IGBALA v. STATE
(2022)LCN/16841(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, June 14, 2022
CA/ABJ/CR/537/2020
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
PETER IGBALA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS
Now, in every criminal trial, the burden of proof is on the prosecution to establish the guilt of the accused person. This is so because by Section 36 (5) of the Constitution of the Federal Republic of Nigeria,1999 (as amended): “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”.
By this Constitutional right of an accused person to be presumed innocent, a heavy burden is placed on the prosecution to adduce credible evidence to establish every ingredient of the Offence Charged. Therefore, where the prosecution fail to establish any of the ingredients of the offence charged, the charge has not been proved and the accused person will be entitled to an acquittal. See Sections 131(1) & (2) and 132 of the Evidence Act, 2011. See also Ugboji v. State (2018) 10 NWLR (Pt. 1627) 346; The State v. Ogbonna Egwu (2021) LPELR- 56609 (SC) and Yusuf v. FRN (2018) 8 NWLR (Pt. 1622) 502. See Section 135(2) of the Evidence Act, 2011 which stipulates that:
“The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action”.
In Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183, the Supreme Court, per Galumje, JSC said: “Section 36(5) of the Constitution and Section 135(2) of the Evidence Act, 2011 referred to hereinabove have placed squarely the burden of proof in criminal cases on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts”. PER TSAMMANI, J.CA.
THE POSITION OF LAW ON PROOF BEYOND REASONABLE DOUBTS
As stated above, the standard of proof to be discharged is beyond reasonable doubt. Proof beyond reasonable doubt, it has been held, does not mean proof beyond every shadow of doubt or all doubt. It does not also mean proof to the hilt. It is only a reasonable doubt that will be entertained. It only means proof which can reasonably be arrived at notwithstanding the existence of fanciful possibilities which any reasonable Court or Tribunal called upon to decide on a matter, can dispel with or ignore in the circumstances of the case. See Bakare v. State (1987) LPELR – 242 (SC); Agbo v. State (2006) 6 NWLR (Pt. 977) 545 and Igabele v. State (2006) 6 NWLR (Pt. 975) 100. Thus, in Bakare v. State (supra), the Supreme Court expressed the meaning of the term, “proof beyond reasonable doubt” as follows: “Proof beyond reasonable doubt stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence, of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged Absolute certainty is impossible in any human adventure including the administration of justice”.
It has therefore been held that, if the evidence is strong against the accused person 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 will be said to have been proved beyond reasonable doubt. Generally, therefore, for the prosecution to discharge the burden cast on it beyond reasonable doubt, it must adduce cogent, credible and compelling evidence which proves every essential ingredient of the offence charged. See also Alabi v. State (1999) 7 NWLR (Pt. 301) 511 at 523 and Godwin Chukwuma v. The Federal Republic of Nigeria (2011) 863 (SC). PER TSAMMANI, J.CA.
WAYS THE PROSECUTION CAN PROVE THE OFFENCE OF AN ACCUSED PERSON
The prosecution can succeed in proving the commission of the offence charged by any or some or all of the following ways:
(a) By the evidence of eye witness(es) who directly saw when the offence was committed;
(b) By the confession of the accused person which must be direct, positive, unequivocal and duly proved; and/or
(c) By circumstantial evidence which directly and unequivocally prove that the accused and no other person committed the offence.
Proof of the commission of the offence by any one or a combination of the above-stated ways will suffice, so long as the evidence adduced sufficiently proves all the essential elements of the offence beyond reasonable doubt. See F.R.N v. Alhaji Yahaya Abubakar (2020) LPELR – 52291 (CA) and Kazeem Oseni v. The State (2017) LPELR – 42546 (CA). PER TSAMMANI, J.CA.
THE CRIMINAL OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH
In the instant case, the Appellant was tried and convicted of committing culpable homicide punishable with death, which is an offence contrary to Section 220 and punishable under Section 221 of the Penal Code. Section 220 of the Penal Code stipulates that:
220. Whoever causes death –
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or (c) by doing a rash or negligent act; Commits the offence of culpable homicide. Section 221 of the Penal Code then provides that: 221. Except in the circumstances mentioned in Section 222, culpable homicide shall be punished with death –
(a) if the act by which the death is caused is done with the intention of causing death; or
(b) if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause”.
Now, based on the above provisions of the Penal Code, the Supreme Court (and this Court) have held that to prove culpable homicide punishable with death, the prosecution must prove the following facts beyond reasonable doubt:
(a) that the death of a human being has actually taken place.
(b) that the death was caused by the act or omission of the accused; and
(c) that the act was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.
It should be realised that the above ingredients of the offence must all be proved beyond reasonable doubt. Failure to prove any one of them will lead to the acquittal of the accused. See Adava & Anor. v. State (2006) 9 NWLR (Pt. 984) 152; Kassim v. State (2017) LPELR – 42586 (SC); Galadima v. State (2017) LPELR – 43469 (SC); Paul v. State (2019) LPELR – 47386 (SC) and Abdu v. State (2017) 7 NWLR (Pt. 1564) 171. PER TSAMMANI, J.CA.
WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED PERSON BASED ON A RETRACTED CONFESSIONAL STATEMENT
I note however that, the Appellant retracted or resiled from the said confessional statement (Exhibit “A”). When an accused person denies making a statement to the police which the police has tendered as forming part of its case against the accused, he is said to retract his statement. See State v. Gwangwan (2015) LPELR- 2484 (SC). The law is that, where an accused person has retracted his statement to the police, the Court can still rely on it to convict. However, before the Court can rely on such retracted statement to convict, it must subject such statement to the veracity test in order to determine the truth of such statement. The Court will do that by evaluating the statement together with other pieces of evidence in order to see whether the retracted statement is corroborated by other evidence adduced at the trial. See Ayodele Ikumonihan v. The State (2018) LPELR – 44362 (SC); Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1 and Wahab Alao v. State (2019) LPELR – 47856 (SC). It has been held that in determining the truthfulness and veracity of a confessional statement, the Court has to consider the following questions:
(a) Whether there is anything outside the statement to show that the confession is true?
(b) Whether the facts in the statement are true as far as it can be tested?
(c) Whether the facts in the statement are true as far as it can be tested?
(d) Whether the accused person had the opportunity of committing the offence?
(e) Whether the confession is possible?
(f) Whether the confession is consistent with the other facts ascertained and proved at the trial? PER TSAMMANI, J.CA.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Niger State High Court of Justice, delivered by Mohammed S. A. Mohammed, J on the 12th day of February, 2020 in Charge No: NSHC/SD/CR/1C/2017.
The Appellant herein was arraigned, tried and convicted for the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code. According to the prosecution, the Appellant and the deceased, one Linda, were husband and wife and the marriage was blessed with two children. Before her marriage, the deceased had been living with her mother’s sister at Suleja in Niger State. That after the marriage, the deceased and her husband (Appellant) were living in Oturkpo in Benue State. That there was a serious misunderstanding between the Appellant and the deceased when the Appellant accused the deceased of unholy liaison with another man; and as a result of the disagreement, the deceased took the two children of the marriage and ran to Suleja to live with her mother’s sister with whom she lived before the marriage. That, the Appellant then followed her to Suleja and the PW1 (Linus Akira), husband to the deceased’s Mother’s sister tried to settle the issue and thereupon advised the deceased to go back to her matrimonial home but the deceased was reluctant to.
According to the prosecution, the Appellant spent some days with the deceased in the house of PW1. The PW1 then testified that on the fateful day, he had gone to his duty post at the Nigeria Police Headquarters, Abuja when the Appellant called to inform him that he had killed his wife (deceased). That he then rushed home and met a Police Van with the corpse of the deceased. That the Appellant had disappeared but was arrested about five (5) years after he committed the offence.
The Appellant denied committing the offence for which he was convicted. Though he admitted that the deceased was his wife and that they had some disagreements but denied that he killed his wife. He testified to the effect that, he had a disagreement with his wife (the deceased) and she ran to Suleja. That he followed her the next day where he met her in the house of the PW1. That both of them explained their own side of the disagreement to PW1 and the issue was resolved. That the deceased was then told by PW1 to go back to her matrimonial home, and that he (Appellant) left the deceased and the children at Suleja on the understanding that they were to join him later. That, however, the deceased refused to join him and that he visited her 8 or 10 times but at the end, he was told that his wife (the deceased) had married another man.
At the trial, the prosecution called three (3) witnesses who testified as PW1, PW2, and PW3 respectively. The extra-judicial statement of the Appellant, which was considered to be confessional, was tendered evidence as Exhibit “A”. The Appellant testified in his defence as DW1 but called no other witness. At the close of evidence, learned counsel for the Appellant filed a Written Address but the prosecution did not file any. Upon consideration of both oral and documentary evidence before him, the learned trial Judge convicted the Appellant of the offence of culpable homicide punishable with death. The Appellant is aggrieved with the Judgment and has filed this appeal.
The Notice of Appeal consisting of seven (7) Grounds of Appeal was filed on 08/5/2020. Parties then filed and exchanged Briefs of Arguments. The Appellant’s Brief of Arguments settled by Agent Benjamin Ihua-Maduenyi, Esq was filed on 15/10/2020 but deemed filed on 17/3/2022. The Appellant formulated two (2) issues for determination as follows:
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 culpable homicide punishable with death contrary to Section 221 of the Penal Code.
2. Whether the learned trial Judge was not in error in suo motu raising the issue of the doctrine of “last seen” and resolving it against the Appellant without affording the parties any opportunity to be heard on same.
The Respondent’s Brief of Argument, settled by Umar Halilu; Esq (Assistant Chief State Counsel, Niger State Ministry of Justice) was filed on 18/1/2022 but deemed filed on 17/3/2022. Two issues were raised therein as follows:
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 offences of culpable homicide punishable with death contrary to Section 221 of the Penal Code.
2. Whether the learned trial Judge was not in error in suo motu raising the issue of the doctrine of “last seen” and resolving it against the Appellant without affording the parties an opportunity to be heard on the same totality of legal evidence available before the lower Court, the learned trial Judge was right that the Appellant was guilty of the offences of culpable homicide punishable with death contrary to Section 221 of the Penal Code.
It is apparent, to me, that the issues distilled by the parties are similar in scope and substance. That being so, I shall determine this appeal on the issues formulated by the Appellant. The two issues shall be treated together.
On issue one (1), learned counsel for the Appellant submitted that, in every criminal trial, it is the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt. The case of Adekoya v. State (2012) 9 NWLR (Pt. 1306) 539 at 565 – 566 Paras. G – B was cited in support; and to further submit that, even where the accused person has admitted to the commission of the offence, the prosecution is not relieved of the duty to establish the guilt of the accused person beyond reasonable doubt. The case of Igabele v. State (2006) 6 NWLR (Pt. 975) 100 was also cited in support. The case of Adava v. State (2006) 9 NWLR (Pt. 984) 152 at 167 Paras. G- H was then cited to submit that, in a charge of culpable homicide punishable with death, the prosecution must prove the following facts:
(a) that the death of a human being had actually taken place;
(b) that such death has been caused by the accused; and
(c) that the act was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.
The case of Uwagbo v. State (2007) 6 NWLR (Pt. 1031) 606 was then cited to submit that it is mandatory on the prosecution to prove and establish all the material ingredients of the offence charged beyond reasonable doubt. That failure to prove any one of the ingredients of the offence charged, is fatal to the prosecution’s case.
Learned Counsel for the Appellant went on to submit that, from a holistic examination of the records, the prosecution failed abysmally to establish the first ingredient of culpable homicide punishable with death. In other words, that the prosecution failed to establish that the Appellant’s wife, Linda John had died. That, this fact is evident from the assertion of the Appellant that, he visited his wife 8 to 10 times before he was told that she had married another man. That, the Appellant was categorical that, as at 23/5/2011, his wife was still alive; and that such evidence was neither challenged nor controverted in any way. The cases of Oforlete v. State (2000) 12 NWLR (Pt. 681) 415 at 436 and Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273 at 284 were cited in support. That, in the face of the testimony of the Appellant, the need to prove that the deceased had died, became more imperative. That, even though PW1 testified that he saw a police van on that fateful day at his residence arranging to take away the corpse of the deceased to the mortuary, there was no evidence of what happened to the corpse thereafter. That, there was no evidence that the corpse was identified by anybody nor was there any photograph of the corpse. Furthermore, that there was no death certificate to confirm that Mrs. Linda John had truly died. The case of Ibrahim v. State (1991) 4 NWLR (Pt. 186) 399 was also cited in support.
Learned counsel for the Appellant went on to submit that, in the absence of evidence on the remains of the deceased coupled with the testimony of the Appellant that he visited his wife several times after the date of her alleged death, the evidence on the death of the said Linda John is doubtful. That, in the circumstances, the death of Mrs. Linda John has not been proved beyond reasonable doubt. The cases of Ariche v. State (1993) 6 NWLR (Pt. 303) 752 at 766 Paras. C- D and Ukorah v. State (1977) 4 SC 167 were cited in support. That, though the Supreme Court has decided in several cases, such as Princewill v. State (1994) 6 NWLR (Pt. 353) 703; Jua v. State (2010) 2 SCM 60; Babuga v. State (1996) 7 NWLR (Pt. 460) 279 at 296 Paras. B – C and Ayinde v. State (1972) 4 SC 147, that the absence of the corpse of a deceased person may not prevent the Court from convicting a person for murder or culpable homicide, the Court may convict, only where there is strong, sufficient and compelling evidence which lead to the conclusion that the person has died. That in the instant case, the evidence of death of the deceased is speculative, doubtful and conjectural. The case of The State v. Sunday (2019) LPELR – 46943 (SC) was cited in support.
Learned Counsel for the Appellant went on to submit that, non of the prosecution witnesses gave evidence as to the cause of death of the deceased. That, PW 1 and PW2 were emphatic under cross-examination, that they did not witness what transpired between the Appellant and his wife on that fateful day; and that they did not know how the deceased died. Furthermore, that they did not see the Appellant strangle the deceased. That, the PW3 who investigated the case did not say anything about the remains of the deceased. That, there is no evidence from PW3, that he saw the corpse of Linda John nor did he give evidence of the cause of death.
Learned Counsel for the Appellant also submitted that, the burden on the prosecution is not limited to establishing the cause of death but also proving that it was the act of the Appellant that caused the death of the deceased. The cases of Akinife v. State (1988) 7 SC (Pt.2) 131 at 141 and State v. Ogbubunjo (2011) FWLR (pt. 37) 1097 were cited in support. That in the instant case, there is no evidence that the deceased did not die of natural causes or that her death was not caused by some other persons other than the Appellant. The cases of Ibrahim v. State (1999) 4 NWLR (Pt. 186) 399 and F.R.N. v. Kayode – Beckley (2020) 16 NWLR (Pt. 1750) 219 at 229 were then cited to submit that, those material omissions raised doubts as to the cause of death of the deceased person, which doubts ought to have been resolved in favour of the Appellant.
Learned Counsel for the Appellant also contended that, in view of the absence of evidence of the cause of death, it was speculative for the learned trial Judge to attribute the cause of death to strangulation. The case of Galadima v. State (2013) NWLR (Pt. 1333) 610 at 628 was then cited to further submit on the existence of facts which have not been placed before.
Learned Counsel for the Appellant then contended that, the prosecution had no eye witness in this matter, and therefore relied on circumstantial evidence. That circumstantial evidence is legally receivable evidence which can justify the conviction of an accused person, even for a capital offence; and that such evidence must be such that it points unequivocally, positively and irresistibly to the fact that the offence was committed and that it was the accused that committed it. The cases of Adeniji v. State (2001) 13 NWLR (Pt. 730) 375 at 390 Paras. F – H and Archibong v. State (2006) 14 NWLR (Pt. 1000) 349 at 376 Paras. C – E were cited in support.
Learned Counsel for the Appellant went on to submit that, the learned trial Judge failed to painstakingly consider the several glaring facts and evidence which when considered together, rendered the circumstantial evidence put forward by the prosecution weak, porous, and unreliable. That, if the learned trial Judge had meticulously considered the evidence adduced at the trial, he would have noticed that the circumstances of the case are susceptible to some other interpretation.
It was further submitted by learned counsel for the Appellant that, apart from the circumstantial evidence, the prosecution tendered and relied on the Confessional Statement of the Appellant admitted in evidence as Exhibit “A”. That, counsel for the Appellant had objected to the admissibility of the said statement on the ground that it was not served on the Appellant before the trial.
That though the learned trial Judge had undertaken to resolve the issue of admissibility of the statement in the course of judgment, he did not do so. The case of Damina v. State (1995) 8 NWLR (Pt. 415) 546, was then cited to submit that, the law makes it mandatory for a trial Court, particularly in cases carrying capital punishment, to determine all applications and objections made before it. The case of Ilona v. Dei (1971) 1 All NWLR 8 was then cited to submit that, the failure to determine the admissibility of the extra-judicial statement, the learned trial Judge undermined the Appellant’s right to fair hearing. That in the circumstances, it occasioned a miscarriage of justice to the Appellant.
Learned Counsel for the Appellant went on to submit that, the Appellant had denied making exhibit “A” in that the signature thereon is not his own. That such denial was never contradicted nor controverted or even challenged by way of cross-examination. That, where an accused person denies ownership of a confessional statement or retracts from it, the Court is under duty to subject that statement to a veracity test before placing any probative value on it against the accused. The case of Alarape v. State (2001) 3 NWLR (Pt. 705) 79 at 98 – 99 Pacas. G – B was cited in support. That in the instant case, the learned trial Judge failed to subject the statement to the required veracity test but allowed the prejudicial evidence to be used against the Appellant thereby leading to a miscarriage of justice. The cases of Nwosu v. State (1986) 4 NWLR (Pt. 35) 348 at 359 and Ndidi v. State (2007) 13 NWLR (Pt. 1052) 633 at 657 – 658 Paras. G – B, were then cited to urge us to resolve this issue in favour of the Appellant.
Learned Counsel for the Appellant also observed that, the prosecution did not file any Written Address before the Court below. However, that the Appellant who filed a Written Address did not raise nor canvass any argument on the theory of “last seen” before the trial Court. That, in the circumstances, it was the learned trial Judge that suo motu raised the issue of the doctrine of “last seen”, and proceeded to resolve same against the Appellant without inviting the parties the opportunity to address on it. The case of Sanmi v. State (2019) 13 NWLR (Pt. 1690) 551 was cited in support, and to further submit that by so doing, the learned trial Judge undermined the Appellant’s right to fair hearing as enshrined in Section 36(4) of the 1999 Constitution. The cases of Sanmi v. State (supra); Onemu v. Comm. For Agric & Natural Resources, Asaba (2019) 11 NWLR (Pt. 1682) 1, and Abdulkareem v. Incar Nigeria Ltd. (1984) 15 NSCC 603 at 617 were also cited in support.
Learned Counsel for the Appellant then submitted that, the finding and conclusion of the trial Court that, the Appellant was the last person to be seen with the deceased before she was found dead, is not supported by the evidence before the Court. That, though PW1 and PW2 testified that they left the Appellant and the deceased at home together with their child on that fateful day, the Appellant testified that he left the wife in the house that fateful day. It was then submitted that, it was erroneous and perverse for the learned trial Judge to have shut his eyes to the unchallenged evidence of the Appellant, to conclude that the Appellant was the last person to be seen with the deceased. We were accordingly urged to resolve this issue, also in favour of the Appellant.
In response, learned counsel for the Respondent contended that, to succeed in proving a charge of culpable homicide punishable with death, the prosecution must prove the following facts beyond reasonable doubt:
(i) That death of a human being has taken place;
(ii) That the said death was caused by an act of the accused person; and
(iii) That the act was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.
The case of Dahiru v. State (2018) LPELR – 44497 (SC) was cited in support. The case of Esseyin v. State (2018) LPELR- 44476 (SC) was also cited to submit that, the prosecution is able to prove the offence by either the direct witness account; confessional statement of the accused and/or circumstantial evidence.
Learned Counsel for the Respondent then submitted that, the argument of the Appellant that the prosecution did not prove that the said Linda died is far from the truth. That, the testimony of PW1 narrating how he had settled a disagreement between the Appellant and his deceased wife before he left for work the following morning was not controverted. That, the testimony of PW1 to the effect that, while at work the Appellant called on phone to tell him that he had killed his wife was also not controverted. That, PW1 also testified that, when he rushed home, he met the corpse of the deceased in Police Van in front of his house in the process of being taken away.
Learned Counsel for the Respondent went on to submit that, with the above testimony of PW1, no further proof of the death of the deceased is required. That, the Appellant’s demand of a post-mortem examination on the remains of the deceased is superfluous as no law imposes an obligation on the prosecution to provide other pieces of evidence if they can establish the death by the testimony of eye witness(es) who saw the dead body. Furthermore, that the testimony of the Appellant that his wife is not dead is merely wishful thinking in the face of the testimonies of PW1 and PW2 who were her guardians and in whose house the deceased was killed.
Learned Counsel for the Respondent also contended that, the argument of the Appellant to the effect that the prosecution did not only fail to prove the cause of death but also failed to link the death to the Appellant, is misleading. Learned Counsel for the Respondent made reference to the circumstances that led to the discovery of the deceased’s body in an abandoned toilet. That the Appellant admitted to killing the deceased. That the testimony of PW1 linked the deceased’s death to the Appellant. The case of Amos v. State (2018) LPELR- 44694 was cited in support.
Learned Counsel for the Respondent went on to submit that, from the unrebutted testimonies of PW1 and PW2, the Appellant had a history of using threats and actual violence on the deceased. That, the Appellant admitted such in his testimony in Court; and therefore, the Appellant had the motive and opportunity, when left alone with the deceased to commit the offence. Furthermore, that the Appellant did not present any alternative theory other than the one pointing to the fact that he murdered his wife. That, the evidence of PW3, the Investigating Police Officer, is equally instructive when he told the Court how the Appellant was arrested and the case assigned to him for investigation. That the Appellant also narrated how he ran to Lagos and Port Harcourt after committing the offence and only returned to his house in Benue State after 5 years. That the testimony of the Appellant put a lie to his story that he visited his wife several times within the 5 years he was away.
It was also contended by learned Counsel for the Respondent that, the torrential volume of circumstantial evidence irresistibly lead to the conclusion that the Appellant killed Linda John. That the Appellant confessed to committing the offence in his statement to the police tendered in evidence as Exhibit “A”. It is therefore submitted that, a confessional statement which is unequivocal and is positive is sufficient without more, to ground a conviction for the offence charged. The cases of Achabu v. State (1976) 12 SC 63; Akpan v. State (1986) 3 NWLR (Pt. 27) 258 and Egboghonome v. State (1993) 7 NWLR (Pt. 366) 383 were then cited to submit that, a confessional statement alone is sufficient to support a conviction without corroboration so long as the Court is satisfied of the truth of the confession. That the confession of the Appellant in Exhibit “A” conforms with the law, and is consistent with the testimonies of the prosecution witnesses.
Learned counsel for the Respondent went on to submit that, the offence was indeed reported to the police immediately the corpse was found. That, PW1 testified that, he met the police van in front of his house with the deceased’s corpse in it. That, the Appellant was at large, so investigation could not commence at once. That, from the circumstantial evidence, the deceased was strangulated to death; and that the onus was on the Appellant to show that the deceased died from natural courses. Furthermore, that the prosecution controverted the Appellant’s testimony that he used to visit the deceased, even after the date of her reported death. That, it is even so, when the Appellant stated that he ran away to Lagos and Port Harcourt and only returned to Benue State after five (5) years.
Learned Counsel for the Respondent also contended that, the argument of the Appellant that the confessional statement was not admitted at the trial is misleading. That it is evident from page 75 of the records, that upon objection by defence counsel, the learned trial Judge ruled and admitted the statement in evidence as Exhibit “A”. That the learned trial Judge only added that he would revisit the exhibit at the judgment stage, after finding the objection to be unfounded. That in any case, the Appellant never denied making the statement nor did he allege that it was not voluntarily made. That such statement was duly and properly admitted, and therefore, formed part of the evidence of the prosecution. That, though the Appellant denied making the statement at the trial, the Court could still convict on it, if satisfied of its truth. The case of Alarape v. State (2001) 3 NWLR (Pt. 705) 79 was cited in support. That in the instant case, the Appellant’s statement to the police satisfied that test.
Learned Counsel for the Appellant submitted that, the Appellant told the Court how he had misunderstanding with his wife (deceased) at Oturkpo where they lived, which made her run to Suleja. That he followed her to Suleja. That the deceased used to sneak out into the toilet to answer calls from other men, which angered him. It was then contended that, the testimony of the Appellant in Court is consistent with and corroborates the confessional statement. That, the Appellant had the opportunity to kill the deceased, having been left alone with her in the house. We were then urged to hold that, the Appellant’s confessional statement passed the veracity test.
On the issue whether the learned trial Judge raised the issue of “last seen” suo motu, learned counsel for the Respondent cited the cases of Anyasodor v. State (2018) LPELR – 43720 (SC) and Umar v. State (2018) LPELR- 43719 (SC) to submit that, the “last seen” doctrine proposes that, the person last seen with a deceased person shortly or proximate to the time of death, is presumed to be responsible for the death unless he proffers some explanation that exculpates him. That in the instant case, the Court was right, and without any prompting to invoke that principle. That, the Appellant was not only the last person to be seen with the deceased alive, but there was also history of violence by the Appellant against the deceased. We were accordingly urged to hold that, the learned trial Judge rightly invoked the principle of “last seen” in arriving at a decision.
Now, in every criminal trial, the burden of proof is on the prosecution to establish the guilt of the accused person. This is so because by Section 36 (5) of the Constitution of the Federal Republic of Nigeria,1999 (as amended): “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”.
By this Constitutional right of an accused person to be presumed innocent, a heavy burden is placed on the prosecution to adduce credible evidence to establish every ingredient of the Offence Charged. Therefore, where the prosecution fail to establish any of the ingredients of the offence charged, the charge has not been proved and the accused person will be entitled to an acquittal. See Sections 131(1) & (2) and 132 of the Evidence Act, 2011. See also Ugboji v. State (2018) 10 NWLR (Pt. 1627) 346; The State v. Ogbonna Egwu (2021) LPELR- 56609 (SC) and Yusuf v. FRN (2018) 8 NWLR (Pt. 1622) 502. See Section 135(2) of the Evidence Act, 2011 which stipulates that:
“The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action”.
In Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183, the Supreme Court, per Galumje, JSC said: “Section 36(5) of the Constitution and Section 135(2) of the Evidence Act, 2011 referred to hereinabove have placed squarely the burden of proof in criminal cases on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts”.
As stated above, the standard of proof to be discharged is beyond reasonable doubt. Proof beyond reasonable doubt, it has been held, does not mean proof beyond every shadow of doubt or all doubt. It does not also mean proof to the hilt. It is only a reasonable doubt that will be entertained. It only means proof which can reasonably be arrived at notwithstanding the existence of fanciful possibilities which any reasonable Court or Tribunal called upon to decide on a matter, can dispel with or ignore in the circumstances of the case. See Bakare v. State (1987) LPELR – 242 (SC); Agbo v. State (2006) 6 NWLR (Pt. 977) 545 and Igabele v. State (2006) 6 NWLR (Pt. 975) 100. Thus, in Bakare v. State (supra), the Supreme Court expressed the meaning of the term, “proof beyond reasonable doubt” as follows: “Proof beyond reasonable doubt stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence, of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged Absolute certainty is impossible in any human adventure including the administration of justice”.
It has therefore been held that, if the evidence is strong against the accused person 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 will be said to have been proved beyond reasonable doubt. Generally, therefore, for the prosecution to discharge the burden cast on it beyond reasonable doubt, it must adduce cogent, credible and compelling evidence which proves every essential ingredient of the offence charged. See also Alabi v. State (1999) 7 NWLR (Pt. 301) 511 at 523 and Godwin Chukwuma v. The Federal Republic of Nigeria (2011) 863 (SC).
The prosecution can succeed in proving the commission of the offence charged by any or some or all of the following ways:
(a) By the evidence of eye witness(es) who directly saw when the offence was committed;
(b) By the confession of the accused person which must be direct, positive, unequivocal and duly proved; and/or
(c) By circumstantial evidence which directly and unequivocally prove that the accused and no other person committed the offence.
Proof of the commission of the offence by any one or a combination of the above-stated ways will suffice, so long as the evidence adduced sufficiently proves all the essential elements of the offence beyond reasonable doubt. See F.R.N v. Alhaji Yahaya Abubakar (2020) LPELR – 52291 (CA) and Kazeem Oseni v. The State (2017) LPELR – 42546 (CA).
In the instant case, the Appellant was tried and convicted of committing culpable homicide punishable with death, which is an offence contrary to Section 220 and punishable under Section 221 of the Penal Code. Section 220 of the Penal Code stipulates that:
220. Whoever causes death –
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or (c) by doing a rash or negligent act; Commits the offence of culpable homicide. Section 221 of the Penal Code then provides that: 221. Except in the circumstances mentioned in Section 222, culpable homicide shall be punished with death –
(a) if the act by which the death is caused is done with the intention of causing death; or
(b) if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause”.
Now, based on the above provisions of the Penal Code, the Supreme Court (and this Court) have held that to prove culpable homicide punishable with death, the prosecution must prove the following facts beyond reasonable doubt:
(a) that the death of a human being has actually taken place.
(b) that the death was caused by the act or omission of the accused; and
(c) that the act was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.
It should be realised that the above ingredients of the offence must all be proved beyond reasonable doubt. Failure to prove any one of them will lead to the acquittal of the accused. See Adava & Anor. v. State (2006) 9 NWLR (Pt. 984) 152; Kassim v. State (2017) LPELR – 42586 (SC); Galadima v. State (2017) LPELR – 43469 (SC); Paul v. State (2019) LPELR – 47386 (SC) and Abdu v. State (2017) 7 NWLR (Pt. 1564) 171.
The first duty of the prosecution, therefore, is to adduce cogent and credible evidence to establish beyond reasonable doubt, that the human being stated or mentioned in the charge has died. In the instant case, the Appellant was charged, tried, and convicted for killing his wife, one Mrs. Linda John. The finding of the learned trial Judge was captured in one sentence at page 78 line 13 of the record of appeal as follows:
“From the evidence before me, it is not in doubt that Linda John is dead”.
It is apparent that the learned trial Judge did not state how he came to the conclusion that Linda John was dead. However, I am of the view that, the pointer to that finding can be seen at lines 19 – 25 of the record of appeal where the learned trial Judge stated as follows:
“However, there is evidence before the Court that the accused called PW1, Mr. Linus Akira on the day the deceased died that he (the accused) has killed his wife (late Linda John). Mr. Akira immediately called his wife and informed her. The accused had earlier on brought the little child of the marriage who was with Linda John to Mrs. Akira and informed her that his wife was coming behind. Mrs. Akira did not see Linda until later when her body was discovered inside a toilet in their house”.
It should be remembered that, none of the three witnesses called by the prosecution testified that he was a witness to the killing of the deceased. The PW1 (Linus Akira), a serving Police Officer at the time of the incident, apart from narrating the history of the disagreement between the Appellant and the deceased testified at page 57 lines 8 – 23 of the record of appeal as follows:
“When I was informed about the problem, she said that the accused complain too much about her appearance and relationship with people that feeds her. I advised her to comply with what her husband wants and equally advised the accused. I encouraged them to take solace in God. I advised them to go back but the deceased says she will not go that day. I suggested that the accused should go with the children and the deceased should go later.
Later in the day while I was in my office, at Force Headquarters, Abuja at about 1pm, the accused person called me to say that he has spent a lot of money on his wife and he has killed her. When I wanted to discuss further he turn off the handset. When I got home, I met the police vehicle parked in front of my house with the corpse of the deceased. I inform the elders of the village. The police vehicle took the corpse to the Hospital where she was deposited at the mortuary”.
The PW2, (Mrs. Grace Linus Akira), wife to the PW1, testified that, she knew Linda and that Linda is dead. She then stated at page 59 of the record of appeal that:
“Linda my sister says she will not go along with the accused but on… we advised him to go with the children and directed the deceased to cook food for the accused. Not too long, the accused came to my shop and drop the little child in my shop with N100 and said his wife is on her way to the shop. I left with Lola. Later my husband called me to inform me that the accused called him to inform him that he has killed his wife.
I went home and met the food on fire. I Checked the bedroom, palour, and kitchen but I did not see her and we have to call her and saw her phone at home. When my son came back from school… my son saying when he returned from school and said that he saw Linda inside the toilet. The toilet has not been in use”.
The PW1 then stated under cross-examination as follows:
“On 21/5/2011 when Linda died, my husband and (PW1) went to work and I went to my shop. It was my husband that called me to tell me to go home and find out what happened at home. This was after the accused person has brought the child to me. when my husband called me, I went home and did not see anything.
I did not see the accused strangling the deceased to death”.
What I find intriguing here is that, apart from the bare ipse dixit of PW1 and PW2 that Linda John died, there is no other evidence in support of that assertion. It should be remembered that, the case at hand is one that carries the ultimate punishment, which is death. For that reason, Courts have been enjoined to ensure that the evidence is strong and credible. The evidence of the PW1 is to the effect that, it was the Appellant that called him at about 1.00 p.m to tell him that he (Appellant) had killed the deceased. That when he got home, he saw the police trying to convey the corpse to the mortuary. He did not however, tell the Court who invited the police. He did not also tell the Court whether he accompanied the police (he himself being a police officer) to the hospital so that he could identify the corpse before it is examined and deposited in the mortuary. It is therefore my view that, the testimony of PW1 that Linda John had died is not credible.
The testimony of the PW2 is that, it was her husband (PW1) that called to tell her what the Appellant told him. She stated that when she went home, she checked everywhere but she did not see the deceased. That it was her son who told her that when he returned from school, he saw the deceased inside the toilet. She did not however say that she saw the dead body of the deceased. The son who told her that he saw the deceased inside the toilet was never called to testify.
It should be noted that neither the PW1 nor the PW2 testified that he reported the death of the deceased to the police. Even the PW3, did not say that he saw corpse of the deceased. The PW3 who was the Investigating Police Officer did not say that anyone reported the death of Linda John to the Police on the 23rd day of May, 2011, or any other day. He only told the Court that, it was on 3/4/2016, he was on duty at the Homicide Section, State C. I. D, Minna, Niger State when the Appellant was brought from the Force C. I. D, Abuja, and he was detailed to investigate. That, the offence was alleged to have been committed in 2011, about five years before the case was reported to the State C.I.D. Minna. He did not say that he saw the corpse of the deceased. No police officer testified that the death of Linda John was ever reported to the police, and no autopsy report was tendered to show that the deceased’s corpse was accepted in any hospital. The PW1 who stated that the deceased’s corpse was deposited in the hospital mortuary, did not tell the Court what happened to the corpse thereafter. I am therefore of the view that, the evidence in proof of the death of the deceased is not strong enough. In fact it does not prove the death of the person allegedly killed by the Appellant beyond reasonably doubt.
In the event that my finding above is wrong, I have a duty to see from the evidence adduced at the trial, whether, if the death of the deceased has been proved, there is evidence on record to show that the death of the deceased was caused by the act of the Appellant. In other words, the prosecution have a burden duty to prove that the deceased did not die from natural causes or the act of any other person other than the accused.
I have perused the entire judgment of the trial Court, and I am unable to find where the learned trial Judge made direct finding on that point. Rather, the learned trial Judge resorted to making findings on the principles of “last seen”. Specifically, the learned trial Judge held at page 79 lines 1 – 6 of the record of appeal as follows:
“The law is clear that when anybody was last seen with a deceased person, the burden is on him to explain the cause of death of the deceased or else he would be held responsible for his death and he is in fact presumed to have caused his death until he can prove the contrary. This is against the age-long tradition that the burden is on the prosecution to establish the guilt of the accused person beyond reasonable doubt since he is presumed to be innocent”.
The learned trial Judge then concluded that, the Appellant failed to rebut the presumption cast on him and therefore, the only reasonable inference is that he and nobody else killed the deceased.
Now, the last seen doctrine creates a rebuttable presumption to the effect that, the person last seen with the deceased before his or her death was responsible for his or her death. The doctrine is a development of case law and has no statutory foundation. It is mostly applied in murder/culpable homicide cases where there is no eye witness to the commission of the offence, nor other direct and credible evidence linking the accused to the commission of the offence charged. The “last seen” doctrine, is nothing but a specie of circumstantial evidence. Thus, where there are facts pointing to the commission of the offence of murder, and the only evidence available is circumstantial, the person found to have been together with the deceased, immediately before his or her death, would be presumed to be responsible for the death unless he can provide credible exculpatory evidence. See Olude v. State (2018) LPELR-44070 (SC); Ismail v. The State (2011) LPELR – 9352 (SC); Archibong v. State (2006) 14 NWLR (Pt. 1000) 249; Jua v. The State (2010) 4 NWLR (Pt. 1184) 217 and Olude v. State (2018) 10 NWLR (Pt. 1627) 292. It should be noted that the doctrine only applies where a crime has been committed. Thus, in Mbang v. State (2009) LPELR- 1852 (SC), the Supreme Court, per Oguntade, JSC held that:
“The inference that a person last seen alive with a person later found to have been murdered was the murderer could not be drawn in this very case. It is an inference which may or may not be drawn depending on the ascertained evidence as to the manner the deceased met his death. Where there is undisputed evidence as to how the deceased met his death, the necessity to draw any inference that it was the person last seen with him alive who killed him would be irrelevant and unnecessary”.
In the instant case, there is no credible evidence that the deceased; Linda John died, when she died, and at what time. There is no credible evidence as to who recovered the corpse of the deceased. There is no evidence as to the cause of death as there was no autopsy report. Though the learned trial Judge held that the Appellant killed the deceased by “strangling” her on her neck until she died, none of the witnesses testified that the deceased was strangled. Obviously, the learned trial Judge reached that conclusion based on the statement of the Appellant made to the police (Exhibit “A”). Therein, the Appellant stated that:
“On the fateful day (sic) 23/5/2021 at about 0700 hrs after the uncle and her sister has left home I was provoked and held her on her neck until when she died in my hand before I used a … of her uncle to tied her neck and drew her to the toilet and I left…”
It should be noted that, at the time the said statement was tendered, the Appellant raised an objection to the effect, inter alia that, he was seeing the document for the first time in Court as same was not attached to the proof of evidence. The learned trial Judge did not rule on the objection but admitted it all the same, on the condition that he will revisit the issue of admissibility at judgment stage, but he never did.
All the same, I am of the view that the statement was rightly admitted, as the Appellant did not raise any vitiating factor to the admissibility of the statement by virtue of Section 29(2) of the Evidence Act, 2011.
I note however that, the Appellant retracted or resiled from the said confessional statement (Exhibit “A”). When an accused person denies making a statement to the police which the police has tendered as forming part of its case against the accused, he is said to retract his statement. See State v. Gwangwan (2015) LPELR- 2484 (SC). The law is that, where an accused person has retracted his statement to the police, the Court can still rely on it to convict. However, before the Court can rely on such retracted statement to convict, it must subject such statement to the veracity test in order to determine the truth of such statement. The Court will do that by evaluating the statement together with other pieces of evidence in order to see whether the retracted statement is corroborated by other evidence adduced at the trial. See Ayodele Ikumonihan v. The State (2018) LPELR – 44362 (SC); Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1 and Wahab Alao v. State (2019) LPELR – 47856 (SC). It has been held that in determining the truthfulness and veracity of a confessional statement, the Court has to consider the following questions:
(a) Whether there is anything outside the statement to show that the confession is true?
(b) Whether the facts in the statement are true as far as it can be tested?
(c) Whether the facts in the statement are true as far as it can be tested?
(d) Whether the accused person had the opportunity of committing the offence?
(e) Whether the confession is possible?
(f) Whether the confession is consistent with the other facts ascertained and proved at the trial?
In the instant case, considering the relationship between the Appellant and the deceased, the Appellant had the opportunity of committing the offence; and therefore, the confession is possible. However, there are no other facts outside of the Appellant’s Statement (Exhibit “A”) to show that the confession is true. There is also no other piece of evidence adduced at the trial which corroborates the statement. As found earlier by me in the course of this judgment, the fact of death of the deceased was not proved beyond reasonable doubt. There is also no evidence which established the cause of death which has been ascertained and proved at the trial.
I find it necessary to point out that, this is a criminal trial where the burden of proof of the offence charged vests squarely and throughout the trial on the prosecution. Save for Section 139 of the Evidence Act, 2011, the burden of proof of the guilt of an accused person is on the prosecution. It is only where the prosecution leads such evidence which prima facie establishes the guilt of the accused, that the accused will have the duty to rebut all inculpatory evidence. In the instant case, the prosecution led no such inculpatory evidence and the extra-judicial statement of the Appellant admitted as Exhibit “A” did not pass the veracity test as demanded by law. The learned trial Judge also erred in law, when in the absence of any incriminating evidence against the Appellant, decided suo motu, to apply the doctrine of “last seen” in order to convict the Appellant. Doing that amounted to calling on the Appellant to prove his innocence. The duty was on the prosecution to prove all and not some of the ingredients of the offence. Accordingly, where one of the ingredients of the offence was not proved, reasonable doubt has been created which has to be resolved in favour of the accused. See Tanko v. State (2009) All FWLR (Pt. 450) 1977.
Having held as above, it is my finding that, from the totality of the evidence adduced by the prosecution on record, the prosecution failed to discharge the onus cast on them to prove the guilt of the Appellant beyond reasonable doubt. The learned trial Judge, therefore, erred when he held that the prosecution established the case of culpable homicide punishable with death against the Appellant.
On the whole, therefore, it is obvious that this appeal has merit. It is accordingly allowed. The Appellant is hereby acquitted and is to be discharged. The judgment of the Niger State High Court delivered on the 12th day of February, 2020 in Charge No: NSHC/SD/2C/2019 is hereby set aside. The Appellant is to be released from the custody of the Nigerian Correctional Service.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of reading the lead judgment of my learned brother, Haruna Simon Tsammani, JCA.
I agree with the reasoning and conclusion reached and abide by the orders made therein.
I hereby set aside the judgment of the Niger State High Court delivered on the 12th day of February, 2020 in Charge No: NSHC/SD/2C/2019.
DANLAMI ZAMA SENCHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned Presiding Justice, HARUNA SIMON TSAMMANI (JCA) just delivered, and it substantially captured all the issues I raised during the conference of Justices that heard this Appeal.
I, therefore, agree with the findings and conclusions reached in the lead judgment that this Appeal has merit and it is accordingly allowed. I hereby acquit and discharge the Appellant.
The judgment of the High Court of Niger State in Suit No. NSHC/SD/CR/1C/2017, delivered on the 12th day of February, 2020 by S. A. MOHAMMED, J. convicting and sentencing the Appellant to death is hereby set aside.
Appearances:
A. B. Ihua- Maduenyi, Esq. For Appellant(s)
Umar Halilu, Esq., with him, M. S. Galadima (both Asst. Chief State Counsel, Niger State Ministry of Justice) For Respondent(s)
