ELINA SHIDE v. THE STATE
(2018)LCN/11899(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/YL/145C/2017
RATIO
CRIMINAL LAW: DOCTRINE OF LAST SEEN
“It was submitted that the doctrine of last seen stipulates that a person last seen in company of a deceased person is presumed to bear full responsibility for the death of the deceased unless he offers reasonable explanation as to how the deceased met his/her death. The Court was referred to Onitilo vs. The State (2017) 272 LRCN 76 100.” JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
ELINA SHIDE Appellant(s)
AND
THE STATE Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment delivered on 28th March, 2017 in the High Court of Taraba State holden at Takum.
The Appellant was convicted and sentenced to death by the High Court (the Court below) on the following charge:
STATEMENT OF OFFENCE
”Culpable homicide punishable with death under Section 221(a) of the Penal Code.”
PARTICULARS OF OFFENCE
”That you ELINA SHIDE on or about 30th of October, 2013 at Bawuro Village Takum Local Government of Taraba State within the Takum Judicial Division, committed an offence of culpable homicide punishable with death, to wit: with the intent to cause death you inflicted fatal injuries on the head, face and right hand of LYDIA SHIDE with a cutlass and there caused her death instantly.”
The facts of the case for the Respondent at the Court below are contained in the evidence of the only two witnesses called by the Respondent. The evidence of PW1 and PW2 is at pages 20 to 21 and 22 – 23 of the record of appeal. It is reproduced immediately hereunder:
”P.W.1: Male, adult, Christian affirm and speaks English. I am A.S.P. Pagiel Lera. I am a Police Officer. I am attached to the CID department of the Nigeria Police Jalingo. I am attached as exhibit keeper and also in charge homicide cases, I know Inspector Samson Dumi sometime in November, 2013 precisely 14-11-2013, I was in the exhibit room when Samson Dumi brought a Cutlass as exhibit for registration and custody. He said I was in connection with culpable homicide. Involving the accused. I received it and registered it in and registered it in my register I registered it with NO: CER/91/2013.
After registering it, I attached a Label No. CER/91/2013 on the exhibit for purposes of easy identification. I kept it up to today. I brought it to Court. This is the exhibit.
Mr. Johnson: we seek to tender the cutlass.
Mr. Solomon: no objection.
Court: the cutlass is admitted as Exhibit ?A?.
XX: Anybody can buy cutlass in the market. But this was brought to meas exhibit?.
P.W.2: Male, adult Christian affirm and speaks English. I am Inspector Samson Dumi I live in Mallam Joda Ward in Jalingo, I am a Police Officer, I am an investigator as well as a prosecutor. I perform other police special duties.
I know the accused.
I know her in connection with a case of culpable homicide.
The case was transfer to the State CIID Office Takum Police Division in November, 2013. I was detailed to investigate the case. The accused and the case file were handed over to me Divisional I.P.O one P.C Elishe Lawi. There was a cutlass attached as an exhibit.
On 14-11-2013 at about 1300hrs I took the accused to our statement room. I cautioned her in English. I read and interpreted to the accused in Tiv Language by P.C. Tawe Shaa. She said she understood and thumbprint the words of caution. The accused thought voluntered a statement in Tiv. The accused made the statement in Tiv and it was interpreted to me by P.C Tawe Shaa. I recorded same in English. The statement was a confession.
I took the accused to my superior ASP. Pagiel Lera. ASP Lera asked the accused if she was the one who made the statement she admitted making the statement. P.C. Tawe Shaa also did an interpretation Asp Pagiel Lera. The confessional statement was then countersigned by the superior officer Pagiel Lera.
I can identify the statement through my name and writing as well as signature. This is the statement.
MR. ABBA: I seek to tender the statement.
MR. IGYOR: We object to the admissibility of the statement, our client said she never made my statement.
MR. ABBA: I have nothing to say.
COURT: I have ruled several times that under the Evidence Act a statement is not admisible only if it was not made voluntarily or obtained by inducement or fraud or otherwise. Retracting from a statement duely goes to the weight to be attached. Even that depend, on whether or not the Court believes that the statement was made. In the light of this I overrule the objection. The statement of the accused is admitted as Exhibit ‘B’.
P.W: After recording the statement of the accused I took the cutlass that was attached to the case file to the exhibit keeper for registration. It was registered with CER No: 91/2013.
XX: I would not be in position to say whether or not P.C Tawe Shaa interpreted the statement of the accused correctly. Tawe Shaa has been my colleague for the past 3 years, I did not visit the scene I cannot recall whether or not it was the date. I recorded the statement that was indorsed. The interpreter filed form and know the language in which he interpreted the statement.
The defence of the Appellant contained at page 49 to page 50 of the record of appeal is as follows:
D.W.1: Female, adult, affirm and speaks hausa. My name is Elina Shide, I am 20 years old. I live in Takum but presently I am on remined in Jalingo prison. I am a farmer.
I don’t know why I am in Court. I don?t know I kill anyone. I was together with my mother she asked me to cook and take the food to her in the farm. That was in Bawiro Village. I cooked the food and took it to her in the farm. She asked me to keep the food under tree and I did.
My mother then asked me to go and fetch firewood that we would take home. I went and brought the firewood after fetching the firewood. I came back to the place and did not see her. My eyes beging dark I fell down and was crying I do not know why I was crying.
Later I regained my senses and saw people. I fainted again I over realised I was in the hand of authority that is the police. The police told me that I murdered someone, my mother. I told them that I did not kill my mother. Apart from telling them that I did not made any statement to the police. I did not recognised any of the people I saw in the front where I regained consciousness.
I stayed with my mother in Bawiro for over two days before the incident happened. It was only me went to the farm with my mother. That is all.
XX: Nil.
I have not reproduced the statement of the Appellant (Exhibit B) for reasons to be stated later in the judgment.
After considering the evidence reproduced above, the statement of the Appellant to the police Exhibit B and addresses of learned counsel for the parties, the Court below made the following finding:
”There is no evidence before me that creat (sic) doubt in the voluntariness and reliability of the confession made by the accused in Exhibit ?B?. I therefore have no doubt in the accuracy of Exhibit B such a confession alone is sufficient to sustain a conviction and I hold that Exhibit B can sustain the conviction of the accused. In the light of the foregoing. I find the accused guilty as charged.”
The Appellant has appealed against his conviction and sentence by a notice of appeal filed on 12th May, 2017. The notice of appeal contains four grounds of appeal.
From the four grounds of appeal, the Appellant presented the following lone issue for determination:
”Whether having regard to the facts and circumstances of this case and the totality of the evidence on record, the conviction and death penalty passed on the Appellant is liable to be quashed by this Honourable Court. (Distilled from Grounds 1, 2, 3 and 4).
The Respondent adopted the lone issue presented for determination by the Appellant:
Arguing the appeal, learned counsel for the Appellant submitted that to secure a conviction for the offence of culpable homicide punishable with death the prosecution must prove the essential elements of the offence and the burden of proof does not shift. We were referred to the decision of this Court in Deriba vs. State (2016) LPELR-40345 CA page 10 – 11.
It was submitted that all the ingredients of the offence must be proved.
The prosecution, it was pointed out, called two witnesses and also tendered a cutlass and a confessional statement of the Appellant (Exhibits A and B).
From the evidence adduced, it was submitted, the Appellant was nowhere linked with the cutlass as the cutlass was only dumped on the Court below. The Court was referred to the evidence of PW2.
It was submitted that from the evidence of the PW2, the following facts are shown:
1. That PW2 was not an eye witness.
2. The witness did not visit the scene of crime.
3. The witness did not testify as to whether any human being died.
4. The PW2 did not investigate to know the cause of death of that person.
5. That the PW2 did not testify as to the act of the Appellant that led to the death of any human being.
6. The PW2 did not record the statement of the Appellant who spoke in Tiv Language through an interpreter.
7. The PW2 did not know whether the interpreter correctly interpreted what the Appellant said in Tiv language to him.
It was submitted that from the evidence of the Respondent’s witnesses there is no evidence establishing the following:
(i) The fact of the death of Lydia Shide;
(ii) That the death of Lydia Shide was caused by the act of the Appellant;
(iii) That the act of the Appellant was intentional with knowledge that death or grievous bodily harm was the probable result.
It was submitted that for an accused person to be convicted for the offence of culpable homicide, it must be established that the act of the accused person caused the death of the deceased. The Court was referred to Oketaolegun vs. The State (2015) 9 SCM 196 at 212 – 213.
It was submitted that the Court below relied on the alleged confessional statement of the Appellant Exhibit B to convict the Appellant but that Exhibit B is documentary hearsay. It was submitted that the Court below erred when it relied on Exhibit B to convict the Appellant.
It was submitted that where an interpreter is used in the recording of the statement of an accused person such a statement is inadmissible unless the person who was used in the interpretation is called as a witness in the proceedings as well as the person who recorded the same. The Court was referred to F.R.N vs. Usman & Anor (2012) LPELR-7818 (SC) 18 ? 21 D ? G, and Ifaramoye vs. The State (2017) 4 SCM 1 at 23.
It was submitted that Exhibit B being an inadmissible evidence is irrelevant and cannot be used for any purpose.
The Court was urged to quash the conviction of the Appellant which was based solely on Exhibit B.
Learned counsel for the Appellant pointed out that when Exhibit B was being tendered in evidence, the Appellant denied making the statement. It was submitted that the Appellant having denied or retracted her confessional statement, it was incumbent on the trial Judge to have made a finding at the end of the case as to whether the Appellant made the statement or not before convicting her based on the retracted statement. We were referred to Haruna vs. A. G. of the Federation (2012) LPELR-7821 (SC) 16 A – C, Adedara vs. The State (2009) LPELR 8194 (CA) 82 and Lasisi vs. The State (2013) LPELR-20183 SC 18.
Learned counsel for the Respondent submitted that the well known general principle of law in a criminal trial is that the burden rests on the prosecution to prove the guilt of the accused person beyond reasonable doubt. We were referred to Section 135 (1) of the Evidence Act 2011. It was submitted that the concept of proof beyond reasonable doubt does not mean proof beyond all iota of doubt. We were referred to Egharevba vs. The State (2016) Vol. 258 LRCN 187 at 2011.
The standard of proof, it was further submitted, is not attained by the number of witnesses called by the prosecution. The evidence of a lone witness, if believed by the Court, can prove a criminal case beyond reasonable doubt, it was submitted. We were referred to Okiemute vs. The State (2016) Vol. 260 LRCN 1 at 42 – 43.
The Appellant, it was contended, confessed in Exhibit B that she was the person who murdered the deceased her mother. The murder weapon a cutlass, it was further argued, was also tendered in evidence without objection from the Appellant.
It was pointed out that the person who acted as an interpreter through whom Exhibit B was recorded did not actually give evidence at the trial. To that extent Exhibit B is caught up by the principle of law enunciated in F.R.N vs. Usman & Anor (supra).
However, it is the law, it was submitted that where an otherwise inadmissible piece of evidence is expunged from the record, the survival or otherwise of the case depends on whether the evidence left, if any can sustain the decision of the lower Court. The Court was referred to Section 251 (1) of the Evidence Act 2011.
Learned counsel for the Respondent contended that the defence of the Appellant in Court amounted to a confession. The Court was referred to Section 28 of the Evidence Act 2011 and Dogo vs. The State (2013) Vol. 221 LRCN 164 at 188.
It was submitted that from the defence of the Appellant and having regards to the combined effect of the provision to Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Sections 140 and 167 of the Evidence Act 2011 and the doctrine of last seen which also draws legitimacy from these constitutional and statutory provisions, the burden is squarely placed on the Appellant to give reasonable explanation as to how the deceased (her own mother) met her untimely death.
It was submitted that the doctrine of last seen stipulates that a person last seen in company of a deceased person is presumed to bear full responsibility for the death of the deceased unless he offers reasonable explanation as to how the deceased met his/her death. The Court was referred to Onitilo vs. The State (2017) 272 LRCN 76 100.
The Court was referred to the evidence of PW2 to the effect that the Appellant, the case file and cutlass attached as an exhibit were handed over to him; and that the cutlass was tendered without objection.
Learned counsel for the Appellant also referred to the testimony of the Appellant in Court that the police told her that she murdered her mother and she told them she did not kill her mother. That apart from telling the police this, she did not make a statement to the police.
Learned counsel for the Respondent argued that from the evidence of PW2 and the Appellant?s defence there is no doubt that the death of Appellant?s mother did occur but that rather than tell the Court how her mother died the Appellant attempted to raise an alibi for the first time in Court.
The burden was on the Appellant, it was argued, to explain how the deceased died otherwise the Court would infer that the Appellant killed the deceased.
?
Learned counsel for the Respondent maintained that even if Exhibit B was expunged from the record, the Court can still infer from the circumstances of the case and the evidence on record that the Appellant is ?guilty as charged.?
13
Appellant?s counsel in reply to submission of Respondent?s argument that the judgment of the lower Court be varied by sustaining the conviction of the Appellant on a different ground submitted that a Respondent who intends to urge the Appellate Court to affirm the decision of the trial Court on a different ground from the ground(s) upon which the judgment was anchored or based must file a Respondents Notice. The Court was referred to Zango vs. Dantata & Sawoe Construction Nigeria (2015) LPELR-25898 (CA) 14 ? 15 and Nwadibia & Ors vs. The State (2009) LPELR-8756.
It was submitted that the Respondent having failed to file a Respondent?s notice cannot validly urge the Court to sustain the conviction of the Appellant on another ground rather than the one upon which the judgment was based.
The doctrine of last scene, it was submitted, cannot apply in this case as there was no eye witness to the fact that that the Appellant was the last person seen with the deceased. The prosecution, it was submitted, failed to call any witness that saw the Appellant last with the deceased.
In criminal cases, the burden of proving the charge against the accused person lies on the prosecution while the standard of proof is proof beyond reasonable doubt. Proof beyond reasonable doubt means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence. This means that the prosecution has the duty of proving the essential elements of the offence contained in the charge. The law merely places on the prosecution the onus to produce material evidence and witnesses to testify before a trial Court. That is not an impossible task. All the prosecution is required to do is simply present evidence and witnesses which are convincing against an accused person so that it leaves no reasonable man in doubt as to the probability of the accused person committing the alleged offence. Every element constituting the offence allegedly committed by the accused person must be established beyond reasonable doubt. See The State vs. Ajie (2000) LPELR-3211 SC page 16, Shurumo vs. The State (2010) LPELR-3069 SC; Chukwuma vs. F.R.N (2011) LPELR-863 SC page 19 – 20 and Edibi vs. The State (2009) LPELR-8702 CA page 14.
Even where an accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden of proving the charge against him. This is to avoid convicting a wrong person for an offence he never committed. See People of Lagos State vs. Umaru (2014) 3 SCNJ 114 at 137 per Muhammad JSC.
The Appellant was charged with the offence of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code. It behove therefore for the prosecution to prove beyond reasonable doubt the following:
(1) That the death of a human being had actually taken place.
(2) That the death was caused by the accused person.
(3) That the act that caused the death of the deceased was done by the accused person with the intention of causing death or that the accused knew that death would be probable consequence of his act. See Aliyu vs. The State (2013) LPELR-20748 page 25.
I deliberately reproduced in full the evidence adduced by the prosecution in order to expose its barren nature. From the evidence of the two witnesses PW1 as an Exhibit keeper was given a cutlass Exhibit A to keep and he did.
PW2 was detailed to investigate the case and he proudly announced under cross examination that he ”did not visit the scene.” The only thing he did as an investigator was to record the statement of the Appellant (Exhibit B) in English language even though the statement was made in Tiv Language. One Tawe Shaa interpreted the statement of the Appellant from Tiv to English. The said Tawe Shaa was not called as a witness.
It is the law that where an interpreter has been used in taking down a statement of an accused person both the person who wrote down the statement and the person who interpreted it must be called as witnesses. In the case of the person who recorded the statement, he would state the procedure he followed in recording the statement. The person who interpreted would be presented as a witness to testify that he interpreted. It is then open to the defence to cross ? examine him. The statement is hearsay and inadmissible if the interpreter does not testify in Court. This is because a witness is expected to testify in Court on oath on what he knows personally. See Olalekan vs. The State (2001) 12 SCNJ 94 and F.R.N. vs. Usman & Anor LPELR-7818 SC. In the instant case, the Court below relied entirely on the statement of the Appellant Exhibit B. That statement was interpreted from Tiv language to English. The person who translated the statement from Tiv Language into English was not called as a witness. Exhibit B is therefore hearsay evidence. The conviction and sentence to death of the Appellant based solely on hearsay evidence cannot stand.
Learned counsel for the Respondent has argued forcefully that the conviction can be sustained on the defence of the Appellant in Court. It is interesting to note that after the Appellant had testified in her defence in Court, she was not cross examined. The Court below in the judgment was dumb to her defence in Court too.
It is the law that failure to cross-examine a witness constitutes admission of the evidence adduced by that party. See the decision of this Court in Maidabo vs. State (2016) LPELR-40245 CA and the decisions of the Supreme Court in Waziri vs. The State (1997) 3 NWLR (Pt. 496) 689 at 721 and Okoro vs. The State (2012) LPELR- 7846 SC.
From the testimony of the Appellant in Court reproduced fully in the judgment above the
1Appellant denied in clear terms the allegation that she killed her mother. For emphasis I reproduce the relevant portion of her defence as follows:
”The police told me that I murdered someone, my mother. I told them that I did not kill my mother.”
The failure by the Respondent to cross-examine the Appellant constitutes an admission by the Respondent that the Appellant did not kill the mother.
As I pointed out above, the Court below was dumb in the judgment on the defence of the Appellant in Court. This was a failure to do justice in the matter. The Court below erred when it failed to consider the defence of the Appellant.
Surprisingly learned counsel for the Respondent has propounded from the defence the principle of ”last scene.” He argued forcefully that the Appellant was the person that last saw the deceased. From the defence of the appellant deliberately reproduced above in full too, the claim of the learned Director of Public Prosecutions, Taraba State that the Appellant was the person who last saw the deceased is not borne out from the testimony of the Appellant in her defence in Court.
The Appellant stated thus in the said testimony. ”I went and brought the firewood after fetching the firewood. I came back the place and did not see her. My eyes beging dark I fell down and was crying…”
Furthermore as learned counsel for the Appellant rightly pointed the prosecution did not call any witness who saw the Appellant last with the deceased.
Learned Director of Public Prosecutions also dwelt at length on a purported resort ”to some lame attempt to raise an alibi for the first time in her evidence in Court.” I am sure learned Director of Public Prosecutions wants the term alibi like Humpty Dumpty and Alice From Through The Looking Glass to mean something else. Alibi is defined in Black’s Law Dictionary 10th Edition as a defence based on the physical impossibility of accused person’s guilt by placing the accused person in a location other than the scene of the crime at the relevant time. From the testimony of the Appellant reproduced earlier in the judgment, it is curious that the Learned Director of Public prosecutions saw a resort to the defence of alibi by the Appellant. I have read the Appellant’s defence in Court over and over and I am unable to find such defence in the testimony of the Appellant in Court. From her testimony, it is not shown where the alleged offence took place and where the Appellant was different from the scene of the alleged crime. There was therefore no basis for the submission that the Appellant attempted to raise the defence of alibi for the first time in Court.
Learned Director of Public Prosecutions reproduced the testimony of the Appellant in her defence in Court in part and submitted that from the evidence of PW2 and the Appellant there is no doubt that the death of the Appellant’s mother did occur. I have stated earlier in the judgment that there is nothing from the evidence of PW2 to establish the death of the Appellant’s mother.
This is the testimony of the Appellant which learned Director of Public Prosecutions contended established death of the Appellant’s mother.
The police told me that I murdered someone, my mother. I told them that I did not kill my mother.
It is clear from the foregoing piece of evidence that it is hearsay evidence. It is trite law that such evidence has no evidential value. It was the police who told the Appellant that she killed the mother. It is curious to me that Learned Director of Public Prosecutions will peddle such evidence as proving the death of the Appellant’s mother. Since the Appellant did not know that her mother died, it is equally perplexing that she was expected to say how the mother died as contended by Learned Director of Public Prosecutions.
No offence is proved by the mere mention of the word.
In the instant case, the prosecution completely shirked its responsibility when it failed or refused to adduce evidence in proof of the offence alleged against the Appellant. No witness was called to prove that there was a person before the charge against the Appellant called Lydia Shide. That that person died. Nobody was called to say that he saw the dead body of the said Lydia Shide. No evidence was led to establish that the Appellant caused the death of the said Lydia Shide. As shown elsewhere in this judgment, the PW2 under cross examination said he did not go to the scene. No other police officer was called to show that the offence was investigated.
There is therefore no evidence that any dead body was found and how the Appellant was linked to the death of the person. There was no evidence to establish the cause of the death of the person.
It is clear from the foregoing that the only issue for determination should be resolved in favour of the Appellant and against the Respondent.
The issue is hereby resolved in favour of the Appellant and against the Respondent.
Consequently, the conviction and sentence to death of the Appellant by the Court below are hereby quashed.
The Appellant is discharged and acquitted.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment in this appeal just delivered by my learned Brother, James Shehu Abiriyi, J.C.A.
I agree with His Lordship’s line of reasoning and the conclusion reached, in the said leading judgment, that the appeal is meritorious. I equally allow the appeal, quash the conviction of and death sentence passed on the Appellant by the trial Court.
Consequently, I discharge and acquit the Appellant.
SAIDU TANKO HUSSAINI, J.C.A.: I agree.
Appearances:
Martin Milkman, Esq.For Appellant(s)
Hamidu Audu Esq. Director of Public Prosecution Taraba StateFor Respondent(s)
