HARUNA v. STATE (2022)

HARUNA v. STATE

(2022)LCN/16782(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Friday, February 04, 2022

CA/EK/112C/2020

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

MOHAMODU HARUNA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE ELEMENTS OF THE OFFENCE OF MURDER

Both counsel have also correctly stated the three essential elements of the offence of murder, which the prosecution is required to prove beyound reasonable doubt to secure conviction. These are that there was a killing of a human being which was unlawful and the killing was caused by the intentional act or omission of the accused, which act or omission he did with the knowledge that death or grievous bodily harm was likely to be caused by his act or omission. See IDIOK VS. STATE (supra) referred to by the Appellant. PER ALIYU, J.C.A.

WHETHER OR NOT A CONVICTION OF MURDER CAN BE MADE WITHOUT RECOVERY OF THE DEAD BODY

I have read those cases and I found that the judicial consensus reached on all of them is that the prosecution must establish the death of deceased, whom the Appellant is accused of killing. That medical evidence is not a sine quo non in all charges of murder where the facts proved are conclusive to the cause of death of the deceased. On the identity of the deceased, an accused can be convicted of murder even where the body of the deceased was never recovered or seen, if death is proved by circumstantial evidence. Finally, the Apex Court in the case ENEWOH VS. STATE (supra), per AKPATA, JSC held that:
“The position however is that if there are facts from which it can be inferred that the corpse examined by the doctor was that of the deceased, the evidence of the person dead or alive, said to have identified the corpse is not indispensible. Indeed, a conviction for 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 for anyone to identify a body of a deceased to a doctor is not a sine quo non in all murder cases…. (Underlining provided for emphasis). PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ekiti State holden at Ado Ekiti (trial Court), delivered on the 6th August, 2020 in respect of criminal Charge NO: HAD/46C/2018, by which the Appellant was arraigned for the offence of murder contrary to Section 316 of the Criminal Code Law, Cap. C16 Laws of Ekiti State, 2012. The Appellant was charged with the murder of one Mohamodu Usman on the 12th of February, 2018 at Odo-Oro Iyin of Ekiti State. He pleaded not guilty to the charge.

The background facts are that on the 12th February, 2018, the Appellant and the deceased had a fight at Atikankan area of Ado Ekiti, but they were separated. Thereafter the Appellant and the deceased who were both Fulani herders met at Odo Oro, a village near Iyin Ekiti where they continued their fight. The Appellant used a cutlass to behead the deceased resulting in his death.

The Respondent called four witnesses in attempt to prove the offence against the Appellant. He also testified in his defence as DW1, and denied even knowing the deceased. But he did not call any witness.

At the conclusion of the trial, the learned trial Court found and held that the prosecution has proved the offence of murder against the Appellant; convicted him of the offence and sentenced him to death.

He felt aggrieved with his conviction and he filed notice of appeal against the judgment which was amended twice. The extant notice of this appeal is his 2nd amended notice of appeal filed on the 2nd August 2021 deemed properly filed and served by the order of this Court made on the 23rd November 2021. He relied on two grounds of appeal reproduced below without their particulars:
GROUND ONE
The learned trial Judge erred in law when he convicted the Appellant based on the circumstantial evidence which did not point positively, conclusively and irresistibly to the fact that the deceased (if any) died as a result of the act of the act of the Appellant.
GROUND TWO
The verdict or findings of the lower Court is unreasonable and unwarranted and cannot be supported having regards to the evidence adduced.

Upon the above two grounds, the Appellant prayed this Court for; (i) an order quashing his conviction for the offence of murder and (ii) an order discharging and acquitting of the offence of murder.

The appeal having been entered on the 7th July, 2021, the Appellant filed his brief of argument settled by AFAMEFUNA OKEKE ESQ. on the 2nd August, 2021 and he raised therein two issues for the determination of the appeal thus:
1. Whether the lower Court was right in convicting the Appellant for the murder of Mohamodu Usman when the identity of the deceased was not proved and established even as it was not proven that the said Mohamodu Usman which the Appellant was charged of killing, was indeed dead and that it was the Appellant that caused his death. (Distilled from ground 1)
2. Whether the lower Court was right in convicting and sentencing the Appellant for the offence of murder despite the fact that there was no compelling and irresistible evidence whether direct or circumstantial to ground the conviction. (Distilled from ground 2).

The Respondent opposed the appeal vide the Respondent’s brief settled by her Attorney General Olawale Fapounda Esq., and filed on the 13th September, 2021. He raised a sole issue for the determination of this appeal as: Whether or not the learned trial Judge was right in holding that the prosecution established by evidence a case of murder beyond reasonable doubt against the Appellant.

The appeal was called for hearing on the 23rd November, 2021 and counsel on both sides adopted their respective briefs. The submissions of the parties in their briefs are considered below.

APPELLANT’S SUBMISSIONS
On issue one, the learned counsel for the Appellant submitted that there was no credible and reliable evidence on the record that established the death of any known victim because the identity of the deceased whom the Appellant was accused to have murdered was not proved by the Respondent. He referred to the charge in which it was stated the person whose death the Appellant caused was one Mohamodu Usman as stated in the charge. But the evidence on record showed that the name of the person with whom the Appellant had a fight was one Umaru Mohammed. He relied on the cases of IDIOK VS. STATE (2008) LPELR-1423 (SC) and OZOEMENA VS. STATE (1998) 10 NWLR (PT. 571) 632 to submit that it is fundamental to identify the deceased so as not to convict an accused for the murder of someone whom may still be alive. It was submitted that there was no named relative or someone who knew the deceased identified him and no evidence was shown that identified the deceased. Again, since there was no autopsy report on the deceased, it becomes fundamental for the prosecution to prove the identity of the deceased. He placed further reliance on Section 143(1) and (3) of the Administration of Criminal Justice Law of Ekiti State and the cases of PRINCEWILL VS. STATE (1994) LPELR-2926 (SC) and KADA VS. STATE (1999) LPELR-1641 (SC) and a host of other cases for support. He urged the Court to hold that the prosecution failed to prove the identity of the deceased and to resolve this issue in his favour.

On the Appellant’s issue two, learned counsel submitted that the reasoning of the trial Court in convicting the Appellant is not sound in law because it failed to take into consideration the contradiction and inconsistencies in the evidence led by the prosecution. That the evidence did not prove positively and cogently that the deceased named in the charge sheet as Mohamodu Usman was indeed dead and that the Appellant caused his death. He further argued that the circumstantial evidence led by the prosecution did not prove the elements of the offence of murder. In particular, the learned counsel urged us to scrutinize the evidence of PW2 whose evidence the learned trial Court accepted. He pointed out the evidence of PW2 was inconsistent and contradictory and ought not to be believed by the trial Court.

He further submitted that while the trial Court could draw inferences upon the facts proved before it, such inferences must not be based on supposition or speculations as was held in the case of RAJI VS. STATE (2014) LPELR-24254 (CA). He urged the Court to resolve this issue in favour of the Appellant.

RESPONDENT’S SUBMISSIONS
The learned Attorney General of the Respondent conceded that he has the burden of proving the commission of the elements of offence of murder the Appellant was charged with beyond reasonable doubt. The three elements are that the deceased died, the accused was responsible for the death of the deceased unlawfully and he intended to kill the deceased, vide the case of STATE VS. ALI AHMED (2020) LPELR-49497 (SC).

It was the learned senior counsel’s submission that in this case, he proved on behalf of the Respondent that the stated ingredients of the offence of murder against the defendant through the four witnesses he called during the trial. He referred us to, and quoted extensively the evidence of PW2 to PW4 which he said was credible and unchallenged. That the learned trial Judge was right to accept the evidence in convicting the Appellant.

On the contention of identification of the deceased, the learned counsel submitted that the deceased was properly identified to the investigation police officer (IPO) as Usman Mohammodu and that even assuming the names of the deceased were not the same, but the corpus delicti was discovered in this case. He further argued that where the death of the victim was instantaneous as in this case, a medical report would not be desirable to show cause of death. He relied on the cases of THE STATE VS. ALI AHMED (supra), IDEMUDIA VS. STATE (1999) LPELR-1418 (SC) and STATE VS. SUNDAY (2019) LPELR-46943 (SC) to support his submissions and to urge us to resolve the lone Respondent’s proposed issue in its favour and dismiss this appeal.

The Appellant filed his reply brief on the 22nd November, 2021 on points of law to the Respondent’s submissions. He relied on the case of case of AZUBUIKE V. DIAMOND BANK PLC (2014) 3 NWLR (PT. 1393) 116 at 119 to insist that the evidence of PW2 which the trial Court relied upon as an eyewitness was full of contradictions and inconsistencies. Learned counsel invited us to look at the statements of PW2 made to the police on the 13th February, 2018 to compare it with his oral evidence in Court, to see the contradictions in the two. That while in his statement to the police a day after the incidence was to the effect that he could not identify the Fulani boy, but in his evidence before the trial Court, he said he knew the Appellant and could recognized him.

He further insisted that the Respondent has glaringly admitted to the fact that the Appellant was charged for the murder of someone that is totally unknown to the Appellant and for which the Appellant was not investigated. He urged us to quash the conviction of the Appellant on this argument.

RESOLUTION
In the determination of this appeal, I adopt the Appellant’s two issues as my guide because he is the owner of the appeal.

ISSUE ONE
Whether the lower Court was right in convicting the Appellant for the offence of murder of Mohamodu Usman when the identity of the deceased was not proved and established even as it was also not proved that the said Mohamodu Usman which the deceased was charged with killing was indeed dead and that it was the Appellant that caused his death.

The main grouse of the Appellant under this issue is that the person who died was identified as ‘Umaru Mohamodu’ not ‘Mohamodu Usman’ that the Appellant was charged of killing.

The learned counsel for the Appellant referred to several cases on the fundamental nature of the identity of the deceased in a murder trial. Both counsel have also correctly stated the three essential elements of the offence of murder, which the prosecution is required to prove beyound reasonable doubt to secure conviction. These are that there was a killing of a human being which was unlawful and the killing was caused by the intentional act or omission of the accused, which act or omission he did with the knowledge that death or grievous bodily harm was likely to be caused by his act or omission. See IDIOK VS. STATE (supra) referred to by the Appellant.

The Appellant’s learned counsel was also correct when he submitted that the first element to be established is the death of the deceased, before the other elements. And so I quickly ran to the record of appeal to see and carefully examine the evidence led by the prosecution. As always, we are guided strictly by the record of proceedings and the evidence contained therein and nothing more.

I find the evidence of PW1 (Sunday Akinluyi, the Asoju Oba Ararume Iyin- Ekiti) contained in pages 13 to 15 of the record. He testified that he got to know the Appellant “when he murdered his friend on the way to Aroto, in Odo Uro.” He narrated how he came to know that the Appellant murdered his friend, when he was called on telephone and informed by one Chief Jimoh Bello that one Fulani man beheaded another Fulani man in their environment. He said it was during the period when Boko Haram incidents were gaining rampancy and he became afraid. He immediately reported the information to his chairman and requested the information to be reported to the police. Upon receiving the information, the police officers visited the scene together with the person who reported to have witnessed the killing.

The evidence of PW2 (Danladi Usman) is contained in pages 15 to 16 of the record of appeal and because of the crucial nature of this evidence, I will reproduce it for guidance. He stated that:
“I am Danladi Usman. I live at Odo Uro. It is a village to Iyin-Ekiti. I know the defendant. He is a nomad. He used to shepherd cows around the farmlands in Odo Uro. On 12th February 2018, I was on my way back from the farm. I was on a motorbike. It was around 7.00 pm.
I sighted the defendant and one other man whom I could not recognize well. They walked past me, I saw the defendant standing up. He held on to a knife with blood stains. I saw a corpse behind the defendant. The defendant was returning the knife to its pouch. He then started running after his herd of cow.
I ran home to make a report to the Igbira bale, who later informed the Asoju Oba. Policemen came later to evacuate the corpse. We made statements at the police headquarters. We first reported at the New Iyin Road Police station, before we went to the police Headquarters. I did not make the statement by myself, when I talk (sic) my narration was written down, while I signed thereafter.”

That was PW2’s evidence in chief after which his two statements made at the New Iyin Road police station and at the Police headquarters on the same date of 13th February, 2018 were admitted in evidence as Exhibits ‘A’ and ‘B’ respectively without any objection. Under cross-examination by the Appellant’s counsel, PW2 stated further that:
“I had known the defendant for close to 4 years. I did not know his name then. The defendant is not the only Fulani man that plies the road with his cow. They are many. I saw the defendant with blood soaked matchet, in the process of returning it into its pouch. I also sighted a person fall down behind him. I did not witness the actual matcheting but I saw the defendant returning his blood soaked matchet into its pouch.
Two peoples (sic) that is the defendant and another were sighted by me coming from afar coming behind the herd of cow. The herd of cow took over the entire road, but all I saw was that the other man having fallen down, and the defendant was returning his blood stained matchet into its pouch. I parked my bike by the road side. I made a statement at the New Iyin Road station and State CID. I have made statement on what I saw. I did not identify the corpse to the police. I did not wait. I ran away.”

The above evidence of PW2 qualifies as evidence of an eyewitness. He was insistent of what he saw, and he stated clearly that he knew the defendant for four years as a nomad rearing his cows around the farms in his village. I particularly note that he was not shaken under cross-examination as to what he saw on that date. He saw the defendant with another who fell down and the Appellant returned a bloodied knife to its pouch.

Then there was the evidence of PW3, Police Inspector, Adewusi Adefisayo (pages 19 to 23 of the record) who stated that a case of murder was transferred to his office and he led a team of officers to the scene of the crime where “photographs were taken. The Corpse was moved to the Ekiti State Teaching Hospital for autopsy.” He was informed that a fulani boy called ‘Yellow’ was the person who murdered the deceased. So he contacted the Secretary of Miyetti Allah in Ekiti State one Mr. Zaiyanu Mohammed. It was this Mr. Zaiyanu Mohammed that identified the deceased as ‘Umaru Mohamodu because “they both resided around Atikankan area in Ado Ekiti” according to him. Upon this information, PW3 raised a signal to all police divisions of a wanted man Haruna Mohammodu aka ‘Yellow’ who was later arrested. This witness tendered photographs of the deceased taken at the scene of the crime and at the morgue, admitted without objection as Exhibits C1 to C4 series, and a matchet recovered from the Appellant was also admitted in evidence an Exhibit ‘D’. Under cross-examination, PW3 stated that the eye witness identified the Appellant as ‘yellow’ that killed the deceased.

PW4 was Zayanu Mohammed, the secretary of Miyettin Allah Ekiti State Association. His evidence is copied in pages 24 to 27 of the record. He stated that his job was to intervene in any matter involving Fulani in the state. He narrated that a police Inspector at CID (PW3) contacted him and he went to the CID office. He stated, inter alia in page 25 to 26 of the record: “I went to meet the officer at the office. He was an inspector, I cannot recall his names now. A sergeant also worked with him. I was asked if I am aware of the killing at Odo Uro by a Fulani person. We went there. I saw a Fulani with matchet cut at the back of his head. He is known to me as Usman Mohammed. I asked for time to make further enquiry from the Fulani quarter. I called an emergency meeting at Atikankan of all Fulani leaders. In the course of the meeting Alhaji Fayou Saliu said his boy, the cattle rearer has not back, but he had seen his hard (sic) of cow. The remaining cows were assembled. Alhaji Fayou Saliu called me to say that they saw Mohmodu Haruna by the bridge. I was told policemen saw him with a blood stained cutlass, and blood stains on his body. It was on the basis of blood stains that he was arrested.
I went to Odo Ado police station. There, I saw Mohamodu Haruna. I then called the policeman from the state CID. The case was transferred from Odo Ado Division to the police headquarter. At the headquarters, Alhaji Fayou asked the defendant why he left the cow alone?
The defendant replied that “he had a fight with Umaru Mohammed”. He was asked what caused the fight? He said….”

From the evidence on record, the person who identified the deceased was PW4 Zaiyanu Mohammed, secretary of Miyatti Allah Fulani Association of Ekiti State. He identified the deceased as “Usman Mohammed”. It was only the Appellant who said the name of the deceased was Umaru Mohammed as per the evidence of PW3 and PW4.

In any event, the death of a human being was established by the evidence on record. And his name was Usman Mohammed which was the identity given to the police by PW4 who said he knew the deceased because they lived in the same area, or Umaru Mohammed as stated by the Appellant, the fact remained that the death of a human being has been established. By the evidence of PW2, the Appellant was responsible for the death of the deceased as he narrated to the trial Court.

The Appellant’s learned counsel argued rather vehemently before us that the evidence of this witness was contradictory and not consistent. I disagree with the learned counsel. I see no such contradiction, rather the above reproduced evidence of PW2 is consistent on what the witness saw. He saw the Appellant with another person walked past him. Then he saw the second person fell and the Appellant putting back a bloodied knife in its sheath. He ran and reported and the corpse of a human being was evacuated by the police from where he saw the Appellant putting back a blood soaked knife in its pouch. He never identified the second person that he saw with the Appellant because he said he could not identify who he was. His evidence was that the police evacuated the corpse of the person he saw fell down.

The learned counsel has referred to the cases of PRINCEWILL VS. THE STATE (supra), IDIOK VS. STATE (supra), ENEWOH VS. STATE (supra), AKINLOLU VS. STATE (supra) and KADA VS. STATE (supra). I have read those cases and I found that the judicial consensus reached on all of them is that the prosecution must establish the death of deceased, whom the Appellant is accused of killing. That medical evidence is not a sine quo non in all charges of murder where the facts proved are conclusive to the cause of death of the deceased. On the identity of the deceased, an accused can be convicted of murder even where the body of the deceased was never recovered or seen, if death is proved by circumstantial evidence. Finally, the Apex Court in the case ENEWOH VS. STATE (supra), per AKPATA, JSC held that:
“The position however is that if there are facts from which it can be inferred that the corpse examined by the doctor was that of the deceased, the evidence of the person dead or alive, said to have identified the corpse is not indispensible. Indeed, a conviction for 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 for anyone to identify a body of a deceased to a doctor is not a sine quo non in all murder cases…. (Underlining provided for emphasis).

In this case, there was positive identification of the deceased and the body was recovered, and the Appellant was connected to the killing of the deceased and the weapon used was in evidence. The learned Appellant’s counsel contention regarding the identity of the deceased is untenable in the face of the heavy credible evidence of the witnesses on record. It is noted that indeed this same contention of the identity of the deceased was raised in the final written address of the Appellant’s counsel and the learned trial Judge in pages 72-73 of the record (pages 18-19 of the judgment) accepted the evidence of PW2, PW3 and PW4 as well as the photographs of the deceased admitted in evidence as exhibits C1-C4 showing the decapitated body of the deceased, and Exhibit D2 and D3 (cutlass and its sheath) to hold that the Respondent proved the death of Mohamodu Usman. In view of the evidence on record, which I have also taken the pains to reproduce (supra), I cannot fault the finding of the trial Judge. I am in total agreement with His Lordship that the deceased was properly identified as Usman Mohammed whose death has also been proved to be unlawfully caused by the Appellant. Issue one is resolved against the Appellant.

ISSUE TWO
Whether the lower Court was right in convicting and sentencing the Appellant for the offence of murder despite the fact that there was no compelling and irresistible evidence whether direct or circumstantial to ground the conviction.

This issue has been partly answered in the resolution of issue one. Under this issue, the Appellant contended that the reasoning of the learned trial Judge for the conviction of the Appellant was not sound in law. That the learned trial Judge relied on inconsistent and contradictory evidence of the prosecution, particularly the evidence of PW2 to convict the Appellant. He highlighted the inconsistency in the evidence of PW2, that while he said he sighted the Appellant and one other man walked past him, but under cross-examination, the witness said the Appellant and one other person were sighted “a far coming behind the herd of cow”. That he said he could not recognize the Fulani because it was night in his statement to the police (page 5 of the record) and that he did not see the two that passed him engaged in a fight.

I have looked at the statement of PW2 to the police referred to by the learned Appellant’s counsel in page 5 of the record. He stated therein that:
…. I am living at Odo-Oro via Iyin Ekiti. On 12-02-2018 at about 1930hrs, I was coming from the farm along Aroto farm settlement when I saw cow crossing the road and I parked my motor cycle and few minutes later the cow crossed the road and I saw one Fulani herdman putting his cutlass inside the pouch with blood staying(sic) and I saw another Fulani lying down in the pool of his blood. I ran to Odo-Oro to reported (sic) to the chief Jimoh Bello, head of Igbira community within the community, who later reported to the kabiyesi Oluyin of Iyin-Ekiti and reported the case to the police. I cannot recognize the Fulani if seen because it was night and I was afraid. I hereby made my statement.

I noticed that there is no contradiction on PW2’s evidence in stating that he saw the Appellant returning cutlass back to its pouch that was bloody and the evidence that one of the two Fulanis he saw fell. The statement and the oral evidence of PW2 is materially the same and I do not expect that he must state word for word what he stated to the police with the evidence in Court which will make it suspect as being tutored or rehearsed.

There was however the evidence of PW4 who identified the deceased and who narrated what happened after the arrest of the Appellant by the police. He (PW4) acted as interpreter between the Appellant and the police and his evidence showed that the Appellant did not return with the cow to his boss, one Alhaji Fayou because he said he had a fight with Umaru Mohamodu. See the evidence of PW4 reproduced supra in the course of the resolution of issue one.

I am of the firm view that the evidence led in this case sufficiently proved the offence of murder beyond reasonable doubt against the Appellant. The learned trial Judge was justified to so hold and to convict the Appellant. I resolve issue two against the Appellant.

Having resolved the two issues against the Appellant, I find no merit in this appeal and I dismiss it. I affirm the judgment of the High Court of Ekiti State sitting at Ado-Ekiti delivered on the 6th August, 2020 in respect of Charge NO: HAD/46C/2018.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read the judgment of my noble Lord and brother, B.B. Aliyu, JCA made available to me in draft and I agree with his reasoning and conclusion that this appeal is unmeritorious. The facts of this case played out the gory stories of devaluation of human life in this country and lawlessness by this generation. The law must be firm on the people who take the lives of fellow human beings with impunity. The Appellant was rightly convicted and sentenced by the lower Court. I equally dismiss this appeal as did by my noble Lord, B. B. Aliyu JCA and abide by the consequential orders therein contained.