HENSLEY v. STATE
(2022)LCN/16796(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Tuesday, May 24, 2022
CA/YL/26C/2021
Before Our Lordships:
Fatima Omoro Akinbami Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
SIMON HENSLEY APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE MEANING OF “HOMICIDE”
The Supreme Court has held in a plethora of cases that:
“Generally, homicide means the killing of one person by another, it is also the act of purposely knowingly, recklessly or negligently causing the death of another human being. However, culpable homicide is a wrongful act that results in a person’s death but does not amount to murder.” Per Ariwoola in DANBABA VS. THE STATE (2018) LPELR 43841; APISHE VS. THE STATE (1969) 1 ALL NLR PG. 270; WILLIAMS VS. INSPECTOR GENERAL OF POLICE (IGP) (1965) NMLR PG. 470; ADAMU VS. THE STATE (2014) ALL FWLR PT. 1416, PG. 441. See also Blacks Dictionary 9th Edition, Pages 802 and 803. PER AKINBAMI, J.C.A.
THE INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE
The ingredients of the offence of Culpable Homicide are:
1) The deceased died.
2) The death of the deceased resulted from the act of the Accused Person.
3) The Accused person caused the death of the deceased intentionally or With the knowledge that death or grievous bodily harm was its probable consequence. Per Augie in SANI VS. THE STATE (2019) 43475. See S.221 of the Penal Code, SULE AHMED (ALIAS EZA) VS. THE STATE (2001) 18 NWLR PT. 746, PT. 622; AKPA VS. THE STATE (2007) 2 NWLR PT. 1019, PG. 509; USMAN ABUBAKAR VS. THE STATE (2017) LPELR 43197; OYAKHERE VS. THE STATE (2005) LPELR 11325; GALADIMA VS. THE STATE (2017) LPELR 43469; SAADU VS. THE STATE (2018) LPELR 44709; EDWINOGBA VS. THE STATE (1992) 2 NWLR PT. 222, PG. 164; AKINFE VS. THE STATE (1988) 3 NWLR PT. 85, PG. 729; ONAH VS. THE STATE (1985) 3 NWLR PT. 12, PG. 236.
In BASIL AKPA VS. THE STATE (2006) LPELR 7603, the Court held that the three ingredients of the offence of Culpable Homicide must be proved or co-exists before a conviction could be secured. Failure to establish any of the ingredients would result in an acquittal. See ADAVA VS. THE STATE (2006) 9 NWLR PT. 984, PG. 152; SANI VS. THE STATE (Supra). PER AKINBAMI, J.C.A.
THE POSITION OF LAW WHERE A PERSON BY AN UNLAWFUL ACT CAUSES GRIEVOUS BODILY HARM TO ANOTHER PERSON
These are intentional acts that the Appellant intended to cause grievous bodily harm. The use of the knife was an intentional act. It is the law that a person intends the natural consequences of his actions and if there was an intention to cause grievous bodily harm and death results, then the Appellant must be held culpable for the offence. See NWOKEARU VS. THE STATE (2010) 15 NWLRPT. 1215, PG. 1; NJOKU VS. THE STATE (2013) 2 NWLR PT. 1339, PG. 548. See ABDU VS. THE STATE (2014) LPELR 22562. It is trite law that where a person by an unlawful act, causes grievous bodily harm on another person leading to the death of that person, he is presumed to have intended to kill that person and he will be guilty of culpable homicide punishable with death regardless of his intention. A man is presumed to intend the natural consequences of his act. AUDU VS. THE STATE (2003) 7 NWLR PT. 820, PG. 516; AFOLABI VS. THE STATE (2016) LPELR 40300.
It is a matter of common knowledge that if one stabs with a sharp knife on vulnerable parts of the body, such person could be deemed to have intended to cause such bodily injury as he knew death could result from his action. See GARUBA VS. THE STATE (2000) 4 SCNJ PG. 315; ALAO VS. THE STATE (2011) LPELR 3700; AFOLABI VS. THE STATE (Supra); THE STATE VS. HARUNA (2017) LPELR 43351; NWOKEARU VS. THE STATE (Supra); HALLIRU VS. THE STATE(2016) LPELR 41310; THE STATE VS. HARUNA (2017) LPELR 43351. PER AKINBAMI, J.C.A.
WHETHER OR NOT THE COURT MUST CONSIDER THE DEFENCE OPEB TO AN ACCUSED PERSON IN A CRIMINAL CASE
A Court is under a duty to consider any defence open to an Accused in this case, the Appellant or raised by an Accused before convicting on a particular offence. LADO VS. THE STATE (1999) 9 NWLR PT. 619, PG. 369; ULUEBEKA VS. THE STATE (2000) 4 SC PT. 1, PG. 203; OFORLETE VS. THE STATE (2000) 7 SC PT. 1, PG. 80; ARABI VS. THE STATE (2001) 12 WRN PG. 158. PER AKINBAMI, J.C.A
THE PRESUMPTION OF THE INNOCENCE OF AN ACCUSED PERSON
The law is that in all criminal cases, every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved. GUOBADIA VS. THE STATE (2004) 6 NWLR PT. 869 PG. 360; ANI VS. THE STATE (2002) 10 NWLR. PER AKINBAMI, J.C.A
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision of the Adamawa State High Court of Justice Yola, delivered on the 29th day of April, 2019 by Hon Justice A. A. Waziri wherein after a trial for Culpable Homicide punishable with death under Section 221, of the Penal Code Law of Adamawa State, the learned trial Judge found the Appellant guilty and sentenced him to death by hanging. (The Appellant will henceforth be referred to simply as appellant.)
STATEMENT OF FACTS:
The Appellant was charged with the offence of Culpable Homicide punishable with death contrary to Section 221(4) of the Penal Code Laws of Adamawa State 1997, and punishable under same.
During trial and in a bid to prove its case, the prosecution called two witnesses, both of whom are Police officers. The said Police officers are one, Sergeant Joshua Williams as PW1, who testified as an Exhibit keeper, he tendered the alleged knife used in killing one Danladi Emmanuel.
The second prosecution witness is Inspector Humphrey Eli, the investigating Police officer who recorded the statement of the Appellant and through him a confessional statement was tendered.
The Appellant formulated three issues for the determination of this appeal :
1. WHETHER OR NOT THERE WAS EVIDENCE BEFORE THE TRIAL COURT TO WARRANT THE CONVICTION OF THE APPELLANT.
2. WHETHER OR NOT THE PROSECUTION PROVED ITS CASE BEYOND REASONABLE DOUBT.
3. WHETHER OR NOT THE TRIAL COURT WAS RIGHT IN AMENDING THE DATE IN THE CHARGE AFTER CROSS EXAMINATION.
In arguing Issue 1, Appellant’s counsel submitted that there is absolutely nothing by way of evidence before the trial Court to warrant the conviction of the appellant herein. He referred to Section 187 (2) of the Criminal Procedure Code, to the effect that even where an accused person admits his guilt, same never relieves the prosecution of the burden of prove. Learned counsel submitted that even when the statement of an accused person is tendered and admitted in evidence by the prosecution, it is to simply prove that the statement was taken from the accused and not as proof of the truth of its content. See FRN VS MICHAEL (2018) 6 NWLR Part 1616 page 438 at 488 particularly at page 473 paras B-C, E-G. See SUBRAMANIAM VS. PUBLIC PROSECUTOR (1958) 1WLR 968; M.A SANUSI VS. STATE (1984)10 SC, 166 at pages 198-9; BAYO ADELUMOLA VS THE STATE, SC/133/1986; UTUYORUME V. STATE (2010) VOL. 43 Weekly Reports of NIGERIA (WRN) Page 162 at 166.
The prosecution without more only tendered and relied on the alleged confessional statement of the appellant and the knife as exhibit, without proving more, not even the death of any human being as alleged. See STATE VS OGBUBUNJO (2001) LPELR 3223; USMAN VS STATE (2010) ALL FWLR Part 524 page 1691 at page 1698 paras E-G, wherein the Court listed the essential ingredients for the offence of Culpable Homicide to include:
1. That the deceased a human being has died
2. That the death of the deceased was caused by the appellant
3. That the appellant has caused the death of the deceased
Intentionally with the knowledge that death was a probable consequence of his act.
See FRN VS SANI (2014) 2 NWLR Part 1433 page 299 at 308-9 particularly at paras B-D; BABATUNDE VS STATE (2014) 2NWLR Part 1391page 298 at 303 particularly page 322 paras A-E, 326 paras C-E 331 paras E-C.
Learned counsel submitted that for a conviction of culpable Homicide to be sustained, prosecution must prove the three (3) essential ingredients as stated above. See USMAN VS STATE (Supra). See also ANEKWE VS STATE (2014) 10 NWLR Part 1415 page 353 at page 357 particularly at page 378-9 paras H-C.
It is submitted that where death is in issue, there must be evidence of such death for prosecution to secure a conviction. See OBASI VS STATE (2015)12 NWLR Part 1473 wherein the Court on the ingredient of the offence of murder held that “there must be evidence of the death of the deceased”.
This is more so in the instant case, where the prosecution, alleged through one Emmanuel Inuwa, the father of the victim/deceased, Danladi Emmanuel, who was said to have reported the incident to the police and also alleged that the corpse was taken to Hong Cottage Hospital for a postmortem examination.
There was nothing before the trial Court suggesting that a human being or anybody with the name Danladi Emmanuel died. It was urged upon this Court to hold, and resolve same in favour of the Appellant as same is a “sine qua non” for prosecution to succeed in a case of culpable homicide, and for which prosecution were unable to prove in the instant case. It is submitted that for a Court to successfully convict on confessional statement alone, certain conditions must be met. See OKASHETU VS STATE (2016)15 NWLR Part 1534 page 126 at page 135. Where the vital element of an offence charged which needs proof beyond reasonable doubt is not proved, the prosecution’s case must fail, this is the holding of the Supreme Court in GEORGE VS FRN (2014) ALL FWLR Part 718 page 879 at 886 page 889 paras B-C.
It is submitted further that the failure of the prosecution to call in vital evidence, which includes one Mr. Emmanuel Inuwa, the father of the deceased Danladi Emmanuel, as contained in the prosecutions list of witnesses at page 4, of the record of proceeding, is not only fatal to the prosecution’s case but leaves much to be desired on the part of the prosecution.
See OGUDO VS STATE (2011)18 NWLR Part 1278 page 1 at page 12-13 particularly at page 31-32 paras G-G; SALE V STATE (2016) PART 1499 at 392 page 415 paras A-B.
Section 167(d) of the Evidence Act should be invoked in favour of the Appellant to the extent that prosecution has more witnesses on their list which they refused or neglected to call. Particularly, the father of the alleged deceased Danladi Emmanuel.
This gap left in the prosecution’s case cannot be filled by the Court. See ATUFE VS. OGHOMIENOR (2004)13 NWLR PART 890 page 322 at 334 particularly paras c-d. It is submitted that prosecution has failed to prove its case against the defendant now Appellant beyond reasonable doubt. The burden of proof never shifts. See Section 135 of the Evidence Act. The legal consequence of failure of prosecution to prove the ingredient of offence charged beyond reasonable doubt, where the vital element of an offence charged which needs proof beyond reasonable doubt is not proved, the prosecution’s case must fail. See GEORGE VS. FRN (SUPRA) page 879 at 886 paras B-C.
The Court is referred to page 55, line 14 of the record of appeal wherein prosecution witness 1, testified thus “I have come to Court to tender an exhibit which was recorded by Yuguda Abubakar, it is registered by the name Simon Hensley with CERNO/258/2008 dated 11/11/2008”.
Learned counsel submitted that no such exhibit was ever recovered from the defendant by the Police. He referred the Court to EXHIBIT B, which is the statement of the Appellant at the Police station at page 11, of the record of appeal, the last paragraphs wherein it was stated thus “I was taken to Gomuda police station. The knife I used and stabbed Danladi i throw it in the bush and I know where the knife is now if I go with police, I will show them where the knife is”
From the totality of the evidence before the trial Court, prosecution never proved to the Court how the said knife was recovered on the 11/11/2008 by the prosecution almost three months after the alleged commission of the said offence. Prosecution only brought the said exhibit which they never found.
The Court is referred to page 57, paragraphs 6 of the record of appeal wherein the prosecution witness number PW2, inspector Helmphrey Eli told the trial Court under cross examination thus:
“yes I recorded the statement in Exhibit B . The offence was allegedly committed on the 17/7/2008”.
Learned counsel submitted that, at that point the prosecution applied to close their case. There was no re -examination to correct the difference in date given by the said PW2, and that on the charge before the Court which is 17/8/2008. See page 3 of the record of appeal with respect to the particulars of offence and the date therein.
It is submitted that the prosecution had contradicted itself when PW2, gave a different date as to when the incident occurred, and what was on the Charge. This is a material contradiction which the prosecution could not explain by way of re- examination. See SANI V STATE (2015) 15 NWLR Part 1483, 522, at page 545 Paras A-C.; ALIU V STATE (2015)2 NWLR Part 1445 page 51 at 97-98 paras H-B.
The prosecution on the 4th July 2018, after the said contradiction of PW2, then brought an application to amend date on the charge, which was opposed. It is submitted that the learned trial Judge erred in law, when he allowed the application of the prosecution to amend their charge as regards only to the date which the witness PW2, has already been crossed examined on. The Appellant ought to have appealed that Ruling of the trial Court.
Learned counsel contended that the said amendment was done in bad faith, with the aim to overreach the Appellant herein he urged the Court to so hold. See AKANINWO VS NSIRIM (2008) ALL FWLR Part 410 page 611 at 617 ration14; YUSUF V. MOBIL OIL (NIG)LTD (2019)13 NWLR PART 1689 Page 374 at 380- 381 at page 393 paras A-G
The third issue for determination is distilled from grounds one, two and three of the appeal. It is our submission that the amendment sought was in respect of an issue of fact i.e the date of the commission of the alleged offence. Whatever ambiguity that may have arisen therein can only be cured by re -examination by prosecution and not otherwise by an amendment. See Section 215(3) of the Evidence Act.
Further and equally fundamental is the fact that the said prosecution application for amendment, being on issue of fact, was not supported by an affidavit to explain the reason for the said amendment sought.
Learned counsel referred to page 13 paragraph 2 of the record of appeal which reads thus “ The amendment of the charge is in respect of the date wherein the accused person committed the offence for which he is being trial”. Further at page 15, of the said record on the particulars of offence, it reads thus:
“That you Simon Hensley “M” of Urdun village in Ga’anda District of Gombi Local Government Area of Adamawa State on or about the 17th July 2008 at 1400hrs in Urdun village in Ga’anda District of Gombi L.G.A within Yola Judicial Division stabbed one Danladi Emmanuel to death on the chest with a knife with the knowledge that death would be the probable and not only a likely consequence of your act”
The Court is referred to page 3 of the record of appeal with respect to the initial Particulars of Offence, and submit that the only thing that was amended on the charge was the date from 17th August 2008 to 17th July 2008.
It is submitted that the said amendment was done in bad faith to overreach the Appellant. Particularly considering the fact that the PW2, who testified on this matter had been crossed examined by the Appellant and prosecution had applied to close her case after informing the trial Court that it has no need for the re-examination of her said PW2. See page 57 of the record, particularly at paragraphs 6,7 and 8. Learned counsel urged this Court to so hold in the interest of Justice. See AKANINWO VS NSIRIM (2008) ALL FWLR Part 410 page 611 at 617 ration 14; YUSUF V. MOBIL OIL (NIG) LTD (Supra) Learned counsel concluded that from the totality of the evidence before the trial Court, and the arguments canvassed on the issues on this appeal, this Court ought to allow this appeal by setting aside the decision of the trial Court, and make orders as appropriate.
The respondent herein adopted the three issues as formulated by the Appellant which are as follows:
A. Whether or not there was evidence before the trial Court to warrant the conviction of the appellant.
B. Whether or not the prosecution proved its case beyond reasonable doubt.
C. Whether or not the trial Court was right in amending the date in the charge after cross examination.
Respondent’s counsel submitted that the Court should resolve both issues one and two in favour of the Respondent hold that there was proof and ample evidence before the Court to warrant conviction of the Appellant.
He agreed with the fact that in criminal trial, the burden of proof is on the prosecution. See Section 132 of the Evidence Act 2011. More so, the standard of proof required by law where crime is directly in issue whether in civil or criminal matter, it must be proved beyond reasonable doubt. See Section 135 (1) of the Evidence Act 2011.
In the instant case the prosecution called two witnesses; PW1 one Sgt. Joshua William an Exhibit Keeper who tendered a Knife that was used in the commission of the offence after identifying same, and PW2 Inspector Humphrey Ehi, the investigating Police officer at the Homicide Section of the State Criminal Investigation Department (SCID). Both the knife, and the confessional statement of the Appellant were admitted in evidence and marked as Exhibits without objection from the defence counsel.
It was reiterated by learned counsel that from the evidence of the two prosecution witnesses, the charge of culpable Homicide preferred against the Appellant was proved beyond reasonable doubt as require by our criminal jurisprudence. The agitation of Appellant’s counsel that the prosecution tendered only the exhibits and no more is unfounded as they failed to enter defence to rebut the weighty evidence against the Appellant. Prove beyond reasonable doubt does not mean prove beyond all shadow of doubt. This long standing principle was formulated by Lord Denning Master of Roll in English Court in the case of MILLER v. MINISTER OF PENSIONS (1947) 2 All ER Pg. 372:
‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice”.
This dictum found expression in Nigerian Courts as in the case of UDO V. THE STATE (2006) ALL FWLR Pt. 337 Pg. 456 AT 467 para C-D. where the Supreme Court held thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt.”
On whether the ‘prosecution is required to call certain number of witnesses to prove his case, the Court of Appeal in the case of ULUEBEKA v. STATE (2011) 4 NWLR Pt. 1237 Pg. 358 AT 378 para E-G held thus:
”Although the burden on the prosecution is to prove its case against the accused person beyond reasonable doubt, the prosecution has a discretion to call only those witnesses required to unfold its case.
The law does not impose on the prosecution, the duty or function of both the prosecution and defence. The Court proceeded in Pp. 376 para G and 377 para B-C thus:
“A Court can and is entitled to act on the evidence of one single witness if the witness is believed, given all the circumstances of the case. A single credible witness can establish a case beyond reasonable doubt unless where the law requires corroboration. In other words, the evidence of one credible witness accepted and believed by Court, is sufficient to justify a conviction except where such a witness is an accomplice in which case, his testimony will require corroboration. “
It has been reiterated by plethora of judicial decisions that the accused person can be convicted solely on his confessional statement. This decision reechoed in the Supreme Court case of BASSEY v. STATE (2012) 12 NWLR Pt. 1314 Pg. 209 AT 227 para F-G in which it was held:
“Where an accused person confesses to an offence in his exra-judicial statement and had no objection to the statement being tendered and admitted in evidence, and did not resile in his testimony in Court, there will be no need to look for evidence outside the confession anymore. The accused person is in the best position to say if he committed the offence. In the instant case, exhibit 7, the appellant confessional statement, was admitted without any objection from his counsel and the appellant never denied making statement to the police. “
It is submitted that the ratio cited in the case Bassey v. State (supra) was what played out on the Appellant. The confessional statement of the Appellant was tendered without objection, and he did not resile same in his defence, the Court is duty bound to consider same. (See page 56-57 of the record of Appeal)
Their lordships stated emphatically in the case of BASSEY v. STATE (SUPRA) AT Pg. 227 para F-G thus:
“Once a confessional statement is in evidence, it becomes part of the case of ‘the prosecution which the Court is bound to consider provided that it admits all the essential elements of the offence charged, and when tested against proven facts will show that the accused person or persons committed the offence.”
The Appellant admitted killing the deceased in his confessional statement by stabbing him with knife, the knife that the appellant used was also identified and admitted in evidence. (See pages 44-45 of the record of appeal).
Learned counsel submitted that, with the admission of the confessional statement of the Appellant the lower Court is safe to enter a verdict of guilt against the Appellant, all other issues of calling further witness, body of the deceased or medical report are immaterial. This Court is urged to jettison the Appellant’s argument in that regard as they are irrelevant and unsubstantiated. Judicial authority cited in support of that argument are opaque and misconceived.
Learned counsel submitted that the Appellant acting the role of the Biblical woman that slept upon her son that died, and in the middle of the night exchanged her dead son with live one of her mate. The opportunity was given to the Appellant to cross examine and even raise objection to the evidence of the prosecution, all these they failed to do so, they cannot turn round now to say there is a missing link, no death of human being, vital witness was not called by the prosecution etc. At best they could have entered a defence no matter what to either retract or resile the statement, but supposedly they are navigating the safe route in resting their defence on the case of the prosecution, unknown to them they made a ship wreck of their situation.
The Supreme Court in the case THE STATE v. MUSA (2020) 2 NWLR Pt. 1709 Pg. 499 AT 527 para F-H held thus:
“A confessional statement is properly regarded as the strongest evidence of guilt of an accused person charged with an offence and so when, as in the instant case, the confession is free and positive, it is enough to secure conviction by the prosecution. “
The argument of the Appellant on the admissibility of the two exhibits i.e. the Knife and the confessional statement does not hold water as he ought to have challenged both exhibits beforehand during the trial, failure to do that, he cannot at this point in his argument raise the Issue. The Supreme Court in the case SALE v. STATE (2020) 1 NWLR Pt. 1705 Pg. 205 AT 247 para B-E held thus:
“It is at the trial-within-trial that, an accused person can effectively challenge the prosecutor as to the voluntariness vel non of a confessional statement. If the confessional statement is admitted after the trial-within-trial the accused person cannot argue that he did not make the confession voluntarily without first impugning the trial-within-trial. A voluntary confession which is direct, positive, and satisfactorily proved is sufficient to warrant conviction even without any corroborative evidence so long as the Court is satisfied of the truth of the confession”.
The Hon. Justices in the same case of SALE v. STATE (SUPRA) AT Pg. 248 para B-D proceeded to state on treatment of unchallenged evidence by the Court as thus:
“A cogent, uncontroverted and unchallenged evidence of a witness alone can ground conviction. In the instant case, the evidence of PW3 did not only corroborate the confessional statement, it remained uncontroverted. The trial Court was therefore right to place reliance on it. “
It is also the Respondent’s submission that there is no contradictions in the testimony of PW2, Inspector Humphrey Ehi testimony regarding the date of commission of the crime in issue. The witness stated under cross examination that he recorded the statement in exhibit “B’ and the offence was committed on the 17-7-2008 which is exactly the same date with confession of the Appellant in exhibit ‘B’. (See pages 57 and 44 of the Record of Appeal).
Assuming without conceding there are contradictions in the testimony of PW2, Inspector Humphrey Ehi, could it be said that the contradictions are material to vitiate the proceedings of the trial Court? The answer is a capital NO. For contradictions to nullify a proceeding in any case that contradiction must be material. The Court in the same case of KAWU v. STATE (2020) 13 NWLR Pt. 1740 Pg. 39 AT Pp. 59-60 para F-G proceeded to state thus:
”The nature of contradictions that will be fatal must relate to material facts and must also be substantial. It must deal with the real substance of the case. Put it the negative, a contradiction is not material when the contradictory evidence does not affect the live issue or issues in the case to the extent that the judgement would be given in favour of the party who called the contradictory evidence. Minor inaccuracies, discrepancies and even minor contradictions that do not touch on the core substance of the case, cannot be regarded as material contradictions and so do not vitiate a trial. In the instant case, in weighing the nature of the so called contradictions, the difference in evidence in the evidence of PW1 and PW2 on the colour of the handle of the knife used in stabbing the deceased – black or red, the actual sport where the deceased was eventually stabbed – in front of Ada Peto’s house or on the way to the bush, and whether PW1 and PW2 arrived upon the scene at the actual moment the Appellant stabbed the deceased or soon thereafter when the deceased, still in the presence of the appellant was shouting “waiyo Alhaji Babayo has killed me”, all evidently amount to nothing discrepancies and minor inconsistencies that do not detract from the substance/kernel of the cumulative evidence of these eye witnesses that it was the appellant who was on that fateful night, stabbed the deceased with a knife in the right side of his neck which act caused him to bleed profusely and subsequently led to his untimely death instantly on the spot”
It is submitted that the Appellant’s counsel is making heavy weather on the date of the commission of crime, which date on the earlier charge is 17th August, 2008 and that of the amended charge reads 17th July, 2008. (pages 3 and 15 of the Records of Appeal). Could it be said that this is material or fatal to prosecution case? The answer is certainly NO. The Appellant did not deny stabbing Emmanuel Danladi rather denying the date on which he stabbed the deceased. This is immaterial and same is not fatal to the prosecution’s case. He urged this Court to so find and hold.
The address or legal argument of Appellant’s counsel with all the attractive closing speeches cannot take the place of evidence. See SALE v. STATE (supra) AT Pg. 250 para C-D. This Court is urged to find and hold that there is ample evidence and sufficient prove by the prosecution to warrant conviction; and issues one and two formulated and argued herein be resolved in favour of the Respondent as against the Appellant.
ISSUE THREE.
Whether or not the trial Court was right in amending the date in the charge after cross examination
In arguing Issue 3, learned counsel submitted that the Court should resolve this issue in favour of the Respondent as against the Appellant to find and hold that, the trial Court was right in amending the charge after the cross examination of the prosecution witnesses. The Appellant was charged for the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code Laws of Adamawa State 1997. The Criminal Procedure Law of Adamawa State applicable at that time is Criminal Procedure Code of Adamawa State 1997.
Section 208 (1) and (2) of the Criminal Procedure Code of Adamawa State 1997 provides as follows.
208 (1) Any Court may alter or add to any charge or frame a new charge at any time before judgment is pronounced. “
(2) “Every such alteration or addition or new charge shall be read and explained to the accused and his plea thereto shall be taken.”
It was submitted by counsel that the amendment of charge by the trial Court, before judgment is pronounced is within the contemplation of law and same is justiciable. The law requires that, once a charge is amended, same must be read over and explained to the accused person and his plea be taken. That was what took place in the trial Court with the Appellant. The amended charge was read and explained to the Appellant he and was asked to take his plea. (See pages 63-64 of the record of appeal). Their lordship in the same case of BUDE v. STATE (2016) 12 NWLR Pt. 1525 Pg. 154 AT Pp. 168-169 para G-A held thus:
“Failure to read and explain any alteration or addition to a charge to an accused person, and to take his plead thereto, violates the principle of fair hearing and renders the trial a nullity.”
It was noted by counsel that this is not the case in this case as every alteration was read and explained to the Appellant and he took a fresh plea. (see pages 63-64 of record of appeal).
It was finally submitted on this issue three that, the Court has powers to amend charge, the judge Appellant cannot contest the amendment made by the Court which is statutory and has not in any way occasioned a miscarriage of justice to the Appellant that will lead to reversal of the judgment of the trial Court.
Learned counsel urged this Court to find and hold that the trial Court was right to have amended the charge in respect of the date even at the cross- examination and issue three formulated and argued herein be resolved in favour of the Respondent as against the Appellant. And on the strength of the Respondent’s argument and authority cited hereto, that this Court is to resolve all the three issues herein formulated by the Appellant and same adopted by the Respondent against the Appellant and to dismiss this appeal .
RESOLUTION:
The Supreme Court has held in a plethora of cases that:
“Generally, homicide means the killing of one person by another, it is also the act of purposely knowingly, recklessly or negligently causing the death of another human being. However, culpable homicide is a wrongful act that results in a person’s death but does not amount to murder.” Per Ariwoola in DANBABA VS. THE STATE (2018) LPELR 43841; APISHE VS. THE STATE (1969) 1 ALL NLR PG. 270; WILLIAMS VS. INSPECTOR GENERAL OF POLICE (IGP) (1965) NMLR PG. 470; ADAMU VS. THE STATE (2014) ALL FWLR PT. 1416, PG. 441. See also Blacks Dictionary 9th Edition, Pages 802 and 803.
The ingredients of the offence of Culpable Homicide are:
1) The deceased died.
2) The death of the deceased resulted from the act of the Accused Person.
3) The Accused person caused the death of the deceased intentionally or With the knowledge that death or grievous bodily harm was its probable consequence. Per Augie in SANI VS. THE STATE (2019) 43475. See S.221 of the Penal Code, SULE AHMED (ALIAS EZA) VS. THE STATE (2001) 18 NWLR PT. 746, PT. 622; AKPA VS. THE STATE (2007) 2 NWLR PT. 1019, PG. 509; USMAN ABUBAKAR VS. THE STATE (2017) LPELR 43197; OYAKHERE VS. THE STATE (2005) LPELR 11325; GALADIMA VS. THE STATE (2017) LPELR 43469; SAADU VS. THE STATE (2018) LPELR 44709; EDWINOGBA VS. THE STATE (1992) 2 NWLR PT. 222, PG. 164; AKINFE VS. THE STATE (1988) 3 NWLR PT. 85, PG. 729; ONAH VS. THE STATE (1985) 3 NWLR PT. 12, PG. 236.
In BASIL AKPA VS. THE STATE (2006) LPELR 7603, the Court held that the three ingredients of the offence of Culpable Homicide must be proved or co-exists before a conviction could be secured. Failure to establish any of the ingredients would result in an acquittal. See ADAVA VS. THE STATE (2006) 9 NWLR PT. 984, PG. 152; SANI VS. THE STATE (Supra).
In proof of these three (3) ingredients, the Prosecution called two (2) Prosecution Witnesses (PW1) and PW2 who tendered Exhibits A and B. There is no controversy whether the deceased died. The deceased died on the spot as a result of stabbings with a knife by the Appellant.
The Prosecution elicited in evidence the fact that the deceased died as a result of stab wounds inflicted on him by the Appellant. The Appellant too in his Extra Judicial Statement, Exhibits B gave evidence of how he stabbed and killed the deceased.
On the issue whether the Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The prosecution proved this by the evidence of the PW1 and the Appellant himself in Exhibit B.
These are intentional acts that the Appellant intended to cause grievous bodily harm. The use of the knife was an intentional act. It is the law that a person intends the natural consequences of his actions and if there was an intention to cause grievous bodily harm and death results, then the Appellant must be held culpable for the offence. See NWOKEARU VS. THE STATE (2010) 15 NWLRPT. 1215, PG. 1; NJOKU VS. THE STATE (2013) 2 NWLR PT. 1339, PG. 548. See ABDU VS. THE STATE (2014) LPELR 22562. It is trite law that where a person by an unlawful act, causes grievous bodily harm on another person leading to the death of that person, he is presumed to have intended to kill that person and he will be guilty of culpable homicide punishable with death regardless of his intention. A man is presumed to intend the natural consequences of his act. AUDU VS. THE STATE (2003) 7 NWLR PT. 820, PG. 516; AFOLABI VS. THE STATE (2016) LPELR 40300.
It is a matter of common knowledge that if one stabs with a sharp knife on vulnerable parts of the body, such person could be deemed to have intended to cause such bodily injury as he knew death could result from his action. See GARUBA VS. THE STATE (2000) 4 SCNJ PG. 315; ALAO VS. THE STATE (2011) LPELR 3700; AFOLABI VS. THE STATE (Supra); THE STATE VS. HARUNA (2017) LPELR 43351; NWOKEARU VS. THE STATE (Supra); HALLIRU VS. THE STATE(2016) LPELR 41310; THE STATE VS. HARUNA (2017) LPELR 43351.
With the above, I believe the Prosecution in the lower Court established the three ingredients in the offence of Culpable Homicide.
The Appellant rested his case on the prosecution’s case at the trial.
A Court is under a duty to consider any defence open to an Accused in this case, the Appellant or raised by an Accused before convicting on a particular offence. LADO VS. THE STATE (1999) 9 NWLR PT. 619, PG. 369; ULUEBEKA VS. THE STATE (2000) 4 SC PT. 1, PG. 203; OFORLETE VS. THE STATE (2000) 7 SC PT. 1, PG. 80; ARABI VS. THE STATE (2001) 12 WRN PG. 158.
The law is that in all criminal cases, every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved. GUOBADIA VS. THE STATE (2004) 6 NWLR PT. 869 PG. 360; ANI VS. THE STATE (2002) 10 NWLR.
In this Appeal, the Appellant did not show any sign of insanity or that he was not corpus mentis at the time of the crime.
The weapon he used manifestly showed that he knew the knife would cause the maximum damage to the body. The deceased was stabbed by the Appellant as can be garnered from Exhibit B. The Appellant instead of opening his defence chose to rest his case on that of the prosecution. The Appellant having admitted in his confessional statement that he committed the offence in question is enough evidence of proof of the crime against him as required by Section 28 of the Evidence Act, 2011. In the case of Solola v State (2005) 2 NWLR (Pt 937) page 460 at497-498 paras H-B the Supreme Court held:
“A confessional statement is the best evidence in the Nigerian Criminal Procedure. It is a statement of admission of guilt by the accused and the Court must admit it in evidence unless it is being contested at the trial. Once a confessional statement is admitted the prosecution need not prove the case against the accused person beyond reasonable doubt as the confessional statement ends the need to prove the guilt of the accused. If a confessional statement is contested at the trial, procedural law requires that the rial Court should conduct a trial within trial for the purpose of determining the admissibility or otherwise of the statement.”
The learned trial judge in my view came to the correct position of the law that by the provision of Section 28 of the Evidence Act, 2011 “ an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed the crime amounts to a confession”. See case of lkemson & 2 Ors v The State (1989) 3 NWLR (pt110) 455 at 476 : lmport v The State (2016) 3 SCNJ PG63.
It was correctly pointed out by the trial judge that the Appellant on the 28/8/2008 gave the police his confessional statement which was tendered and admitted in evidence marked as Exhibit B without objection from learned counsel for the Appellant. I agree with the trial judge that from Exhibit B , that from Exhibit B , the Appellant admitted killing the said Danladi Emmanuel. Therefore death of a human being was proved beyond reasonable doubt. And the said death was caused as admitted by Appellant as stated in Exhibit B.
The learned trial judge in my view rightly disbelieved that the Appellant can rely on the defence of provocation to reduce the offence of culpable homicide punishable with death to culpable homicide not punishable with death under Section 222, of the Penal Code. The defence of provocation could not have availed the Appellant because “a stab with a knife is poles apart from holding a neck in the eyes of the law. I agree with the learned trial judge that the defence of provocation cannot avail the Appellant.
In the case of Ali v State (1988) 1 NWLR (pt 68) 1 Akintan JSC at page 379 paras E-G stated “ Again the Appellant did not offer any defence at his trial, and all that he is now raising in this appeal ought to have been taken up as an objection before entering his plea. The parties would have joined issues on each point and be heard before a Ruling was made on every issue so raised. But raising them first at the Appellate level would be futile since no proper foundation evidence was laid at the trial upon which the Appellate Court could come to a conclusion that a breach had been committed. Again merely resting his case on that of the prosecution amounts to nothing less than admission of the evidence led by the prosecution.”
Premised on the above case the trial judge was right to have found the Appellant guilty and have convicted him.
On the issue of the amended charge, learned trial judge rightly referred to the subsisting Ruling of the Court where the charge was amended. On the cause of death of deceased, the pronouncements of the Supreme Court relied on by the trial judge are the position of the law. See Bakun v The State (1965) NMLR 163 at 164 where Ademola CJN stated thus: “ The learned Judge believed the evidence of witnesses who were present as well as the confession of the Appellant made before he ran away. It was argued before the trial judge that the cause of death was not proved. We are in agreement with his view 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 then be inferred that the wound inflicted caused the death.”
In the case of Sunday Ikuebeka v The State (2000) 11 FWLR 1827 the Supreme Court held “It is now trite law in homicide cases that, where the cause of death is obvious as in the instant case medical evidence ceases to be of practical legal necessity.”
The position of the learned trial judge, that it is absolutely unnecessary for the prosecution to prove the cause of death of the deceased Danladi Emmanuel neither by medical evidence or otherwise is fortified by the evidence in this case. In view of the decisions of both the Court of Appeal and the Supreme Court, the holding of the learned trial judge that the failure to tender the translated version of the confessional statement of the Appellant is of no moment is one not to be disturbed.
With the resolution of the Issues in this appeal in favour of the prosecution, against the Appellant.
This Appeal is unmeritorious. It is dismissed. I affirm the judgment of the learned trial Judge, A. A. Waziri delivered on the 29th April 2019. The Appellant is convicted for the offence of Culpable Homicide and sentenced to death.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother FATIMA OMORO AKINBAMI, JCA afforded me the opportunity to read the draft copy of the lead judgment just delivered. I am in agreement with the decision of my learned brother in dismissing the appeal and affirming the judgment of the lower Court.
I have nothing further to add.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft the leading judgment Just delivered by my learned brother, FATIMA OMORO AKINBAMI, JCA in the matter. I entirely agree with his conclusion and issues in this appeal.
Appearances:
FRANCIS ADAM OGBE, ESQ. For Appellant(s)
U. J. KONLEGANYIGA, ESQ. Director Civil Litigation Adamawa State Ministry of Justice For Respondent(s)
