidence of all witnesses called by the respondent and all the exhibits tendered including the story of the appellant which story is not identified to convict the appellant.
Which story of the appellant did the lower Court rely on? Surely it could not have been the testimony of the appellant in Court which the lower Court dismissed as an afterthought and strange. This means that the story of the appellant relied upon are the extra judicial statements exhibits A and C which were retracted. Surely the lower Court was not entitled to look for corroboration in the said exhibits which needed to be corroborated. Corroborating evidence is evidence that differs from but strengthens or confirms what other evidence shows (esp. that which needs support. See Black’s Law Dictionary 9th Edition at page 636.
In his evidence in Court the appellant did not admit striking the deceased with any weapon or striking him at all. There was therefore no story of the appellant that corroborated the said Exhibits A and C.
As indicated earlier the evidence of PW1 only pointed to the fact that her son died. It did not support the case of the respondents that the appellant fought with deceased as the lower Court wrongly found. The learned trial Judge in his judgment heavily relied on the evidence of PW2 which is mainly hearsay even when the witness had been declared hostile by the lower Court. The evidence of this witness which he relied on to find corroboration was inadmissible in law and ought to have been rejected by the lower Court. See Okonkwo V. State (Supra).
The lower Court in its judgment also found that the PW3 who investigated the case gave positive answers to the story of the accused without stating what answers the PW3 gave. I have looked at the evidence of PW3 and can find no such positive answers. In his evidence the PW3 claimed that they recovered a blood stained cap at the scene and that they later found the cap to be that of the deceased. How did they later find that it was that of the deceased? He did not see the deceased wear it. The person who purportedly told them that it was that of the deceased was not called to testify. No evidence was led to show that the deceased wore the cap on the date of the incident. I am therefore unable to see any basis for the finding that the PW3 gave any positive answers.
The learned trial Judge found that by stabbing the deceased with a screw driver on the head, the cap on the head of the deceased Exhibit B was pierced. On the available evidence before the lower Court there was no basis for this finding. It is shown nowhere in the entire evidence led that the cap was pierced by a screw driver. The lower Court found that investigation at CID revealed that the appellant used a screw driver to pierce through the face cap of the deceased and into his skull. There was no basis for this finding. In his evidence in Court the PW3 merely stated of the cap thus:
“I can also identify the blood stained cap we recovered at the scene. We later found the cap to be that of the deceased.”
I had earlier stated that no evidence was led to show how the respondent’s witness later found that the cap was that of the appellant. PW3 did not say that the cap was pierced through by a screw driver. As learned counsel for the appellant rightly argued no evidence was led to show that the blood on the cap Exhibit B is that of a human being. No evidence was led to show that the hole on the cap was pierced by a screw driver. No evidence was even led to show that the cap belonged to the deceased or that he even wore it on the date of the incident.
The lower Court also found that the appellant had the opportunity to commit the offence because the appellant himself stated that he was with the deceased and that there was a quarrel between the deceased and himself. But that when it came to how the deceased died the appellant denied knowledge of it. It is true that the appellant admitted that he was with the deceased where a burial ceremony was going on in his evidence in Court. He stated in part as follows:
“There was a disagreement between us. He then started to beat me. I ran to some people standing bye (sic) to help me but Rotimi did not head their advice, instead, he started quarrelling with them too, saying the matter between us was none of their concern. He started a fight with those people as they tried to retrieve the key of the motor bike from me. In the process he Rotimi got injured and the other person too. They were both taken to a hospital where they stayed till the next day. At around 8.00 am the next day, I saw a policeman, they arrested me and took me to a police station where I was informed that Rotimi had died.”
It is clear from the foregoing that the appellant said there was a quarrel between him and the deceased and it was the latter that started beating him and he ran to some people for safety. I am surprise that the lower Court dismissed this defence as strange and an afterthought. There is evidence before the Court that PW1, PW2 and the deceased went to a burial ceremony. So the possibility that there were other people there apart from PW1, PW2 and the deceased to whom he ran is very high. The appellant said that the deceased was drunk. This is also a possibility since it was a ceremony. The PW3 said under cross-examination that he saw the remains of the deceased and that the deceased was bigger than the appellant which points to the evidence of the appellant that the deceased was bigger than him and when the deceased started beating him he ran for safety. If the lower Court had considered this evidence instead of dismissing it as strange and an afterthought, he would have found that some other person/s other that the appellant would have caused the death of the deceased.
From what I have stated above, the evidence of PW2 could not corroborate the confessional statements of the appellant when it was mainly hearsay and also ought to have been rejected particularly when the witness was declared hostile. There was nothing in the evidence of PW1 and PW3 to show that the appellant struck the deceased even with his hand, a spanner or screw driver. Exhibit B was not corroborative evidence because it was not linked to the deceased. As pointed out earlier corroborative evidence is defined as evidence given by an independent witness which confirms in some material particular not only that a crime has been committed but also that it was committed by the accused person. See Amadi V. State (1993) 1 NWLR (Pt. 314) 644.
It is clear from all that I have stated in this judgment above that Exhibits A and C which are confessional statements of the appellant have not been corroborated in anyway. It will therefore be unsafe to convict on them.
As shown also elsewhere in this judgment the evidence of the appellant in Court casts some doubt as to the possibility of his causing the death of the deceased when he said that the deceased started beating him and he ran to some people for help and the deceased started a fight with those people during which the deceased sustained injury and was taken to the hospital.
It is instructive to note that no admissible evidence was led oral or medical to establish that the deceased was struck on the head and with what likely weapon. On the uncorroborative evidence before the Court there is no evidence of the cause of death of the deceased. It has been held that where there is no certainty as to the cause of death, the enquiry should proceed no further. See Offorlere V. State (2000) 12 NWLR (Pt. 631) 415. Since no evidence was led to show that deceased was stabbed on the head there was no basis for linking the appellant with the act of the person alleged to have committed the offence.
It is clear from all that I have stated above that there is doubt in the case of the respondent which should be resolved in favour of the appellant.
The only issue formulated by me is therefore resolved in favour of the appellant. The appeal is allowed. The conviction and sentence of the appellant are hereby quashed.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment just delivered by my learned brother James Shehu Abiriyi, JCA. I agree with the reasoning and conclusion that cause of death has not been proved beyond reasonable doubt.
However, I would like to add some few words, in every case where it is alleged that death has resulted from the act of a person, a casual link between the death and the act must be established and proved beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. See the case of Offortere v State (2000) 12 NWLR (Pt.681) at 415 and Oche v State (2007) 5 NWLR (pt.1027) 214 at 233.
The proper prosecution should have ensured that adequate evidence of casual link of the cause of death and the Appellant’s act was presented at the trial. If the cause of death has not been proved the voyage of discovery the culprit will be a futile-one.
In the case of Ineanyighichi Apugo v. The State (2006) 7 SCNJ – 587. The Supreme Court per Niki Tobi JSC held that, “In a murder case the prosecution has a duty to establish the cause of death with certainty and show that it was the act of the accused person that cause the death”.
For a court to convict an accused for murder the prosecution must prove beyond reasonable doubt that the accused person did something or omitted to do something he had a duty to do by law and that the said act or omission resulted in harm to the deceased. This has not been proved in the instant case. It is in the light of the above reasons and more details given by my learned brother Abiriyi, JCA in the lead judgment that I too find merit in the appeal and it is accordingly allowed.
MOHAMMAD AMBI-USI DANJUMA, J.C.A.: I have been availed the benefit of reading in draft the leading Judgment of my noble Lord, James Shehu Abiriyi, JCA in this Appeal, and I am at one with his Lordship that this appeal should succeed.
The Appellant was charged with the heinous offence of murder. That is a capital offence that snuffs the life (on the basis of the law as it is now) off a convict.
It is for this reason that the courts must be meticulous and ensure that all defences raised, no matter how stupid or unreasonable are subjected to a meticulous scrutiny. See Shande Vs The State. (2005) 12 NWLR Pt. 1039, page 309 @ 320H.
It is for this reason that all the ingredients of the offence charged must be proved; else the benefit of doubt if any must be given to the accused person.
The death of a human being, no doubt had been proved. However, who caused it? Had it been linked to the accused? Was any act of the accused shown to have caused it?
Although the Appellant (who was the Accused) said he ran away and the deceased started fighting with other people and he was injured; and although one may ask how he knew that the accused was injured by others when he had ran away and did not see, the possibility still is that any of those people may have injured the deceased. The elimination of that possibility was not done, by the prosecution.
Indeed, as rightly considered in the lead Judgment, there had not been proved the cause of death of the deceased in the instant appeal.
As this court stated Per Bage, JCA in CA/L/69/12 Mohammed Umaru Vs The People of Lagos State, delivered on 11th October, 2012 thus:
“Before concluding, let me state the fact that the prosecution of the case by the state was not of much assistance to the trial court. The duty to prove beyond reasonable doubt the guilt of an accused person as established by law is that of the prosecution and not to the court In this appeal all the three (3) ingredients of the offence of armed robbery under S.1 (2) of the Robbery and Firearms (Special Provisions) Act, Cap R11, 2004 have not been established against the Appellant. The Appeal is meritorious and is hereby allowed by this court.”
I, therefore, concur in:
(1) Allowing the instant appeal, (2) setting aside the Lower Court’s Judgment and (3) in quashing the conviction and sentence passed on the Appellant in charge No.HKA/29/2006 on the 31st March, 2011.
Appearances
Femi Onibalusi Esq. For Appellant
AND
Bunmi Niyi Arajuwa (Mrs.) Deputy Director Public Prosecutions Ondo State Ministry of Justice with A. A. Oladuniye. For Respondent
