HARUNA v. STATE (2022)

HARUNA v. STATE

(2022)LCN/16785(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, June 08, 2022

CA/ABJ/CR/946/2020

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

LUBABATU HARUNA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE OR SET ASIDE THE JUDGMENT OF A TRIAL COURT

An Appellate Court will not lightly interfere or set aside the judgment of a trial Court unless the Appellant is able to positively show or establish that the oral and documentary evidence proffered or tendered before the lower Court were not properly evaluated or considered. It must be proved that the judgment is not only perverse, but that it has led to a miscarriage of justice making it imperative for this Court to intervene and remedy the situation. See
1. AMOS BAMGBOYE & ORS VS. RAMI OLANREWAJU (1991) 4 NWLR (PART 184) 132 at 145 B – C per BELGORE JSC late CJN Rtd. who said:
“Once a Court of trial has made a finding of fact, it is no more within the competence of the appellate Court to interfere with those findings except in certain circumstances. The real reason behind this attitude of appeal Court is at a disadvantage as to the demeanour of the witnesses, in the lower Court to substitute its own eyes and ear for those of the trial Court which physically saw the witnesses and heard them and thus able to form opinion as to what weight to place on their evidence.” PER IGE, J.C.A

THE POSITION OF LAW ON THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

The Prosecution must prove its case beyond reasonable doubt and there is no evidential burden on the Defendant/Appellant to discharge until the Prosecution prima facie establish all the ingredients of the offences of which the Accused or Defendant is arraigned. See
1. ELVIS EZEANI V FRN (2019) 3 SCM 22 AT 38A – E per OKORO, JSC who said:
“There is no doubt that in criminal trials, the burden of proving the guilt of an accused person rests on the prosecution and does not shift, it is static throughout the trial. See Adeyeye v. The State (2013) 11 NWLR (Pt. 1364) 47, (2013) LPELR-19913 (SC), (2013) 2 SCM, 20. However, where the prosecution has led credible evidence before the Court which establishes a prima facie case against the accused, it is the duty of the accused to lead evidence to explain to the Court why the prosecution’s evidence should not be believed. In Muftau Bakare v. The State (1987) 1 NWLR (Pt 52) 579, (1987) LPELR – 714 (SC) at Page 14 – 15, per Oputa, JSC (of blessed memory), this Court held as follows:
“The primary onus of establishing the guilt of the Appellant was on the prosecution and this does and did not shift. What does shift, is the secondary onus or the onus of adducing some evidence which may render the prosecution’s case improbable and therefore unlikely to be time and thereby create a reasonable doubt. See R. V. Harry Lazarus Lobell (1957) 41 cr. App. R. 100 at P. 104 per Goddard L. CJ.” See also Igabele v. The State (2006) 6 NWLR (Pt 975) 100 at 131 paragraphs D-G, (2006) 3 SCM, 143.”
On the implication of proving the case beyond reasonable doubt my Noble Lord, OKORO, JSC said on P. 39D – E:
“The law is trite that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See Nwaturuocha v. The State (2011) 6 NWLR (Pt 1242) 170, (2011) 12 (Pt.2) SCM, 265, Akinlolu v. The State (2015) LPELR – 25986 (SC) Oseni v. The State (2012) LPELR – 7833 (SC), (2012) 4 SCM, 150; Miller v. Minister of Pensions (1974) 2 ER P. 372.” PER IGE, J.C.A

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment/decision of the High Court of Justice No. 2 Suleja, Niger State holden at Suleja, Niger State delivered in Charge No. NSHC/SD/CR/IC/2017 by HONOURABLE JUSTICE ISHAKU USMAN on the 30th day of June, 2020.

The Appellant and another were arraigned on an Amended Charge on 20th September, 2017 on a three (3) Count Charge as follows:-
“(1) That you Bashiru Haruna ‘M’ and Lubabatu Haruna ‘F’ both of Gajiri Area Sabon Wuse on the 3rd day of June, 2015 at about 0100 hrs in your house at Gajiri Area Sabon Wuse within Suleja Judicial Division did stab one Inspector Saidu Baban Ahmed ‘M’ and one Babban Yaya with a knife to death and you thereby committed an offence of Culpable Homicide Contrary to Section 221 of the Penal Code Law.
(2) That You Bashiru Haruna ‘M’ and Lubabatu Haruna ‘F’ both of Gajiri Area, Sabon Wuse on the 3rd day of June, 2015 at about 0100 hrs in your house at Gajiri Area, Sabon Wuse within Suleja Judicial Division did conspire to kill one Inspector Saidu Baban Ahmed ‘M’ and Babban Yaya by stabbing them to death with a knife. You thereby committed an offence of conspiracy contrary to Section 97 of the Penal Code Law.
(3) That you Bashiru Haruna of Gajiri Area Sabon Wuse on the 3rd day of June, 2015 at about 01:00 hours in your house at Gajiri Area Sabon Wuse within the Suleja Judicial Division attempted to kill one Ibrahim Gambo of the same address while sleeping in another room on your house by stabbing him with a knife on his left rib and you thereby committed an offence of attempted homicide contrary to Section 248 of the Penal Code Law.”

The plea of the Appellant and another were duly taken and the matter proceeded to trial and at the end of trial and address of learned Counsel to the parties, the learned trial Judge gave considered judgment wherein he held as follows:-
“It is trite that sentiments have no place in the law Courts. The sentence to be passed on an accused in a case of murder or culpable homicide punishable with death is fixed by statute and no Court has a discretion to change the sentence”.
On the third count, I hereby sentence the first Accused person to Two years imprisonment for the offence of causing hurt to IBRAHIM GAMBO the sentence which will commence from the date of his arrest.
On the second count charge of criminal conspiracy to commit murder contrary to Section 97 of the Penal Code. The section which read thus Section 97(1) “whoever is a party to a criminal conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in this penal code for the punishment of such conspiracy be punished in the same manner as if he had abetted such offence”.
Section 83(a) (b) PCA person abets the doing of a thing who-
(a) Instigate any person to do that thing.
(b) Engages with one or more other person or persons in any conspiracy, for the doing of that thing”
By Section 85 of the Penal Code – whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this penal code or by any other law for the time being in force for the punishment for such abetment, be punished for the offence”.
The offence which was abetted or conspired to be committed is murder hence Section 221 of the Penal Code provides punishment for murder with death.

Therefore I hold that the 1st Accused person having been convicted of criminal conspiracy to commit murder be punished with death and be hang by the neck till he is dead.
On the second count of the charge wherein the second Accused person Lubabatu Haruna has been convicted and found guilty, I hereby sentence her to be punish with death following the analysis under this second count and she should be hang by the neck till she be dead.
On the first Court of the murder of Inspector Saba Ahmed Saidu, and Saban Yaya which the first Accused person has been convicted. I hereby sentence him to death and Bashir Haruna the first Accused person be hang by the neck till he be dead.
On the first count the second accused person having not been found guilty, is hereby discharged and acquitted on the first count.”

The Appellant was dissatisfied with the judgment and has by his Notice and Grounds of Appeal dated 5th day of August, 2020 but filed on 18th September, 2020 appealed to this Court on seven (7) grounds which without their particulars are as follows:-
“GROUND ONE
The learned trial Judge erred in law in convicting and sentencing the Appellant for the offence of Conspiracy to culpable homicide after he had acquitted and discharged her of the principal offence of Culpable homicide punishable with death.
GROUND TWO
The learned trial Judge erred in law in convicting and sentencing the appellant for the offence of Conspiracy to culpable homicide when there was no cogent, credible and valid evidence to justify same.
GROUND THREE
The learned trial Judge erred in law by failing to invoke the inconsistency rule to outrightly reject or discountenance the aspects of PW1’s testimony which tended to incriminate the appellant as concocted afterthought.
GROUND FOUR
The learned trial Judge erred in law when he concluded and held as follows in his judgment:- “Defence counsel made conjectures about the evidence of the PW1 that compared with other statement or testimony that PW1 made before the former judge and the police, that placing them side by side with the testimony of PW1 now that they are contradicting (sic) inconsistent. Unfortunately, the said testimonies of PW1 before now were not tendered and all the Court will do in the instance is to invoke Section 167 (d) of the Evidence Act 2011 … “Evidence which could be and is not produced would if produced be unfavourable to the person who withholds it”.
GROUND FIVE
The learned trial Judge erred in law in convicting and sentencing the Appellant for the offence of conspiracy to culpable homicide punishable with death without adverting his mind to or considering the defence or defences available to the Appellant from the evidence before the Court.
GROUND SIX
The decision of the learned trial Judge is a nullity as it was deliver after over five months of conclusion and adoption of final addresses and thereby occasioned the appellant a substantial miscarriage of justice.
GROUND SEVEN
The decision is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence before the Court.”

The Appellant also sought the following Relief:
“RELIEFS SOUGHT 20M THE COURT OF APPEAL
To allow the appeal and set aside the conviction and sentence of the Appellant and in their stead, to discharge and acquit the Appellant of the offence of conspiracy to culpable homicide punishable with death.”

The Appellant’s Brief of Argument was dated 30th November, 2020 and filed on 7th December, 2020. The Respondent’s Brief of Argument dated 7th January, 2021 was filed on the 18th January, 2022. Appellant’s Reply Brief was dated 10th day of March, 2022 but deemed filed on 15th March, 2022.

The appeal was heard on 16th March, 2022 when judgment was reserved and the learned Counsel to the parties adopted their respective Briefs of Argument.

The learned Counsel to the Appellant, AGENT BENJAMIN IHUA-MADUENYI, ESQ formulated three (3) issues for the determination of appeal viz:-
“(1) Whether from the totality of legal evidence available before the lower Court, the learned trial Judge was right that the Appellant was guilty of the offence of conspiracy to commit Culpable Homicide contrary of Section 97 of the Penal Code.
(2) Whether the learned trial Judge was not in error when he proceeded to convict and sentence the Appellant to death by hanging for the offence of conspiracy to commit culpable homicide without first considering the defence or defences available to the Appellant from the evidence before the Court.
(3) Whether the over five months delay by the learned trial Judge in delivering his judgment which occasioned the Appellant a substantial miscarriage of justice did not render the said judgment a nullity.”

The learned Counsel to the Respondent UMAR HALILU, ESQ – Asst. Chief State Counsel, Attorney-General Chambers, Niger State Ministry of Justice also distilled three (3) issues for determination viz:-
“(1) Whether from the totality of legal evidence available before the lower Court, the learned trial Judge was right that the Appellant was guilty of the offence of conspiracy to commit Culpable Homicide contrary of Section 97 of the Penal Code.
(2) Whether the learned trial Judge was not in error when he proceeded to convict and sentence the Appellant to death by hanging for the offence of Conspiracy to commit culpable homicide without first considering the defence or defences available to the Appellant from the evidence before the Court.
(3) Whether the over five months delay by the learned trial Judge in delivering his judgment which occasioned the Appellant a substantial miscarriage of justice did not render the said judgment a nullity.”
The issues formulated by the learned Counsel to both parties are the same. However the issues formulated by the Appellant will be utilized in the consideration of this appeal and they shall be taken together.

Learned Counsel to the Appellant under issue 1 as to whether from the totality of legal evidence available before the lower Court, the learned trial Judge was right that the Appellant was guilty of the offence of Conspiracy to commit Culpable Homicide contrary to Section 97 of the Penal Code submitted that the Appellant and Bashir Haruna were charged together for the offences of Culpable Homicide punishable with death and Conspiracy to commit culpable homicide contrary to Sections 221 and 97 of the Penal Code. The Appellant and her co-accused were accused of stabbing Inspector Saidu Baba Ahmed (M) and Baba Yaya (M) to death, which in proof of both offences the Prosecution offered and relied on the self-same testimonies given by their three (3) witnesses before the lower Court. That although the State also called in aid and tendered the confessional statements of the Appellant and his co-defendant, Bashir Haruna, the learned trial Judge in his judgment rejected the confessional statement of the Appellant and marked it rejected.

That the proper legal approach as established by the apex Court is that where a defendant is charged with a principal or substantive offence as well as the offence of conspiracy, the trial Court should first determine the principal offence before considering the offence of conspiracy.

That the decision to discharge the Appellant on the principal offence and to convict Bashir Haruna on same was substantially influenced by the confessional statement of Bashir Haruna which was tendered in evidence as Exhibit A2 wherein Bashir Haruna expressly admitted stabbing the deceased persons, and insisting that the Appellant did not stab any of them or had any hand in their death.

That the legal consequence of the aforesaid confessional statement is that while Bashir Haruna completely pinned the commission of the principal offence on himself, he unambiguously exculpated the Appellant of complicity in all that is related to the commission of the offences charged in this matter.

Learned Counsel to the Appellant frowned at the learned trial Judge’s decision to find the Appellant and her co- defendant guilty of offence of Conspiracy and Culpable Homicide punishable with death and sentencing the two Accused to death by hanging.

That conspiracy is a separate offence which proof should ordinarily not be dependent on that of the principal offence but the law is still settled and where the facts used in establishment of conspiracy and the principal offence are so intricately interwoven, the failure to prove the main offence automatically translates to the collapse of the charge of conspiracy.
1. OKANLAWON V. STATE (2016) ALL FWLR (Pt. 825) 359 at 387 paragraphs A-B;
2. SULE V. STATE (2009) LPELR – 3125 (SC);
3. KAZEEM OSENI V STATE delivered on the 18th of May, 2017 in Appeal No. CA/IB/94C/2015;
4. OLASUNKANMI V THE STATE (2019) ALL FWLR (Pt. 1005) 503 at 526-528 paras H – D.

It is also submitted by learned Counsel to the Appellant that there were no cogent, credible and valid evidence before the lower Court which justified the Court’s conclusion that the Appellant was guilty of the offence of conspiracy to commit culpable homicide. That both PWs 1 and 2 testified as eye witnesses who saw all that transpired that fateful night. That PW2 did not see or testify as to any incriminating role played by the Appellant that fateful night. He referred to the Record at page 2-4 of PW1 extra-judicial statement and the State application for leave to prefer the charge and quoted in extension at page 10 of the Record the extra-judicial statement of PW1 to support his averment.

That where two prosecution witnesses contradict each other on a material aspect of the case in question, the Court cannot pick and choose between them, but is bound to treat both versions as unreliable, citing and relying on:
1. EKPOISONG V STATE (2009) 1 NWLR (Pt. 1122) 354 at 370 371 paragraphs H-C ratio 5;
2. OLASEHINDE V. STATE (2019) 1 NWLR (Pt. 1654) 555 at 573 paras A-E;
3. MAMUDA V. STATE (2019) 5 NWLR (Pt. 1664) 128 at 132 ratio 4.

That the learned trial Judge rightly treated the evidence of PW1 as unreliable, he would have seen that there is no other valid legal evidence before the Court which tends to incriminate the Appellant for the offence of conspiracy in this matter but that the learned trial Judge relied on the afterthought testimony of PW1 over issues admitted to have been tutored to narrate. Learned Counsel on this point pointed to pages 134 – 135 of the record to support his averment on the error committed by learned trial Judge and described it as untenable.

That Bashiru Haruna according to his confessional statement which learned Counsel said they have painstakingly studied committed the offence in a state of non-compos mentis, i.e. allusions to a mental ailment which afflicted him warranting the Appellant and her husband to take him in their house where he received traditional treatment.

Therefore that from the totality of evidence adduced it is crystal clear the Prosecution failed to prove the case of Conspiracy and Culpable Homicide to enable the trial Judge to accurately make his decision. That the decision of the learned trial Judge is erroneous and perverse and that issue no. 1 be answered in in the negative and appeal be allowed in favour of the Appellant.

ON ISSUE 2 as to whether the learned trial Judge was not in error when he proceeded to convict and sentence the Appellant to death by hanging for the offence of conspiracy to commit culpable homicide without first considering the defence or defences available to the Appellant from the evidence before the Court. Learned Counsel to the Appellant submitted that an abiding but compulsory duty of a Judge in every criminal proceedings is to consider the defence or defences available to the defendant from the evidence on record before the Court, even if such a defence appears to be weak, unreasonable, irrational or even stupid. See GABRIEL V. THE STATE (1989) 5 NWLR (Pt. 122) 457 at 464. That this duty is predicated on the constitutional presumption of innocence conferred on a defendant under Section 35(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). That it is also based on the constitutional right to fair hearing enshrined in Section 36(4).
That the confessional statement of Bashiru Haruna, co-defendant to the Appellant was admitted as Exhibit “A2” and that completely exculpated and exonerated the Appellant from commission of all the offences laid in the charge, he quoted page 145 of the record. That the Statement at page 145 of the record “Exhibit A2” was strongly confirmed by the evidence of the Appellant before the trial Court where she maintained her innocence of the offences charged, and the evidence remained firm and unshaken throughout cross-examination. And that same found support from the testimony of PW2 as well as the extra-judicial statement of PW1.

That the learned trial Judge did not consider the pieces of evidence before him which clearly afforded the Appellant the defence of innocence, and cited the cases of:
1. WILLIAMS V STATE (1992) 8 NWLR (Pt. 261)515;
2. EDIBO V STATE (2007) 13 NWLR 1051)306 at 322 paras B-C;
3. EDOHO V STATE (2010) 14 NWLR (Pt. 1214) 651 at 696 para D, per Tabai, JSC.

That there was available evidence of defence of legal impossibility for conspiracy to take place between Bashiru Haruna and the Appellant LUBABATU HARUN considering the level of Bashiru Haruna’s mental situation.

ON ISSUE 3 as to whether the over five months delay by the learned trial Judge in delivering his judgment which occasioned the Appellant a substantial miscarriage of justice did not render the said judgment a nullity. Learned Counsel to the Appellant relied on Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) mandating Courts to deliver judgments/decisions not later that ninety days (that is three months) after the conclusion of evidence and final addresses. That Subsection (5) thereof provides that a decision given after the stipulated period should not be declared a nullity unless it is shown to have occasioned a substantial miscarriage of justice.

That the above provision of the Constitution is to keep abreast the speedy dispensation of justice and to ensure that decisions are based on proper understanding and evaluation of the facts as they are fresh in the mind of the Court citing OLUSANYA V UBA (2017) LPELR (42348) 1 AT 10 – 12 (CA).

That from the record of the trial Court, final addresses of Counsel were adopted on 23rd of January, 2020 at page 84 of the record, and that the Court delivered its judgment on the 30th day of June, 2020 at page 107 of the records. That the five months period of delay of delivering the judgment rendered the said judgment a nullity and led the learned trial Judge to lose his impression of the evidence before him and thus the Appellant as a lady who was innocent of the offence charged against her as borne out of PW2 and the confessional evidence of the 1st defendant Bashiru Haruna, thus making the learned trial Judge to forget about the duty to consider the defences available before him thereby wrongfully proceeding to convict and sentence the Appellant.

That for the above reason there was a substantial miscarriage of justice and that the judgment is a nullity and ought to be set aside by this Honourable Court.

Learned Counsel urged the Court to resolve this issue in favour of the Appellant and allow the appeal.

The learned Counsel to the Respondent in response under issue 1 referred to paragraph 4.1. 7 of Appellant’s Brief where it was argued that facts used in the establishment of conspiracy and the principal offence are interwoven, the failure to prove the main offence translate to automatic collapse of the charge of conspiracy. Learned Counsel to the Respondent submitted that this is misleading as both the Supreme Court and this Court in the cited cases conditioned the failure of the conspiracy charge in the circumstance on the failure of the substantive charge. That such makes perfect sense because unless there is evidence of actual agreement between persons to commit a crime, it will be impossible to infer such an agreement from the facts of commission of the crime you could not prove. In the circumstance under consideration in this appeal however, the main charge of Culpable Homicide punishable with death did not fail. That the 1st accused person charged alongside the Appellant was convicted and sentenced on that charge and that there was proven fact of the main offence from which the learned trial Judge could and did inferred conspiracy.

On a non-existing inconsistency between the evidence of PW1 and PW2 who gave eye witnesses account of the incident resulting in the death of Inspector Baba Ahmed and Baban Yahaya and near death of PW2 himself that the Appellants however did not point out exactly what the material contradictions were in the evidence of these 2 credible Prosecution Witnesses.

That in the normal course of events, it is to be expected that witnesses may not always speak of the same facts or events with equal and regimented accuracy. This is particularly so in a situation which they speak from fairly faded memory in respect of a matter they consider from slightly different perspectives. Learned Counsel cited the following cases:
1. AKINTAN JSC in OGUN V. AKINYELU (2004) 18 NWLR (PT. 905) 362 AT 392;
2. NWOKORO V. ONUMA (1999) 12 NWLR (PT. 631) 342;
3. ENAHORO V. QUEEN (1965) NWLR 265;
4. EMISTOR V. STATE (1975) 9 – 11 SC 112 PER PETER-ODILI; JCA IN WAMBAI V MUSA (2009) LPELR-8186 (CA).

That it is not every discrepancy and/or inconsistency in the testimonies of the witnesses for the prosecution that will vitiate a decision. He also cited the following cases:
1. OKONJI v. STATE (1987) 1 NWLR (PT. 52) 65,
2. STATE v. AIBANGBEE (1988) 3 NWLR (PT. 84) 54,
3. WANKEY v. STATE (1993) 5 NWLR (PT. 295) 54,
4. AZU v. STATE (1993) 6 NWLR (PT 299) 30,
5. THEOPHILUS v. STATE (1996) 1 NWLR (PT. 423) 13,
6. AKINDIPE v. STATE (2012) ALL FWLR (PT. 638) among others.

He submitted on extra-judicial Statement that the Extra Judicial Statement of P1 and his testimony in the previous proceedings were never part of the proceedings leading to the Appellants conviction giving rise to this appeal, and further that the evidence of PW1 in a previous aborted proceedings and his extra-judicial statement could only have been useful to impeach his credit only and no more, since it was the Appellant’s job at trial to put the documents to him under cross-examination and moreso not tendering them in evidence to afford the learned trial Judge an opportunity to examine and compare same with his evidence before him. That this Court should resist their invitation to query the learned trial for not looking at the evidence they refused to bring before him.

That nothing in the confessional statement of the 1st accused can exonerate the Appellant of the offence of conspiracy for which she was convicted and is now appealing against. That even if it could benefit the Appellant it can only exonerate the Appellant of the charge of killing the deceased for which the trial Court did discharge her and not for conspiracy.

That the learned trial Judge was have treated the said extra-judicial statement of the PW1 and his evidence or testimony in the previous aborted proceedings as evidence that were never produced before him for which he invoked the provision of Section 167 (d) of the Evidence Act; citing:
1. SHONEKAN V. SMITH (1964) 1 ALL NLR 313;
2. AYINDE V. SALAWU (1989) NWLR (PT. 109) 297 AT 315;
3. DADA V. BANKOLE (2008) 1 SC (PT. 111) 219 AT 230;
4. SHANU V. AFRIBANK (NIG) PLC (2002) LPELR-3036 (SC);
5. AYORINDE & ORS V. SOGUNRO & ORB. (2012) LPELR-7808 (SC).

ON ISSUE 2 as to whether the learned trial Judge was not in error when he proceeded to convict and sentence the Appellant to death by hanging for the offence of conspiracy to commit culpable homicide without first considering the defence or defences available to the Appellant from the evidence before the Court, learned Counsel to the Respondent responded to the Appellant on learned trial Court’s refusal to consider what they called the Defences of Innocence and legal impossibility, available to the Appellant at trial, the failure of which they urge this Court to set aside the conviction as a half-truth as far as the position of the law regarding the failure of a trial Court to consider a defence available to an accused person is concerned. Learned Counsel cited what he said the law is more elaborately enunciated in Alao v. State (2011) LPELR 37000 Pp. 47-48, paras. A-D and relied upon.
That the Appellant was convicted for the offence of conspiracy to commit Culpable Homicide Punishable with Death and not Culpable Homicide punishable with death. That she was convicted for conspiring to kill the deceased not for killing him, hence the learned trial Court in fact found substantial evidence of some overt acts of the Appellant in the testimony of PW1 and PW2, from which it inferred and convicted her for conspiracy as she was at the scene at the time of the incidence. She was also at the trial and heard all the evidence against her and testified as DW2. She said nothing about the incidence and even tried to claim her husband is not dead.

That the 1st and 2nd accused persons who conducted a joint defence at the trial could have called evidence of the 1st accused person history or conduct shortly before the incidence, of prison officials who have had his care for years, of medical officers or psychiatrist, but they didn’t even call a family member to give evidence not even the Appellant who is a biological sister of the 1st accused, charged together with him and who testified as DW2 mentioned a word about the 1st accused person insanity, the only evidence on the record is the sole testimony of the 1st Accused persons.

Learned Counsel to the Respondent therefore stated that there is no credible evidence or fact on the record to establish the insanity of 1st Accused making any claim of his impossibility to conspire baseless and urge the Court to discountenance the Appellant’s arguments and resolve issue 2 in favour of the Respondent.

ON ISSUE 3 as to whether the over five months delay by the learned trial Judge in delivering his judgment which occasioned the Appellant a substantial miscarriage of justice did not render the said judgment a nullity, relying on Section 294 (1) of the Respondent’s learned Counsel submitted that there was a total lockdown of the country and all Courts and prisons were locked down for months. That the 2 months delay couldn’t have been averted by the learned trial Judge because of a force majeure i.e. the nationwide lockdown by the Covid – 19 – Pandemic, and also Appellants have not shown how it occasioned a miscarriage of justice against them. Learned Counsel to the Respondent urge the Court to so hold and resolve issue 3 in favour of the Respondent and also dismiss the Appellant’s appeal.

The reply of Appellant is a re-argument of submissions contained in the main Brief of Argument. The reply brief is hereby discountenanced.

RESOLUTION OF ISSUES
On issues 1 and 2 as to whether on the totality of legal evidence available before the lower Court the Appellant was rightly convicted of Culpable Homicide and Conspiracy without considering the defence or defences opened to the Appellant the learned Counsel to the Appellant submitted that the learned trial Judge was wrong.

To the learned Counsel to the Respondent, the trial Judge rightly evaluated the evidence against the Appellant and that Appellant was properly convicted.

An Appellate Court will not lightly interfere or set aside the judgment of a trial Court unless the Appellant is able to positively show or establish that the oral and documentary evidence proffered or tendered before the lower Court were not properly evaluated or considered. It must be proved that the judgment is not only perverse, but that it has led to a miscarriage of justice making it imperative for this Court to intervene and remedy the situation. See
1. AMOS BAMGBOYE & ORS VS. RAMI OLANREWAJU (1991) 4 NWLR (PART 184) 132 at 145 B – C per BELGORE JSC late CJN Rtd. who said:
“Once a Court of trial has made a finding of fact, it is no more within the competence of the appellate Court to interfere with those findings except in certain circumstances. The real reason behind this attitude of appeal Court is at a disadvantage as to the demeanour of the witnesses, in the lower Court to substitute its own eyes and ear for those of the trial Court which physically saw the witnesses and heard them and thus able to form opinion as to what weight to place on their evidence.”
2. IRENE NGUME (ALIAS IRENE OKOLI) VS. ATTORNEY GENERAL, OF IMO STATE (2014) 7 NWLR (PT. 1405) 119 AT 140 E – H per M. D. MUHAMMAD, JSC who held thus:
“It was the trial Court that saw the witnesses during trial and heard their testimonies. This afforded the trial Court the opportunity of observing the demeanour and idiosyncrasies of the witnesses, the trial Court is expected to make full use of the opportunity it had of seeing and observing the witnesses in the Court of their testimonies and having regard to applicable law and common sense arrive at the conclusions a reasonable Tribunal in that circumstance will arrive at.
It remains within the purview and competence of the trial Court, therefore, for obvious reasons, to first evaluate evidence of witnesses. The trial Court does not share this jurisdiction with the appellate Court and where its evaluation is borne out from the evidence on record, an appellate Court cannot interfere in such a circumstance even if the appellate Court concludes that the trial Court should have evaluated the evidence of the witnesses differently.
“Where, however, the trial Court failed to use the opportunity afforded it to properly evaluate the evidence adduced at a trial, the appellate Court is competent to re-evaluate the evidence on record in order to obviate miscarriage of justice. See IWUOHA vs. NIPOST (2003) NWLR (PT. 833) 308, 343 – 344, ADEYE VS. ADESANYA (2001) 6 NWLR (PT. 708) 1 and IRAGUNMA VS R.S.H.P.D.A. (200B) 12 NWLR (PT. R. 834) 427.”

The Prosecution must prove its case beyond reasonable doubt and there is no evidential burden on the Defendant/Appellant to discharge until the Prosecution prima facie establish all the ingredients of the offences of which the Accused or Defendant is arraigned. See
1. ELVIS EZEANI V FRN (2019) 3 SCM 22 AT 38A – E per OKORO, JSC who said:
“There is no doubt that in criminal trials, the burden of proving the guilt of an accused person rests on the prosecution and does not shift, it is static throughout the trial. See Adeyeye v. The State (2013) 11 NWLR (Pt. 1364) 47, (2013) LPELR-19913 (SC), (2013) 2 SCM, 20. However, where the prosecution has led credible evidence before the Court which establishes a prima facie case against the accused, it is the duty of the accused to lead evidence to explain to the Court why the prosecution’s evidence should not be believed. In Muftau Bakare v. The State (1987) 1 NWLR (Pt 52) 579, (1987) LPELR – 714 (SC) at Page 14 – 15, per Oputa, JSC (of blessed memory), this Court held as follows:
“The primary onus of establishing the guilt of the Appellant was on the prosecution and this does and did not shift. What does shift, is the secondary onus or the onus of adducing some evidence which may render the prosecution’s case improbable and therefore unlikely to be time and thereby create a reasonable doubt. See R. V. Harry Lazarus Lobell (1957) 41 cr. App. R. 100 at P. 104 per Goddard L. CJ.” See also Igabele v. The State (2006) 6 NWLR (Pt 975) 100 at 131 paragraphs D-G, (2006) 3 SCM, 143.”
On the implication of proving the case beyond reasonable doubt my Noble Lord, OKORO, JSC said on P. 39D – E:
“The law is trite that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See Nwaturuocha v. The State (2011) 6 NWLR (Pt 1242) 170, (2011) 12 (Pt.2) SCM, 265, Akinlolu v. The State (2015) LPELR – 25986 (SC) Oseni v. The State (2012) LPELR – 7833 (SC), (2012) 4 SCM, 150; Miller v. Minister of Pensions (1974) 2 ER P. 372.”
2. OLUSANYA ONITILO VS THE STATE (2018) 2 NWLR (PART 1603) 23 AT 257 F – H TO 258A per KEKERE-EKUN, JSC who said:-
“My Lords, it is the settled position of the law that the burden of proof in a criminal trial lies on the prosecution throughout and does not shift. The accused person enjoys a constitutionally guaranteed presumption of innocence. It is the duty of the prosecution to rebut the presumption. Furthermore, it is an onerous burden, as the standard or proof required is proof beyond reasonable doubt. Igbi v The State – (2000) 3 NWLR (Pt. 648) 169, Amala v The State (2004) 12 NWLR (Pt. 888) 520, Amadi v. FRN (2008) 12 SC (Pt. 111) 55; (2008) 18 NWLR (Pt. 1119) 259.

The Appellant was arraigned along with one BASHIRU HARUNA on three count charge as follows:-
“(1) That you Bashiru Haruna ‘M’ and Lubabatu Haruna ‘F’ both of Gajiri Area Sabon Wuse on the 3rd day of June, 2015 at about 0100 hrs in your house at Gajiri Area Sabon Wuse within Suleja Judicial Division did stab one Inspector Saidu Baban Ahmed ‘M’ and one Babban Yaya with a knife to death and you thereby committed an offence of Culpable Homicide Contrary to Section 221 of the Penal Code Law.
(2) That You Bashiru Haruna ‘M’ and Lubabatu Haruna ‘F’ both of Gajiri Area, Sabon Wuse on the 3rd day of June, 2015 at about 0100 hrs in your house at Gajiri Area, Sabon Wuse within Suleja Judicial Division did conspire to kill one Inspector Saidu Baban Ahmed ‘M’ and Babban Yaya by stabbing them to death with a knife. You thereby committed an offence of conspiracy contrary to Section 97 of the Penal Code Law.
(3) That you Bashiru Haruna of Gajiri Area Sabon Wuse on the 3rd day of June, 2015 at about 01:00 hours in your house at Gajiri Area Sabon Wuse within the Suleja Judicial Division attempted to kill one Ibrahim Gambo of the same address while sleeping in another room on your house by stabbing him with a knife on his left rib and you thereby committed an offence of attempted homicide contrary to Section 248 of the Penal Code Law.”

I have carefully read the pieces of evidence given by the 1st – 3rd PW against the Appellant and I am of the strong conviction that the Prosecution woefully failed to prove all the ingredients of the three Count Charge laid against the Appellant.

Firstly the so called confessional statement of Appellant and that of co-accused relied upon so heavily by the Prosecution was not obtained in accordance with the law. And Exhibits A1 and A2 made by Appellant in CA/ABJ/CR/947/2020 exonerated the Appellant herein that she knew nothing about the killings and stabbing of the victims that died through the wrongful act of 1st Defendant.

Secondly, the learned trial Judge found in favour of the Appellant herein that is LUBABATU HARUNA (F) to the effect that her statement tendered as Exhibit B was inadmissible.

For avoidance of doubt and ease of reference, I reproduce hereunder the findings of lower Court viz:-
“PW3 ASP ELISHA DANDARE the investigation police officer testified that he personally recorded statement of the two accused persons while he recorded the statement of the 1st Accused person in Hausa language and subsequently translated it to English language, but for the 2nd Accused person, that he recorded her statement in English language and that after recording the statement he read it to her and that made her impression. Under cross-examination, PW3 answered that the second Accused person does not understand English. In ASUQUO VS STATE (2016) LPELR 40597 (SC) The Supreme Court holding on whether the statement of an Accused person must be recorded in the language he speaks or understands and after translated into English. Per Aka’ahs JSC… It is a constitutional requirement that of an Accused person does not understand English at all and he makes a statement, it must be recorded in the language he speaks or understand and later translated into English see Section 36(c) of the Constitution of Federal Republic of Nigeria 1999 (as amended)” Without mincing steps, Exhibit B which is a purported statement of the second Accused person Lubabatu Haruna which was recorded in English language wherein PW3 who recorded the statement has answered under cross-examination that 2nd Accused person does not understands English, the statement having been recorded in English instead of the language which the 2nd Accused person speaks or understands and there was no translation of same to the language she under stands the Court hereby expunge Exhibit B and same should be marked, inadmissible or tendered but rejected. In BUHARI VS INEC AND ORS (200B) 19 NWLR Part 1120 P. 246 – A Court of law can reconsider its earlier decision on the admissibility or inadmissibility of the document at the stage of writing judgment, notwithstanding the expulsion or rejection of 2nd Accused person purported statement, the findings under evidence of eye witness which the prosecution implored alongside with the confessional statement of the defence which are independent ways of establishing guilt of an Accused person in a criminal trial still stand and I hereby resolve the lone issue for determination in affirmative. The Prosecution her proved charges against the Accused persons.”

I am of the firm view that there is a gross misdirection on the part of the lower Court in finding the 2nd Accused guilty of the three counts contained in the three count charge against the Appellant and her co-defendant. There is no strong evidence linking her with the commission of any of the offences for which the Appellant was charged along with the co-defendant.

The finding of the lower Court against the Appellant to the effect that she was guilty of any of the offences contained in the charge against her is perverse.

Issues 1 and 2 are resolved against the Respondent in favour of the Appellant.

Having found in favour of Appellant in respect of issues 1 and 2, issue 3 becomes otiose and it is struck out (that is issue 3) only.

Consequently, the Appellant’s appeal has merit and it is hereby allowed.

The judgment of the Niger State High Court delivered on 30th June, 2020 by HON. JUSTICE ISHAKU USMAN against the Appellant LUBABATU HARUNA (F) IS HEREBY SET ASIDE.

The APPELLANT IS HEREBY DISCHARGED AND ACQUITTED of the THREE COUNT CHARGE aforesaid.

The Appellant shall forthwith be released from Correctional Centre/Prison Custody.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother, Peter Olabisi Ige JCA, has been made available to me in draft.

I agree with the reasoning and conclusion reached.

I also agree that issues 1 and 2 be resolved in favour of the appellant and that the judgment of the High Court of Niger State delivered on the 30/06/2020 be set aside against the appellant, Lubabatu Haruna. I also order that the appellant be discharged and acquitted accordingly.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA.

I equally agree with the reasoning and the conclusion that the appeal has merit. I accordingly allow the appeal and abide by the consequential orders therein.

I too set aside the judgment of the Niger State High Court delivered on the 30th day of June, 2020 by Hon. Justice Ishaku Usman.