HARUNA v. STATE (2022)

HARUNA v. STATE

(2022)LCN/16355(CA)

In The Supreme Court

On Friday, June 03, 2022

SC.859/2017

Before Our Lordships:

Chima Centus Nweze Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Between

RABI HARUNA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

POSITION OF LAW ON THE BURDEN OF PROOF OF CRIMINAL RESPONSIBILITY

The general principle of law, which is well enunciated is that, save for exceptional cases as may be stipulated by law, the burden of proof of criminal responsibility solely rests on the Prosecution, Alonge v I.G.P (1959) 5 SCNLR 516; Igabele v. State [2006] 6 NWLR (pt. 975) 100; Shuaib’u Abdu v The State [2017] 7 NWLR (pt. 1564) 171. CHIMA CENTUS NWEZE, J.S.C.

POSITION OF LAW ON THE STANDARD OF PROOF IN CRIMINAL CASES

However, the Prosecution is not expected to prove the guilt of the accused person beyond every shadow of doubt as such standard could not have been contemplated by our law which admits of the fact that absolute certainty is impossible in any human adventure, Black’s Law Dictionary, 6th Edition, pages 161 and 1265;Jua v. State [2010] 4 NWLR (pt. 1184) 217; Ani v. State [2009] 6 NWLR (pt 1168) 443, 458; Bakare v. State [1987] 1 NWLR (pt.52) 581. CHIMA CENTUS NWEZE, J.S.C.

POSITION OF LAW ON THE STANDARD OF PROOF IN CRIMINAL CASES

To be able to prove its case beyond reasonable doubt, the Prosecution must establish every ingredient which constitutes the totality of the offence, Alabi v. State [1993] 7 NWLR (pt.307) 511. CHIMA CENTUS NWEZE, J.S.C.

THE ESSENTIAL INGREDIENTS OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH

…..the three consecutive and essential ingredients of culpable homicide punishable with death which must be proved beyond reasonable doubt, have been generously set out, Tajudeen Iliyasu v. State [2015] LPELR-24403 (SC) 24-26, G-C. In that case, I held that, in order to secure a conviction, the Prosecution is obliged to show the following:
(a). that the deceased person died;
(b). that his/her death was caused by the accused person; and
(c). that he/she intended to either kill the victim or cause grievous bodily harm; Hassan v State [2017] 5 NWLR (pt 1557) 1, 33, G-H; Ogbu v. State [2007] 4 SCM 169; Durwode v. State [2000] 15 NWLR (pt. 691) 467; Akpan v. State [2000] 12 NWLR (pt. 682) 607. CHIMA CENTUS NWEZE, J.S.C.

POSITION OF LAW ON UNCHALLENGED EVIDENCE

The law is trite that where evidence was neither challenged nor debunked, it remains good and credible and should be relied on, Esene v. State [2017] LPELR- 41912 (SC); Osung v. State [2012] LPELR-9720 (SC). CHIMA CENTUS NWEZE, J.S.C.

POSITION OF LAW ON CONTRADICTION OF WITNESSES

For contradiction of witnesses to warrant a discountenance, such witnesses must have contradicted each other on material particulars affecting the substance of the case, Benson Esangbedo v. State [1989] 4 NWLR (pt. 113) 57; Ehot v. State [1993] 4 NWLR (pt. 290) 644; Ndike v. State [1994] 8 NWLR (pt 360) 33. CHIMA CENTUS NWEZE, J.S.C.

WHETHER A MEDICAL REPORT ON THE CAUSE OF DEATH IS DESIRABLE OR NECESSITY

Now the law is that a medical report on the cause of death is desirable but is not a necessity. The cause of death can be inferred by the trial Judge. See: Ogbera v. State [1985] 3 NWLR part 11 p.120 at p.124. CHIMA CENTUS NWEZE, J.S.C.

RESPONSIBILITY OF AN ACCUSED FOR MURDER

Indeed, in determining the responsibility of an accused for murder, the important consideration is whether the death was caused by injuries sustained through the act of the accused and not whether from the medical point of view death was caused by such injuries. See:Uyo v. AG Bendel State [1986] 1 NWLR part 17 p.48. CHIMA CENTUS NWEZE, J.S.C.

POSITION OF LAW ON THE PROVE OF GUILT OF AN ACCUSED PERSON

WHETHER THERE MUST BE AN EYE WITNESS BEFORE A MURDER CHARGE COULD BE PROVED BEYOND REASONABLE DOUBT

This Court held in Ndike v. State [1994] 9 SCNJ 46 at 54-56 that:
“… It is not a condition or legal imperative that there must be an eye witness before a murder charge could be proved beyond reasonable doubt. Proof of the commission of the offence may proceed on circumstantial evidence.” CHIMA CENTUS NWEZE, J.S.C.

WHERE AN ACCUSED PERSON IS THE LAST SEEN IN THE DECEASED’S COMPANY

Equally, in Emeka v. State [2001] 14 NWLR (pt. 734) 666, 683, this Court held as follows:

WHETHER THERE MUST BE AN EYE WITNESS BEFORE A MURDER CHARGE COULD BE PROVED BEYOND REASONABLE DOUBT

Thus, the Prosecution is not under a legal duty to call eyewitnesses in a case, when it can discharge its burden of proof by other means of either voluntary confession or circumstantial evidence that satisfies the requirement of the law, Lori v. State [1980] 8 -11 SC 81; Nwaeze v. State [1996] 2 NWLR (pt. 428) 1; Igabele v. State [2006] LPELR-1441 (SC); Madu v. State [2012] LPELR-7867 (SC). CHIMA CENTUS NWEZE, J.S.C.

POSITION OF LAW ON A CONFESSIONAL STATEMENT, WHICH WAS MADE VOLUNTARILY BUT LATER RETRACTED

It is well settled that a confessional statement, which is made voluntarily, even if later retracted, is sufficient to sustain a conviction – see Solola V. State (2005) 11 NWLR (Pt. 937) 460, Nwaeze V. State (1996) 2 NWLR (Pt. 428) 1. AMINA ADAMU AUGIE, J.S.C.

FUNDAMENTAL PRINCIPLE OF A CRIME CONSISTING OF BOTH MENTAL AND PHYSICAL ELEMENT

It is a fundamental principle that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness that his or her conduct is criminal, is the mental element, and actus reus, the act itself, is the physical element. The concept of mens rea, which is Latin for “guilty mind’, developed in England around 1600, when Judges began to hold that an act alone could not create criminal liability unless it is accompanied by a guilty state of mind.
Thus, mens rea is a criminal intention or knowledge that an act is wrong. The appellant was charged with the offence of culpable homicide punishable with death, therefore, the Prosecution had to prove beyond reasonable doubt that the alleged act of hitting the deceased with a pestle while he was asleep, was done by her with the clear intention of causing the death of the deceased. AMINA ADAMU AUGIE, J.S.C.

POSITION OF LAW MEDICAL EVIDENCE IN ESTABLISHING THE CAUSE OF DEATH IN A CASE

CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The appellant herein was arraigned before the High Court of Kaduna State on a one-count charge of culpable homicide punishable with death contrary to Section 221 of the Penal Code Law of Kaduna State, 1991. It was alleged that on or about August 13th, 2013, the appellant had attacked one Musa Bello (the deceased) by hitting a pestle, twice on his head while he was asleep in his room, as a result of which he sustained injuries and subsequently died. The appellant pleaded not guilty to the charge.

At the trial, the Prosecution/respondent called four witnesses to prove its case, and tendered four exhibits in the course of trial. The appellant did not call any witness, but rested her case on that of the Prosecution/respondent.

The trial Court, by its judgment delivered on July 28th, 2016, found the appellant not guilty of the charge, and consequently discharged and acquitted the appellant.

Dissatisfied with that judgment, the respondent lodged an appeal via a Notice of Appeal filed on October 11th, 2016, at the Court of Appeal, Kaduna Division, (hereinafter, simply, referred to as “the lower Court),” The lower Court found merit in the appeal, Accordingly, it reversed the judgment of the trial Court, It sentenced the appellant to death.

Aggrieved by the said judgment the appellant now appealed to this Court. By a Brief of Argument, filed on February 22nd, 2021, the appellant distilled a sole issue for determination, to wit:
Whether the lower Court was right when it upturned the judgment of the trial Court on the basis that all the ingredients of the offence of culpable homicide punishable with death had been proved beyond reasonable doubt against the appellant herein?

APPELLANT’S SUBMISSIONS
Learned counsel for the appellant submitted that the respondent failed at the trial Court to discharge the burden of proving beyond reasonable doubt, the ingredients of the offence of culpable homicide punishable with death, with which the appellant was charged. Cited in support were the following cases: Dau v. State [2016) 7 NWLR (pt.1510) 83 at 107; Shande v. State [2004] FWLR (pt.223) 1955 at 1968; Abidoye v. F.R.N [2014] All FWLR (pt.722) 1624, 1641, para F-G.

He further pointed out that appellant denied making exhibits A, A1 and B before they were admitted in evidence. Thus, in his submission, any reliance on them would amount to picking the contents of the said exhibits over the inconsistent evidence adduced by PW1-PW4, which cannot successfully corroborate the contents of the said exhibits.

He contended that there was absence of medical evidence to prove the death of the deceased person. He made heavy weather on the importance of a medical report to have been adduced in this case, as there might have been another or a different fact from the attack, that resulted in the death of the deceased person or likelihood of more than one cause of death, Ebong v. State [2012] All FWLR (pt.633) 1945-1968-1969, H-A.

The alleged lethal weapon, in the nature of a pestle, used in killing the deceased, he pointed out, was neither found nor produced in evidence, citing The Queen v. Chukwudi-Obiasa [1962-1966] WNLR 354, 357.

Relying on the cases of Lawrence Asuquo Thomas v. State [1994] LPELR- 3239 (SC) and Festus Amayo v. State [2001] LPELR-459 (SC), learned counsel further contended that the intent to kill is also lacking as the respondent, throughout the gamut of trial, failed to adduce evidence to prove that the appellant herein intended to kill Musa Bello by merely hitting him with a wooden pestle. He urged this Court to allow the appeal and set aside the judgment of the lower Court.

RESPONDENT’S SUBMISSIONS
On his part, learned counsel for the respondent, adopting the Brief of Argument filed on March 4th, 2019, insisted that the respondent proved its case beyond reasonable doubt.

He pointed out that the appellant, in her confessional statement, tendered as exhibits A, A1 and B, admitted to hitting the deceased person with a pestle twice on his head while he was asleep.

He further contended that the testimonies of PW1, PW3 and PW4, clearly, show that it was the injury, which the appellant inflicted on the deceased person, that subsequently led to his death. In his submission, this amounted to a corroboration of the confessional statement made by the appellant. There was neither any challenge nor contradiction to these testimonies, State v, Haruna (2017) LPELR-43351 (CA) and Ubani and Ors v. The state [2003]12 SCNJ 111.

He maintained that, contrary to the appellant’s argument, the appellant did not at any time during the trial of this suit, deny making a confessional statement nor deny the voluntariness of the said statement. He pointed out that the only objection raised by the appellant as regards the confessional statement was that the thumbprint on the statement was not hers and she was promptly overruled by the trial Court.

The fact that the Prosecution failed to produce any medical evidence establishing the death of the deceased, he observed, does not negate the fact that the deceased person’s death was caused by the appellant. There were sufficient facts to prove same. Learned counsel called in aid the following cases: Ogbu v. State [2007] All FWLR (pt.361) 1651, 1674, paras B-E (SC); Liman v. State [1976] 6 UILR (pt. 11) 248; Ben v. State [2006] 16 NWLR (pt.1006) 582; Jeremiah v. State (2012) 14 NWLR (pt.1320) 248.

In his submission, an object of the weight of a pestle could not have been used to hit someone on the head while asleep, without the intention to kill or cause serious bodily harm. Reference was made to the following cases Iden v. State [1994] 8 NWLR (pt. 365) 719; Chukwunyere v. State [2017] LPELR- 43725 (SC). He urged the Court to uphold the decision of the lower Court and dismiss this appeal.

APPELLANT’S REPLY-BRIEF
In the appellant’s Reply Brief filed on February 22nd, 2021, learned counsel for the appellant insisted that the Prosecution failed to prove its case beyond reasonable doubt.

He maintained that the respondent, at the trial Court, did not call any credible witness to establish that the accused person, indeed, caused the death of the deceased person, State v. Danjummai [1996] 8 NWLR (pt.469) 668. He urged this Court to discountenance the case of State v Haruna (supra) relied on by the respondent as this Court is not bound by a Court of Appeal decision, as same is merely persuasive.

He further contended that the case of Ubani and Ors v. State (supra) relied on by the respondent is not on all fours with this case to the extent that the major contention in Ubani’s case was whether the charge of murder was proved by direct or circumstantial evidence.

He further argued that the authority of Ben v. State (supra) relied on by the respondent ought to be discountenanced because the evidence required to prove cause of death was not adduced in the instant case unlike in Ben’s case where a post-mortem examination of the deceased was carried out, the lethal weapon used was tendered, and an eye witness who witnessed the act of hitting was called as a witness.

It is the totality of learned counsel’s submission that this Court should discountenance all the authorities relied on by the respondent and arguments in support thereof.

RESOLUTION OF THE SOLE ISSUE
The general principle of law, which is well enunciated is that, save for exceptional cases as may be stipulated by law, the burden of proof of criminal responsibility solely rests on the Prosecution, Alonge v I.G.P (1959) 5 SCNLR 516; Igabele v. State [2006] 6 NWLR (pt. 975) 100; Shuaib’u Abdu v The State [2017] 7 NWLR (pt. 1564) 171.

The ironclad standard of proof in criminal cases still remains proof beyond reasonable doubt, Esangbedo v. State [1989] 4 NWLR (pt. 113) 57; Udo v. State [2006] 15 NWLR (pt. 1001) 179; Madu v. State [2012] LPELR-7867 (SC); Adekoya v. State [2012] LPELR-7815 (SC); Iliyasu v. State [2015] LPELR-24403 (SC) 24-26; Ali v. State [2015] LPELR-24711 (SC); Agu v. State [2017] LPELR-41664 (SC); Muhammad v. State [2017] LPELR-42098 (SC).
However, the Prosecution is not expected to prove the guilt of the accused person beyond every shadow of doubt as such standard could not have been contemplated by our law which admits of the fact that absolute certainty is impossible in any human adventure, Black’s Law Dictionary, 6th Edition, pages 161 and 1265;Jua v. State [2010] 4 NWLR (pt. 1184) 217; Ani v. State [2009] 6 NWLR (pt 1168) 443, 458; Bakare v. State [1987] 1 NWLR (pt.52) 581. To be able to prove its case beyond reasonable doubt, the Prosecution must establish every ingredient which constitutes the totality of the offence, Alabi v. State [1993] 7 NWLR (pt.307) 511.

Now, by virtue of Section 221 of the Penal Code of Kaduna State, applicable to Kaduna State, which has been interpreted by judicial authorities as well as legal pundits and authors, too numerous to mention here, the three consecutive and essential ingredients of culpable homicide punishable with death which must be proved beyond reasonable doubt, have been generously set out, Tajudeen Iliyasu v. State [2015] LPELR-24403 (SC) 24-26, G-C. In that case, I held that, in order to secure a conviction, the Prosecution is obliged to show the following:
(a). that the deceased person died;
(b). that his/her death was caused by the accused person; and
(c). that he/she intended to either kill the victim or cause grievous bodily harm; Hassan v State [2017] 5 NWLR (pt 1557) 1, 33, G-H; Ogbu v. State [2007] 4 SCM 169; Durwode v. State [2000] 15 NWLR (pt. 691) 467; Akpan v. State [2000] 12 NWLR (pt. 682) 607.
The Courts have taken the view that the above ingredients must be co-existent or co-eval; that is, they must be co-incident in the sense that the three ingredients must co-exist. The effect is that, where one of these ingredients is absent, the Prosecution would not have discharged its duty, Igabele v. State [2006] LPELR-1441 (SC).

It is these requirements, the current position of the law, that set the pace for our consideration of the submissions of counsel of the parties.

Ingredient 1: That the deceased died
On this ingredient, appellant contended that the evidence of PW1, PW3 and PW4, respectively, were contradictory and thus should not have been relied on by the lower Court. Learned counsel also submitted that PW3 and PW4 gave inconsistent accounts of how the deceased person, (Musa Bello) died, stating that from the evidence of PW3 and PW4 it would appear that two different persons died and not one. He further pointed out that PW1 and PW3 are investigating police officers and not relatives of Musa Bello, the deceased person, and are not proper persons to identify the deceased’s dead body and cannot be taken as conclusive proof of the death of the deceased. The case of Njoku v. State (1992) LPELR-14990 (CA) was cited in support.

Regarding proof of death of a human being, the fact of death may be proved by production of a post-mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body. However, it is now well settled that a conviction for culpable homicide punishable with death or murder can be made without the recovery of the dead body if there is positive evidence that the deceased has been killed.
In effect, the need to carry out a post-mortem examination or for anyone to identify the body of the deceased to a doctor is not a sine qua non in all murder cases, Edim v. State [1972] 4 SC 160, Enewoh v. State [1990] 4 NWLR (pt. 145) 469; Idemudia v. State [1999] 7 NWLR (pt. 610) 202; Zubairu v. State [2015] 16 NWLR (pt. 1486) 504; Sale v. State [2020] 1 NWLR (pt. 1705) 205.
Thus, the identification of a deceased person’s corpse could be by circumstantial evidence but such evidence must be cogent, direct and unequivocal In effect, the position of learned counsel, though good law, is narrow in its application. It is restricted to situations where the identity of the body meant to be examined by the doctor is shredded in doubt and there is no other evidence to clear the doubt.

Now, it is necessary to turn to the testimonies of PW1, PW3 and PW4 for a brief observation.
PW1 under cross-examination testified thus:
“…I visited the scene of the crime. At the scene, we tried to recover the pestle she used but could not get it. I saw the deceased person. I did not order for autopsy of the deceased”

PW3 during his examination-in-chief, testified thus:
“…As I came out the wife of the deceased said the accused had killed my elder brother. I rushed into the room and discovered and saw him lying in a pool of blood.” PW4 during his examination-in-chief testified thus:
“…Later, the same date, the victim died and was confirmed dead by the Doctor on duty, I ordered for post-mortem examination but the relatives of the deceased said they do not want the examination. Upon application for waiver of post-mortem, photograph of the deceased was taken and the body released to the relatives for burial according to Islamic rites. Scene of the crime was visited along with the suspect to recover the exhibit (pestle) but it was not recovered… I took photographs of the deceased in the Hospital…”

During cross-examination, PW4 further testified thus “I visited the scene of the crime before the death of the deceased person…”

From the foregoing, I find that, as regards this ingredient, there was sufficient evidence at this stage to support the finding that Musa Bello, was indeed the person that died. In its defence, the appellant chose to rest her case on that of the Prosecution at the trial Court. The law is trite that where evidence was neither challenged nor debunked, it remains good and credible and should be relied on, Esene v. State [2017] LPELR- 41912 (SC); Osung v. State [2012] LPELR-9720 (SC).

What is more, witnesses to the same incident are not expected to give a uniform account. Minor variations in their accounts are expected. It is out of touch with reality to expect one hundred percent of accuracy in the recollection of two people who observed the same incident, simultaneously, even if for a few minutes after one another. The danger even in uniform evidence is the presumption that their evidence has been tailored, tutored or doctored.
For contradiction of witnesses to warrant a discountenance, such witnesses must have contradicted each other on material particulars affecting the substance of the case, Benson Esangbedo v. State [1989] 4 NWLR (pt. 113) 57; Ehot v. State [1993] 4 NWLR (pt. 290) 644; Ndike v. State [1994] 8 NWLR (pt 360) 33. In the instant case, I do not find any material contradictions in the testimonies of the Prosecution’s witnesses to warrant the setting aside of the judgment of the lower Court.

Ingredient 2: That his/her death was caused by the accused person.
The lower Court expended considerable energy in the determination of the question of whether the Prosecution proved the second ingredient of the offence of culpable homicide punishable with death.

Commenting on the findings of the learned trial Judge, the lower Court held inter alia:
“On the second ingredient to be proved beyond reasonable doubt which is that the death was caused by the accused (the respondent in this appeal), the learned trial Judge reasoned and came to the following finding:
“In murder cases, medical evidence is required to establish the cause of death and the manner of death. The cause of death is a medical question while the manner of death determines whether or not the injury which is the cause of death was or could have been self-inflicted in the present case, the prosecution failed to produce any expert medical evidence either viva voce or documentary or to establish death or cause of death. The lack of same has created doubt in the mind of this Court.”
Clearly from the above, the learned trial Judge came to the conclusion that doubt had been created as to whether it was actually the respondent that caused the death of the deceased because there was no evidence of a medical doctor whether oral or documentary on the cause of death.
Now the law is that a medical report on the cause of death is desirable but is not a necessity. The cause of death can be inferred by the trial Judge. See: Ogbera v. State [1985] 3 NWLR part 11 p.120 at p.124. Indeed, in determining the responsibility of an accused for murder, the important consideration is whether the death was caused by injuries sustained through the act of the accused and not whether from the medical point of view death was caused by such injuries. See: Uyo v. AG Bendel State [1986] 1 NWLR part 17 p.48. medical evidence is at best strong opinion. Therefore, where a lethal weapon is used to inflict injury which results in the death as in this case where a pestle was used to hit the deceased on the head while in his room fast asleep, no medical evidence as to the cause of death will be necessary…”
I am emboldened in my view that the lower Court’s approach is irreproachable from the position of binding authorities. Only but a few will be referred to here.
In Garba and Ors v. State [2000] 6 NWLR (pt. 661) 378, 388, paras D-E, this Court held thus:
“The failure to produce the murder weapon during the trial, is in my view, inconsequential. It is the intentional murderous assault on a vital part of the body which leads to conviction for culpable homicide punishable with death. There can be no doubt that a person delivering a violent blow with a stick or a club in a vulnerable part of the body such as the head must be deemed to have intended to cause such bodily injury as he knew that death would be the consequence of his act.”
In Ben v. State [2006] 16 NWLR (pt. 1006) 582, 594, paras C-D, this Court held that:
“Where a man is attacked with lethal weapon and died on the spot, the cause of death can properly be inferred that the wound inflicted caused the death. In other words, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity, where death is instantaneous or nearly so.”
This Court had, earlier, in Bwashi v. State [1972] 6 SC 93, held that where the cause of death was obvious, medical evidence ceased to be of any practical or legal necessity in murder cases. Such situations arise when death was instantaneous or nearly so.
In Bakuri v. State [1965] NMLR 163, the deceased person was stabbed in the stomach with a knife. He died on the spot. This Court held that:
“In cases of this nature, where a man was attacked with a lethal weapon and died on the spot, it is hardly necessary to prove the cause of death; it can properly be inferred that the wound inflicted, caused the death.”
Ubani and Ors v. State (supra) is also good authority for the principle of law that, medical evidence is not a sine qua non to prove cause of death where it appears likely from circumstantial evidence that the deceased person died soon after the infliction of the injuries on him, as a result of the attack.
There can be no diversity of opinion on this point, which is thoroughly well settled, Onwumere v. State [1991] 4 NWLR (pt. 188) 428; Ogbu v. State [1992] LPELR-2292 (SC); Oforlete v. State [2000] LPELR-2270 (SC); Nwachukwu v. State [2002] 12 NWLR (pt. 782) 543; Aiguoreghian v. State [2004] 1 SC (pt. 1) 65; Bassey Ukpong v. State [2019] LPELR-46427 (SC).
It is sufficient if there is compelling evidence of the murder weapon used which is consistent with the injury found on the deceased. In the instant case, the deceased person was found injured on the head and in a pool of blood. Certainly, such injury could not have resulted without a lethal weapon in play. This weapon was also applied very forcefully, albeit, twice on the head of the deceased, which caused a rupture on his head and his eventual death.
From the testimonies of the Prosecution’s witnesses, the cause of death is obvious. Quite apart from the testimonies, the appellant made a clean breast of her involvement in the crime. From the confessional statements, credited to the appellant and admitted as exhibits A, A1 and B, the appellant, actually, admitted to hitting the deceased person with a pestle, twice, on the head. She, also, confirmed that the deceased person later died in the hospital, This is sufficient evidence to infer the cause of death to be as a result of the appellant’s act.

Learned counsel for the appellant sought to make the identity of the deceased person an issue in this appeal. He contended that there were substantial material contradictions in the evidence of PW3 and PW4. He posited that from their respective evidence, it would appear that two different persons, and not one, had died. He further submitted that while PW3 testified that the deceased died in the morning of August 22nd, 2013, even before he woke up, PW4 maintained that the deceased was brought to him on the same August 22nd, 2013 at about 8.00 hrs and he took him (the deceased) to the hospital.

He further pointed out that PW4 gave evidence to show that a Doctor’s report was given to the Police and that the Police in turn annexed it to the case diary. However, this medical report was not tendered though available. This, learned counsel submitted, amounts to withholding of evidence which will allow for invocation of Section 167 (d) of the Evidence Act, 2011. He urged this Court to invoke the provision against the respondent for failing to tender the said medical report.
In my view, there is no merit in this argument. The above complaint was not raised at the trial Court by learned counsel for the appellant. At the trial Court, the defence is entitled to demand for documents it considers relevant for its defence and this is done by serving a subpoena/Notice to produce on the Prosecution, Aremu v. State [1991] 7 NWLR (pt. 201) 1; Ewugba v. State [2017] LPELR-43833 (SC).
Having gleaned through the record of appeal before this Court, I find that no demand for the document was made either orally or in writing by the appellant, and no process was served on the respondent to produce the document. In the absence of same, Section 167 (d) of the Evidence Act, cannot apply.
As I have earlier held, the absence of a medical report, to link the cause of death with the act of the accused person, does not seal up the case of the Prosecution. Even where there is existence of a medical report, its mandatoriness would depend on the peculiar facts and circumstances of the case. This, in my view, does not amount to withholding of evidence for the Prosecution to be caught by the provision of Section 167 (d) of the Evidence Act, Olabode v. State [2009] 5-6 SC (pt. II) 1.

There was, also, a weak-kneed attempt by learned counsel to pour strictures on the judgment of the lower Court on the ground that the evidence of two Prosecution’s witnesses, PW3 and PW4, were fraught with substantial contradictions. Having carefully perused the testimonies of both witnesses, I am not persuaded that there are any material contradictions. If any authority is required in vindication of my conclusion. I refer to Theophilus v. State [1996] 1 NWLR (pt. 423) 139, in addition to the authorities I have referred to earlier in this judgment.

Ingredient 3: That he/she intended to either kill the victim or cause grievous bodily harm.
Arising from the evidence placed before the Court by the Prosecution, I have no hesitation in concluding that the act of the accused person, in hitting the deceased person with a pestle was intentional and with the knowledge that death was the probable consequence of her act. The fact that the appellant crept in at night while the deceased person was fast asleep showed evidence of premeditated wickedness and that the appellant intended that death would be the natural consequence of her act.

In the circumstance, this Court holds that the Prosecution had succeeded in proving the third ingredient of the offence of culpable homicide punishable with death. Thus, at the close of the case for the Prosecution, the Prosecution had discharged the burden that the deceased person had died from the intentional or less than reckless act of the appellant.

It is my humble view that the trial Court failed to appreciate, appraise and properly evaluate the evidence before it and as a result, arrived at a wrong decision, that prompted the lower Court to intervene, Woluchem v. Gudi [1981] 5 SC 291. Whatever sympathy one entertains for the appellant, one fact still remains. That is, that the appellant had committed a grave crime and must take responsibility.

Learned counsel for the appellant appeared to fault the Prosecution for refusing, neglecting or failing to call the wife of the deceased person as a witness at trial.

The law is trite that guilt of an accused person can be proved in three ways:
(a). By the confessional statement of the accused person; or
(b). By evidence of eye-witnesses to the crime; or
(c). By circumstantial evidence,
This Court held in Ndike v. State [1994] 9 SCNJ 46 at 54-56 that:
“… It is not a condition or legal imperative that there must be an eye witness before a murder charge could be proved beyond reasonable doubt. Proof of the commission of the offence may proceed on circumstantial evidence.”
Equally, in Emeka v. State [2001] 14 NWLR (pt. 734) 666, 683, this Court held as follows:

“Where the accused person was the last person to be seen in the deceased’s company and circumstantial evidence is not only overwhelming, but leads to no other conclusion, it leaves no room for acquittal.”
Thus, the Prosecution is not under a legal duty to call eyewitnesses in a case, when it can discharge its burden of proof by other means of either voluntary confession or circumstantial evidence that satisfies the requirement of the law, Lori v. State [1980] 8 -11 SC 81; Nwaeze v. State [1996] 2 NWLR (pt. 428) 1; Igabele v. State [2006] LPELR-1441 (SC); Madu v. State [2012] LPELR-7867 (SC).

In the instant case, I find that the Prosecution, by the totality of all other forms of evidence presented before the lower Court, discharged its burden of proof beyond reasonable doubt. In all, for the reasons adduced above, I take the humble view that the lower Court, on the evidence before it, rightly convicted the appellant. I find no justification for disturbing its findings. In consequence, I hold that this appeal is bound to fail. I hereby affirm the judgment of the lower Court.
Appeal dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had read before now, the lead judgment just delivered by my learned brother – Nweze, JSC, and I agree with his reasoning and conclusion, which I adopt.

The appellant confessed that she hit the deceased, who was fast asleep, with a pestle, not once but twice on the head, and it is clear from the evidence led by the Prosecution that it was the injury on the head that caused his death.

In the circumstances, there is no question whatsoever that the appellant intended to cause the death of the deceased, and the Court of Appeal is right to set aside the decision of the trial Court and convict the appellant as charged.

It is for this and the other well-marshaled reasons in the lead judgment that I also dismiss this appeal and affirm the decision of the Court of Appeal.
Appeal dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the judgment just delivered by my learned brother CHIMA CENTUS NWEZE, JSC. I completely agree with the reasoning and conclusion that this appeal is devoid of merit and should be dismissed.

The appellant had hit the deceased on the head with a pestle while the latter was asleep. There is no doubt that the appellant intended the natural consequences of her action which was the death of the deceased. The direct evidence of the eyewitness, the wife of the deceased, the confessional statement of the appellant and the circumstantial evidence of the fact that even if the deceased did not die immediately after he was struck by the appellant, but died so soon thereafter are sufficient to ground the appellant’s conviction for murder as rightly found by the lower Court.

I agree with the reasoning of the Court below that the prosecution proved the guilt of the appellant beyond reasonable doubt. I affirm the conviction and sentence of death imposed on the appellant for the offence of culpable homicide punishable with death. Appeal dismissed.

ABDU ABOKI, J.S.C.: I had the benefit of reading before now, a draft of the lead judgment prepared by my learned brother, CHIMA CENTUS NWEZE, JSC, just delivered. I agree with His Lordship’s reasons and the conclusion arrived thereat, that this appeal is unmeritorious and ought to be dismissed. In support thereof, I wish to advance a few words.

The appeal is against the judgment of the Court of Appeal, holden at its Kaduna Division, delivered on the 16th of June, 2017.

The facts of the case are that one Musa Bello was allegedly attacked by the appellant, Rabi Haruna, while he was asleep in his room. He was struck on the head twice, with a pestle. Musa Bello was rushed to the hospital. He subsequently died. No autopsy was carried out because his family did not want one and desired to bury him immediately according to Islamic rites. As a result of the incident, a one count charge was filed against the appellant. It reads:-
“That you Rabi Haruna on or about the 22/8/13 attacked one Musa Bello with a pestle on his head while asleep in his room as a result of which he sustained injury and died, thereby committed the offence of culpable homicide punishable with death as provided by Section 221 of the Penal Code, Laws of Kaduna State of Nigeria, 1991.”

At the trial, the Prosecution called four witnesses. The appellant however decided to rest her case on the Prosecution’s case. At the end of the trial, the learned trial Judge found the appellant not guilty and therefore discharged and acquitted her.

Not satisfied with the judgment, the Respondent appealed to the Court below, and questioned whether upon a proper and adequate evaluation of the evidence adduced in this case, the learned trial Judge was right when he held that the Prosecution had failed to prove its case against the appellant, which led to her discharge and acquittal.

The Court below, in a considered judgment, allowed the appeal and set aside the judgment of the trial Court. The Court below held inter alia:
“I find that the appeal has merit. It is accordingly allowed. The decision of the lower Court which discharged and acquitted the Respondent is set aside. Instead, I find the Respondent guilty of the offence of culpable homicide punishable with death. The Respondent is accordingly sentenced to death.”

The Appellant is peeved by this decision and appealed to this Court. A solitary issue was raised by the appellant, which was adopted by the respondent. The Issue reads:
“Whether the lower Court was right when it upturned the judgment of the trial Court on the basis that all the ingredients of the offence of culpable homicide punishable with death had been proved beyond reasonable doubt against the Appellant herein?”

My support of the lead judgment is in respect of whether or not medical evidence could be dispensed with, as to the cause of death, as held by the Court below.

It is trite law that medical evidence, though desirable in establishing the cause of death in a case of murder, is however not essential or a pre-requisite in a situation where there are facts sufficient to show the cause of death to the satisfaction of the Court. See:
Uwaegbe Enewoh v The State (1990) LPELR-1141 (SC).
Medical evidence can in fact be dispensed with where evidence shows that the victim died in circumstances which leave no doubt as to the manner or as to the cause of the death of the deceased victim. See:
Ukpong v. The State (2019) LPELR 46427 SC.
In this instant case, the appellant hit the deceased with a pestle while he slept and he died shortly after. There was no evidence of any intervening factor that could have caused or aggravated his death. The death of the deceased could therefore be regarded as instantaneous since there has not been any break in the chain of causation that could be attributed to the death of the deceased besides the injuries inflicted on him by the appellant. In that circumstance, the non-tendering of a medical report by the Prosecution cannot be regarded as fatal to its case at the trial Court. The law is trite that where the death is instantaneous or almost so, then medical evidence ceases to be of any practical or legal requirement or necessity.
Commenting on this issue, the Court below held as follows:
“Now the law is that a medical report on the cause of death is desirable but is not a necessity. The cause of death can be inferred by the trial Judge. See OGBERA V. STATE (1985) 3 NWLR PART 11 p. 120 at p. 124. Indeed, in determining the responsibility of an accused for murder, the important consideration is whether the death was caused by injuries sustained through the act of the accused and not whether from the medical point of view death was caused by such injuries. See UYO V. A.G. BENDEL STATE (1986) 1 NWLR PART 17 p. 48. Medical evidence is at best strong opinion. Therefore where a lethal weapon is used to inflict injury which results in death as in this case where a pestle was used to hit the deceased on the head while in his room fast asleep, no medical evidence as to the cause of death will be necessary. In the case of EMWENYA V. AG. BENDEL STATE (1993) NWLR PART 297 p. 29; (1993) 6 SCNJ 166 where a sympathetic passerby was attacked by the Appellant whose daughter was hit by a vehicle with a hammer with sharp edges on the chest and the passer-by subsequently died on the way to the hospital, the Supreme Court held that medical evidence was not necessary and the cause of death could be inferred considering the lethal nature of the weapon used by the Appellant. The Supreme Court also held in that case that a hammer is a lethal weapon, whatever the size. The same inference ought to have been made by the learned trial Judge instead of finding that the absence of medical evidence created a doubt. That the deceased was hit by a pestle, on the head, (a lethal weapon whatever the size) by the Respondent as admitted by the Respondent in her confessional statements and that the deceased later died in hospital, is sufficient evidence to infer the cause of death to be the injury caused to deceased by the Respondent by the infliction of blows to his head using the pestle as weapon.”
I find the views expressed by the Court below to be unassailable, and in line with established principles of law. I hold that medical evidence could be dispensed with as to the cause of death in the instant appeal.

In the light of the aforesaid, I am also convinced that the death of the deceased had been proved by the evidence adduced at the trial and in view of the circumstances of the case, notwithstanding that no medical evidence was led by the Prosecution/Respondent which as I said earlier, was of no necessity in the circumstances of this case.

It is for the foregoing reason, and the more detailed reasons in the lead judgment written by my learned brother, CHIMA CENTUS NWEZE, JSC, that I also adjudge this appeal to be unmeritorious, and it is accordingly dismissed.
Appeal dismissed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, Chima Centus Nweze, JSC. I completely agree with the reasoning, conclusions, decisions therein.

Appearances:

Olaoluwa Lanre, Esq., with him, Bayo Adetomiwa, Esq. For Appellant(s)

Teslim Adewuyi, Esq. For Respondent(s)