IBRAHIM v. C.O.P
(2022)LCN/16821(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Wednesday, February 23, 2022
CA/MK/17C/2020
Before Our Lordships:
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Olasumbo Olanrewaju Goodluck Justice of the Court of Appeal
Between
MARYAM IBRAHIM APPELANT(S)
And
COMMISSIONER OF POLICE RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED PERSON ON HIS CONFESSIONAL ADMITTED STATEMENT
Now the law is trite, that a Court can convict on the confessional admitted statement but with centenary advice, it is desirable to have some other corroborated evidence aside the confessional.
Before a person can be convicted of a crime, it is usually necessary for the prosecution to prove
(a) that a certain event on a certain state of affairs which is forbidden by the criminal law has been caused by the conduct of the defendant
(b) this conduct was accompanied by a prescribed state of mind to wit act is (sic) reus, and mens rea of crime both these elements must be proved beyond reasonable doubt by the prosecution. See IDOWU VS STATE (2007) SC (Pt. 11).
So before a person is liable for culpable homicide, it must be established that he killed a reasonable feature to with a human being.
The law is now also trite that confessional statement of a defendant is admissible in evidence even the Court (sic) is satisfied that it was a voluntary statement and relevant to the proceedings and even if the defendant late (sic) retracted from that voluntary statement. Thus once a confessional statement is proved properly. It is sufficient to sustain a conviction even if it is retracted by the maker as in the instant case. See SHANDE VS STATE (2015) 1 NWLR (Page not provided). PER ONIYANGI, J.C.A.
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
Under Section 135 of the Evidence Act, 2011, the standard of proof required in criminal cases is proof beyond reasonable doubt. The meaning and connotation of proof beyond reasonable doubt is that proof beyond all reasonable doubt does not mean or import or connote beyond any degree of certainty. The terms strictly mean that within the bounds of evidence adduced and staring the Court in the face, no Tribunal of justice worth itself would convict on it having regard to the nature of the evidence led and the law marshaled out in the case. It can be said that evidence in a criminal trial that is susceptible to doubt cannot be said to be beyond all reasonable doubt. See AGBO V STATE (2006) 1 SC (Pt. 11) 73 at 104.
In the case of MILLER V MINISTER OF PENSON (1947) 2 ALLER page 372 at 373, Lord Denning said thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. 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 not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice;” was cited with approval. STATE V ONYEUKWU (2004) 7 SC (Pt. 1) 1 at 31-32. PER ONIYANGI, J.C.A.
THE POSITION OF LAW WHERE DOUBT IS FOUND IN THE EVIDENCE OF THE PROSECUTION
The law is trite that in criminal trial, where doubt is found in the evidence of the prosecution, the doubt must be resolved in favour of the accused person. See FRN V ABUBAKAR (2019) LPELR – 46533, INYANG EDET V THE STATE (1988) LPELR – 1008 (SC), HAPPY KINGSLEY IDEMUDIA V THE STATE (2015) LPELR – 24835. The effect or consequence of doubts found in the evidence of the prosecution would lead to the discharge of the accused. What I am saying is that whenever doubt is found in the evidence of the prosecution against the accused, the accused should be discharged. See SAMBO ALHAJI GALADIMA V THE STATE (2017) LPELR – 41909, OKONJI V STATE (1987) LPELR – 2479, AFOLAHAN V STATE (2017) LPELR 43825 and KAZEEM ORIYOMI SODIQ V THE STATE (2020) LPELR – 49760. Let me add that were the existence of essential facts which the prosecution relies on is tainted in doubts, the case of the prosecution should fail. See FRIDAY AIGUOREGHIAN & ANOR V THE STATE (2004) LPELR – 270 SC. PER ONIYANGI, J.C.A.
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Nasarawa State sitting in Lafia in Suit No. NSD/LF44C/2015 delivered by Aisha Bashir J. on the 2nd day of July, 2020 wherein the Appellant, though charged on a one count charge of culpable homicide contrary to Section 220 of the Penal Code and punishable under Section 221 of the same Law was found guilty, convicted under Section 235 of the Penal Code and sentence to 14 years’ imprisonment.
The summary of the fact leading to the arrest, trial and conviction of the Appellant in this appeal as can be garnered from the record of appeal goes thus:
That on 24th day of February 2015, one Musa Madaki of Angwan Riga Madaki in Mararaba was said to have reported to the B Division of the Police that on the 23rd day of February, 2015 one of his subjects in the domain reported to him that he saw a woman (the Appellant) in an uncompleted building and that the said woman delivered to a baby and thereafter smashed the head of the baby with a stone and threw the baby away into a nearby bush. Thereafter the suspect, (Appellant) was arrested and detained. Consequent upon the conclusion of investigation the suspect, {Appellant} was arraigned before the High Court at Lafia Nasarawa State for an offence of culpable homicide contrary to Section 220 of the Penal Code Law and punishable under Section 221 of the same law.
Upon conclusion of the trial, the accused (Appellant) was eventually found guilty of an offence of child destruction punishable under Section 235 of the Penal Code Law, convicted and sentenced to 14 years imprisonment.
Dissatisfied with the conviction and sentence, hence this appeal by the Appellant and which is predicted on the Notice of Appeal thus (see pages 123-125 of the Record of Appeal). The Grounds of Appeal are: –
GROUND 1
“The learned trial judge erred in law when he convicted the Appellant for the offence of child destruction and proceeded to sentence the Appellant to 14 years imprisonment and thus has occasioned a miscarriage of justice.”
GROUND 2
“The judgment of the trial Court is unreasonable, unwarranted and cannot be supported having regard to the evidence.” The record of appeal having been transmitted timeously on 29th day of September, 2020 led to the filing and exchange of briefs of argument by the respective Counsel in this Appeal.
APPELLANT’S BRIEF OF ARGUMENT
The Appellant’s brief of argument authored by Olasupo Ati-John Esq., on the 12th day of November, 2020. Therein, the Appellant submitted the following lone issue for the determination of the appeal.
ISSUE FOR DETERMINATION
“Whether having regard to the circumstances of this case, the Court below was right in convicting the Appellant for the offence of child destruction and sentencing her to 14 years imprisonment.’’
RESPONDENT’S BRIEF OF ARGUMENT
Upon receipt of the Appellant’s brief of argument, the Respondent through his Counsel, E. U. Aliyu Esq. Principal State Counsel, Nasarawa State filed his brief of argument on the 10th day of December, 2020. He did not submit any issue for the determination of the appeal rather, he adopted the lone issue distilled by the Appellant.
This appeal therefore will be determined on the lone issue by the Appellant to wit: –
“Whether having regard to the circumstances of this case, the Court below was right in convicting the Appellant for the offence of child destruction and sentencing her to 14 years’ imprisonment.”
The contention of the learned Counsel representing the Appellant is that the learned trial judge erred in law in convicting the Appellant for the offence of child destruction and sentencing her to a jail term of 14 years. He argued that the evidence of the prosecution is full of lapses and did not disclose any offence against the Appellant. He added that the learned trial judge found that there is doubt in the evidence of the prosecution as to whether the child was born dead or alive. The Court resolved the doubt in favour of the Appellant. This led to the conclusion of the learned trial judge that the Appellant cannot be held liable for the offence of culpable homicide punishable with death as charged, strangely however the learned trial judge proceeded to convict the Appellant for the offence of child destruction punishable under Section 235 of the penal code law. According to him this presupposes that the child was born alive. He reiterated the ingredient of the offence under Section 235 of the Penal Code Law and added that it is trite that the prosecution should prove the offence against the accused beyond reasonable doubt. He relied on the case of EGBIRIKA V STATE (2014) ALL FWLR (PT. 225) 237 at 260 para D. He queried whether the prosecution has proved the ingredients of the offence under Section 235 of the penal code beyond reasonable doubt against the accused. He argued that one of the ingredients of the offence is that the baby must be born alive or to prevent it from being born alive. He added that no act is identified to have been done by the Appellant to suggest that she caused the destruction of the baby. He argued further that the learned trial judge having found that there exists doubt as to whether the child was born dead or alive ought to have known that an ingredient of the offence of child destruction was not established by the prosecution. The Appellant ought to have been discharged and acquitted. He also argued that the purported confessional statement (Exhibit DP) cannot be said to be a confessional statement. Further, he argued that the only evidence of the prosecution is that of Sgt. Hashimu Ibrahim who testified as PW1. Her evidence is that the case was transferred from Sani Abacha “B” Division Mararaba to Divisional Crime Branch by Sgt. Augustine to State CID for investigation. Referring to the statement of Musa Madaki of Angwan Riga Madaki in Mararaba who is said to have reported the alleged offence on 24/2/2015. It was in that Station that the purported Confessional Statement was recorded and that the victim was taken to Mararaba Medical Centre where the baby was certified dead by a Medical Director and also that the corpse was released for burial. However, neither the photograph taken nor any Medical Report wherein the victim was certified dead was tendered. Neither did PW1 who is the only witness called by the prosecution witness the commission of the crime nor visited the allege scene where the said crime was allegedly committed. The complainant and his informant were not called. He submitted that the evidence of DW1 in this circumstance amount to hearsay and not admissible. He urged the Court to expunge it from the evidence.
He further invited the Court to examine all documents and statements attached to the proof of evidence which were not tendered by the prosecution. He urged the Court to exercise its powers and look at the documents in the Court’s file. He argued that an examination of the documents and statement will clearly reveal that as at 5th March, 2015 when the charge and application for leave to prefer a charge were prepared, all the documents and statements accompanying the proof of evidence are dated 24/2/2015. He listed the documents as follows:
(1) Statement of Musa Madaki to the Police made on 24/2/2015.
(2) Statement of Mariam Bilaji made on 24/2/2015.
(3) Medical Report in respect of Mariam Bilali dated 24/2/2015.
(4) Report of Medical practitioner dated 24/2/2015.
(5) Warrant of bury dated 24/2/2015.
(6) Death Report to Coroner dated 24/2/2015.
He submitted that all the foregoing documents were not tendered by the Respondent and therefore there is no evidence linking the Appellant to the commission of the offence and hence Exhibit DP was procured on 6th March, 2015. He urged the Court to hold that the said exhibit is inadmissible and was wrongly relied upon by the trial Court. He also complained about the way Exhibit DP was recorded, which method he said is not as prescribed in Section 15 (4) of the Nasarawa State Administration of Criminal Justice Law, 2019 which prescribes that such statement should be recorded electronically on a retrievable video compact disc or such other audio visual means. Also Section 17 of the said law was not complied with because it was not recorded in the presence of a legal practitioner or an officer of the Legal Aid Council of Nigeria. He argued that the position of Court on the provisions of Section 15(4) and 17(2) of the Administration of Criminal Justice Act, 2015 which is in pari materia with Sections 15(4) and 17(2) of the Nasarawa State Administration of Criminal Justice Law, 2019 are mandatory provisions and that failure to comply with them renders any statement obtained from a suspect impotent and inadmissible. He relied on the cases of NNAJIOFOR V F.R.N. (2019) 2 NWLR (Pt. 1655) 157 at 170 B-F, CHARLES V F.R.N (2018) LPELR – 43922 at pg. 13-15 paras. E-A or (2018) 13 NWLR (Pt. 1635) 50. He urged the Court to hold that the provision of Section 15(4) and 17(2) of ACJA has not been complied with and hence Exhibit DP should be expunged from the record. If this is done, then there is no credible admissible evidence to establish the offence of child destruction for which the Appellant was convicted. It is also his contention that the name of the accused tried as contained in the charge sheet is Maryam Ibrahim but in Exhibit DP it is Mariam Ibrahim. He added that the absence of evidence to show that both name refers to same and one person prevents the Court from relying on Exhibit DP. Further, he contended that it is not the duty of the Court to speculate on the evidence before it. He relied on the case of ESENOWO V UKPONG (1999) 6 NWLR (Pt. 608) 611 at 621 Paras. B-F. According to him, he said it is trite that every doubt in the Respondent’s case must be resolved in favour of the accused person.
Finally, he submitted that every ingredient of an offence as set out in the charge must be proved beyond reasonable doubt and where there is doubt, it must be resolved in favour of the accused person. He contended that it is clear that the conviction of the Appellant for the offence of child destruction punishable under Section 235 of the Penal Code is grossly erroneous as the conviction cannot be justified having regard to the evidence before the Court. He urged the Court to hold that the essential ingredients of the offence for which the Appellant was convicted has not been established. He urged the Court to so hold and set aside the conviction and sentence of the Appellant and in consequence discharge and acquit her.
On behalf of the Respondent, it is submitted that the trial Court has the duty to evaluate the evidence before it and that the procedure of evaluation is prescribed by the Supreme Court in the case of ADAMU & ORS V STATE (1991) LPELR 73 (SC). It is the contention of the Respondent that the trial Court has properly evaluated the evidence in the case at hand before arriving at the judgment. He relied on the case of KWASALBA (NIG) LTD V OKONKWO (1992) 1 NWLR (Pt. 218) pg. 407 at 410. Further, he argued that the confessional statement of the Appellant/Convict is unequivocal, true, straight and have passed the truthfulness test (by going through the process of trial-within trial) and admitted by the Court is beyond all shadow of reasonable doubts to convict the Appellant with the commission of the crime with which she was charged and sentenced. He argued that the Appellant knew very well that she was pregnant and that having given birth to four other children before, she knows the consequences of not calling for help when in labour and that she understands very well the procedure if being in labour which should be in the presence of a midwife or someone who is experience in child birth. But she never did because she has her mindset to kill the child simply because she intended to hide the shame it would cause knowing that the child was born out of wedlock. Let me pause a bit to comment on the foregoing argument of the learned Counsel representing the Respondent. To say a little, I am taken aback. The argument cannot be tied to any law. It can be liking to nothing but a conjecture. It is not a product of any legal mind but a conjecture. I accordingly discountenance and expunge the argument from the record.
On the argument of the learned Counsel representing the Appellant that the child was born dead, he posed the questions “why smash the head of an already dead infant? Why throwing it into the bush as if it was some mere garbage instead of giving it a burial?
He urged the Court to discountenance the argument for been baseless. Further, the Court should hold that the lower Court was correct to have relied on the evidence (both documentary and oral) proffered before convicting and sentencing the Appellant.
On issue of doubt found by the Court in the case of the prosecution. He argued that the learned trial judge was right in convicting the Appellant for the offence of child destruction punishable under Section 235 of the Penal Code. To buttress this, he argued that a mother with a human heart will not smash her purported dead child’s head and throw away such child. The argument of the Appellant, he contended is baseless, and a desperate attempt to mislead the Court. He urged the Court to discountenance the argument. He referred the Court to page 120 of the record. He argued that the Respondent has succeeded in proving the offence against the Appellant.
On whether or not the prosecution can call only one witness to proof its case. He relied on the cases MBANG V STATE (2012) SCM 1031 page 34 Ratio 4, GALADIMA V STATE (2012) 12 SCM 214 at 215 Ratio 1 where it was held that an accused person can be convicted on his extra-judicial statement alone where the judge accepts the truth of the confession.
The prosecution is not expected to call all witnesses to proof its case. He relied on EDEM UDO V STATE (2006) 27 NSCQR 1 at 3 Ration 4, IGBEN V THE STATE (2015) 8 WRN pg. 94 at pg. 105 R. 11.
On the argument of the Appellant on non-compliance with the provisions of Sections 15(4) and 17(2) of the Nasarawa State Administration of Criminal Justice Law, 2019 in that the statement of the Appellant was recorded without the presence of a Counsel. He submitted in opposition that as at when the statement of the Appellant was recorded on 24th February, 2015, the Nasarawa State Administration of Criminal Justice Law was not in force hence it does not apply. He added that a superior officer was present when the said statement was recorded. In respect of the contention of the Appellant on issue of Appellant’s name being differently spelt, he argued that the submission is baseless and also the decided case cited of ESONOWO V UKPONG (supra) is not applicable.
He urged the Court to come to the conclusion that the prosecution has successfully proved the commission of the offence of child destruction against the Appellant and therefore right to pronounce the Appellant guilty. The Court in addition should discountenance with all the submissions of Counsel to the Appellant and dismiss the appeal in its entirety and uphold the judgment of the trial Court.
I have carefully read through the record of appeal and with particular attention to the evidence of the prosecution by his lone witness, and coupled with findings and conclusion of the learned trial judge pronouncing the Appellant not guilty of the offence under Section 221 of the Penal Code law as charged in that the evidence of the prosecution as to whether or not the child was born dead or alive is tainted with doubts, but in the same vein proceeded to find the Appellant guilty, convicted and sentenced based on the same evidence for the offence under Section 235 of the Penal Code Law for child destruction and after considering the argument by respective Counsel for and against, the question which I consider pertinent and which agitates the mind is whether the trial Court was right in finding the Appellant guilty, convicted and sentenced under Section 235 of the Penal Code Law for child destruction based on the same evidence of the prosecution which the learned trial judge had earlier found to be tainted with doubt and leading to the discharge of the Appellant for the offence of culpable homicide punishable with death under Section 221 of the Penal Code Law.
The learned trial judge in his considered judgment has this to say in respect of the charge of culpable homicide punishable with death contrary to Section 220 of the Penal Code and punishable under Section 221 of the same law (see pages 118-12 of the record of Appeal):
“Now in proof of its one count charge against the defendant Maryam Ibrahim. The prosecution called one witness, tendered an exhibit which was admitted in evidence after trial within trial and marked as Exhibit DP and closed its case. In turn, the defendant Maryam Ibrahim testified on her behalf as DW1 and closed her case. Now I took a careful and detailed look at the one count charge preferred against the defendant, an allegation which she denied to the effect that the defendant became pregnant out of wedlock carried the baby to full term and upon birth of the child, a male smashed his head with a block. This making eh charge (sic) of the prosecution against her culpable homicide punishable with death contrary to Section 221 of the Penal Code. This was the evidence in her defence had initially denied (sic) making a voluntary statement to the police. In which she admitted the crime.
The Court conducted a trial within trial and the confessional statement was admitted in evidence.
During cross-examination, the defendant admitted taking a block and smashing the head at her instance son (sic) but submitted that the child was born dead. Before she subsequently mutilated the corpse.
Now the law is trite, that a Court can convict on the confessional admitted statement but with centenary advice, it is desirable to have some other corroborated evidence aside the confessional.
Before a person can be convicted of a crime, it is usually necessary for the prosecution to prove
(a) that a certain event on a certain state of affairs which is forbidden by the criminal law has been caused by the conduct of the defendant
(b) this conduct was accompanied by a prescribed state of mind to wit act is (sic) reus, and mens rea of crime both these elements must be proved beyond reasonable doubt by the prosecution. See IDOWU VS STATE (2007) SC (Pt. 11).
So before a person is liable for culpable homicide, it must be established that he killed a reasonable feature to with a human being.
The law is now also trite that confessional statement of a defendant is admissible in evidence even the Court (sic) is satisfied that it was a voluntary statement and relevant to the proceedings and even if the defendant late (sic) retracted from that voluntary statement. Thus once a confessional statement is proved properly. It is sufficient to sustain a conviction even if it is retracted by the maker as in the instant case. See SHANDE VS STATE (2015) 1 NWLR (Page not provided)
The prosecution would have been wholly successful in proving the offence of culpable homicide against the Defendant but for (sic) which arose during the defendant’s defence, where giving evidence as D.W.1 she claimed that the child, was born dead before she smashed its head with a block even though the prosecution had argued and I agreed (sic) totally why smash or mutilate a dead child however the doubt lingers, with no autopsy produced before me to prove whether or not the child was born dead or alive. I have to resolve the doubt in failure (sic) of the defendant. However, the defendant has confessed to a crime in her confessional statement admitted in evidence as DP to with the willful mutilation of the child.
The issue of when live begins and ends here the (sic) purpose of the law are clearly relevant to homicide. It is not homicide to destroy a baby which is not born a life. Nor to cause it to be still born or to destroy the corpse of a person already deed (sic) from the case of A.G. Reference (No. 3 of 1994) AC 24 (1997) 2 ALLER 936 (sic).
However, the willful destruction of a child being born a life will amount to an offence of child destruction (sic). In the light of the above, I find the defendant Maryam Ibrahim guilty for the offence of child destruction, punishable under Section 235 of the Penal Code la. (sic) And hereby sentence you to 14 years’ imprisonment, having already spend five years in custody. The defendant shall serve a prison terms of 7 years.
3 months right of Appeal to Supreme Court” (sic) Before going further let me pause and purge myself of my observation of the foregoing reproduced portion of the judgment rendered by the learned trial Judge. To say a little, I am astonished, I find it very difficult to comprehend and understand the content of the write up. I say no more.
Be that as it may, my view of the foregoing is that the judge came to the conclusion that the Appellant cannot be found guilty of the offence of culpable homicide punishable with death having found doubts in the evidence of the prosecution and hence resolve the doubt in favour of the Appellant. However, and in a sudden twist and in very few lines found the Appellant guilty, convicted and sentenced for an offence of child destruction contrary to and punishable under Section 235 of the Penal Code. The Appellant was sentenced to jail term of 14 years but to serve 7 years’ jail term having spent 5 years in custody.
Under Section 135 of the Evidence Act, 2011, the standard of proof required in criminal cases is proof beyond reasonable doubt. The meaning and connotation of proof beyond reasonable doubt is that proof beyond all reasonable doubt does not mean or import or connote beyond any degree of certainty. The terms strictly mean that within the bounds of evidence adduced and staring the Court in the face, no Tribunal of justice worth itself would convict on it having regard to the nature of the evidence led and the law marshaled out in the case. It can be said that evidence in a criminal trial that is susceptible to doubt cannot be said to be beyond all reasonable doubt. See AGBO V STATE (2006) 1 SC (Pt. 11) 73 at 104.
In the case of MILLER V MINISTER OF PENSON (1947) 2 ALLER page 372 at 373, Lord Denning said thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. 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 not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice;” was cited with approval. STATE V ONYEUKWU (2004) 7 SC (Pt. 1) 1 at 31-32.
In the course of evaluating the evidence of the prosecution and that of the defence before the Court, the learned trial judge found that there is contradiction in the evidence of the prosecution on the issue as to whether the baby allegedly born by the Appellant was born alive or dead. This created doubt in the mind of the Court. This brought to an end the trial of the Appellant for the offence of culpable homicide punishable with death. However, the learned trial judge swiftly changed the goal post and pronounced the Appellant guilty of the offence of child destruction based on the same evidence before the Court which has been declared to be tainted with doubts. The learned trial judge identified the issue of whether or not the child was born alive or not to have created the doubt. The issue of whether or not a child that is the victim of the offence was born alive is a vital component of the ingredient of the charge of culpable homicide. If the Appellant was accused of terminating the life of the new born baby, then such baby must have been born alive. Same ingredient is applicable to the offence of child destruction. It must be established beyond reasonable doubt that the child that was destroyed must have been born alive before the alleged act of destruction. Therefore, if the Court has come to the conclusion that there is doubt in the evidence of the prosecution on the issue as to whether or not the child was born alive, the same evidence without any other fact or evidence will not suffice to sustain the charge under Section 235 of the Penal Code for child destruction. The evidence that created the doubt which brought to an end the charge under Section 221 of the Penal Code cannot suruptiously become sufficient proof to sustain a conviction under Section 235 of the Penal Code for child destruction having regard to the required ingredients to be proof before an accused could be found guilty. The evidence that has been found wanting and doubtful without any more cannot within the stitch of time be found as sufficient evidence to establish the guilt of the accused (Appellant) for the offence of child destruction.
The law is trite that in criminal trial, where doubt is found in the evidence of the prosecution, the doubt must be resolved in favour of the accused person. See FRN V ABUBAKAR (2019) LPELR – 46533, INYANG EDET V THE STATE (1988) LPELR – 1008 (SC), HAPPY KINGSLEY IDEMUDIA V THE STATE (2015) LPELR – 24835. The effect or consequence of doubts found in the evidence of the prosecution would lead to the discharge of the accused. What I am saying is that whenever doubt is found in the evidence of the prosecution against the accused, the accused should be discharged. See SAMBO ALHAJI GALADIMA V THE STATE (2017) LPELR – 41909, OKONJI V STATE (1987) LPELR – 2479, AFOLAHAN V STATE (2017) LPELR 43825 and KAZEEM ORIYOMI SODIQ V THE STATE (2020) LPELR – 49760. Let me add that were the existence of essential facts which the prosecution relies on is tainted in doubts, the case of the prosecution should fail. See FRIDAY AIGUOREGHIAN & ANOR V THE STATE (2004) LPELR – 270 SC.
In the instant appeal therefore, it is painful to observe that the evidence against the Appellant is manifestly weak due to lack of proper investigation and failure to produce material witness before the trial Court. Not this alone, the learned trial judge erred in law in convicting the Appellant on such evidence tainted with doubts. Other than PW1, the IPO called by the prosecution who is the sole witness and who neither visited the scene of crime to have firsthand information about the alleged act of the accused. Her evidence to a large extent is within the scope of hearsay evidence. In addition to the foregoing, the failure of the prosecution to invite the complainant who first got the information about the alleged crime through one of his subjects manifestly rendered weak the case of the prosecution. In the case of THE STATE V FATAI AZEEZ & ORS (2008) LPELR – 3215 Muhammad JSC has thus to say: –
“The law is well settled that where there is doubt in a criminal trial, such doubt is resolved in favour of the accused person. This Court per Wali JSC, held in the case of CHUKWU V THE STATE (1996) 7 NWLR (Pt. 463) 680 at 701. G-H, as follows:
“Where prosecution’s evidence is found to be contradictory on a material issue, the Court should give the benefit of that doubt to an accused person that stems from the non-credibility of such evidence and discharge and acquit him.”
See ADEBAYO V IGHODALO (1996) 5 NWLR (Pt. 450) 567 at 616, IBEH V STATE (1997) 1 NWLR (pt. 484) 632 at 650, ANEHIA & ANOR V THE STATE (1974) ALL NLR 193, STATE V DANJUMA (1997) 5 SCNJ 126.”
In the light of all the foregoing, I am left with no other option than to come to the conclusion that the learned trial judge was wrong in finding the Appellant guilty, convicted and sentenced under Section 235 of the Penal Code Law. While I answer the question in the negative, I also resolve the sole issue against the Respondent.
In consequence therefore, this appeal is meritorious and in effect allowed.
The judgment of the High Court of Justice Nasarawa State sitting in Lafia in charge no. NSD/LF44C/2015 delivered on the 2nd day of July, 2020 Coram Hon. Justice Aisha B. Aliyu is hereby set aside and the conviction and sentence of the Appellant quashed.
The Appellant should be released from the Correctional Centre forthwith.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA and I am in complete agreement with his reasoning and conclusion. I am also of the opinion that the trial judge somersaulted in his process when he held in one breath that there was doubt in the evidence of the prosecution as to whether Appellant’s baby was born alive so a charge of culpable homicide punishable with was not proved, yet turned around to convict her for destruction of the same child he had found that it was not proved that it was born alive. That is contradictory reasoning which cannot form the basis of any conviction. In the event, I also allow the appeal, set aside that judgment of the lower Court convicting Appellant and in its place, enter a verdict of acquittal for her.
I abide by all other consequential orders contained in the lead judgment.
OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: I have read the advance copy of the lead judgment of his Lordship MUDASHIRU NASIRU ONIYANGI, JCA and I am in agreement with his findings and pronouncements.
I am in agreement with the reasoning that the same ingredient is applicable for the offence of culpable homicide under Section 220 of the Penal Code punishable under Section 221 of the same law and Section 235 of the Penal Code for which the Appellant was convicted by the trial Court. The common ingredient being that the child must be alive at the time either of the offence was committed.
In the instant case, the prosecution failed to establish beyond reasonable doubt that the child was alive at the time he was stoned and thrown away by the Appellant. This lacuna in the evidence creates doubt in the evidence of the prosecution which was rightly resolved in favour of the Appellant.
For this and the fuller reasons espoused by his Lordship in the lead judgment, I associate myself with final decision that the Appellant should be discharged and acquitted.
The appeal is accordingly upheld.
Appearances:
Olasupo Ati-John, Esq., with him, D.M. Tsevende, Esq. For Appellant(s)
E.U Aliyu, Esq., with him, Z.O. Oderanti, Esq. For Respondent(s)
