ISAH KASSIM v. THE STATE
(2015)LCN/7825(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of March, 2015
CA/K/162/C/2014
RATIO
EVIDENCE: BURDEN AND STANDARD OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROVING THE GUILT OF THE ACCUSED PERSON AND WHAT IS THE STANDARD OF PROOF IN CRIMINAL CASES
It has indeed become settled by virtue of the relevant provisions of our law that the burden is always on the prosecution to proof the guilt of an accused person. This burden rests squarely on the prosecution by the presumption of innocence guaranteed to an accused person under Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and does not shift except in the recognized instances. Also the standard of proof cast on the prosecution by section 135 (1) of Evidence Act, 2011 is beyond reasonable doubt. That sub-section provides that: “If the commission of a crime by a party to any proceedings is directly in issue in any proceedings Civil or Criminal, it must be proved beyond reasonable doubt”.
It is thus generally the law that the burden of proving that a person is guilty of the commission of a crime is on the prosecution, and to discharge this burden, the prosecution must proof the guilt beyond reasonable doubt. See UDOSEN V. THE STATE (2007) 4 NWLR (Pt. 1023) 125; THE STATE v. AZEEZ & ORS (2008) 4 SC 188; IGABELE v. STATE (2006) 6 NWLR (Pt. 975) 100; JUA V. STATE (2010) 4 NWLR (Pt. 1184) 217; OKORO V. THE STATE (1988) 12 SC (Pt.11) 88; BAKARE V. THE STATE (1987) 3 SC 1. per. ISAIAH OLUFEMI AKEJU, J.C.A.
EVIDENCE: PROVING AND OFFENCE; WAYS AN OFFENCE MAY BE PROVED
It is the law that the commission of an offence by accused person may be proved by all or any of the following means; (1) by the confession of the accused; (2) by evidence of an eye witness, and (3) by circumstantial evidence. See HARUNA V. ATT. GEN. FED. (2012) 9 NWLR (Pt. 1306) 419; ADEKOYA V. STATE (2012) 9 NWLR (Pt. 1306) 539. per. ISAIAH OLUFEMI AKEJU, J.C.A.
EVIDENCE: DOCUMENTARY EVIDENCE; THE PRINCIPLE THAT AN OBJECT TO THE ADMISSIBILITY OF THE DOCUMENT SOUGHT BY A PARTY TO PUT IN EVIDENCE IS TAKEN WHEN THE DOCUMENT IS OFFERED IN EVIDENCE
The law is clear that an objection to the admissibility of a document is taken when the document is sought to be tendered. In the judgment of this Court in HON. GODWIN UDO KING V. INEC & ORS. (2008) PLELR 4403 (CA), JEAN OMOKRI JCA (OF BLESSED MEMORY) stated the position as follows:
“It is also instructive to note that the appellant who was present at the Tribunal did not even object to the admissibility of exhibits R1 and R2 when they were tendered by RW1, Eme Bassey Eyo at page 382 – 383 of the record. So what is appellant complaining about. The current and correct state of the law was robustly settled in EZOMO V. NNB PLC (2006) 14 NWLR (Pt. 1000) 442 at 651 – 658, where it was held that; “It is a cardinal rule of evidence and practice in civil and criminal cases that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence.”
Indeed the contention of the appellant at this stage is that these documents which are in their original form require certification as a condition before they could be admitted in evidence. In ARINZE V. FIRST BANK (NIG.) LTD. (2000) 1 NWLR (Pt. 639) 78; OLAGUNJU JCA said In any case the law is that where a document is not inadmissible per se but its admissibility is subject to the conditions that had not been fulfilled when it was tendered its admission in evidence without objection constitutes a waiver of the unfulfilled condition, SeeNOKEKE V. OBIDIFE (1965) 7 ALL NLR 50, 53 – 5…; ANYAEBOSI V. R.T. BRISCO (NIGERIA) LTD. (1987) 3 NWLR (Pt 59) 84; (1987) 6 SCNJ 9, 32 – 33; . OGUMA ASSOCIATED COMPANIES (NIGERIA) LTD V. INTERNATIONAL BANK FOR WEST AFRICA LTD(1988) 1 NWLR (Pt 73) 658; (1988) 3 SCNJ (Pt I) 13, 22 – 23; and ATTORNEY GENERAL OF OYO STATE V. FAIR LAKES HOTEL LTD. (1989) 5 NWLR (Pt 121) 255; (1999) 12 SCNJ 11″. per. ISAIAH OLUFEMI AKEJU, J.C.A.
EVIDENCE: DOCUMENTARY EVIDENCE; THE CLASSIFICATION OF DOCUMENTS ACCORDING TO THE EVIDENCE ACT AND THE ADMISSIBILITY OF SECONDARY EVIDENCE
Documents are under Sections 102 and 103 of the same Evidence Act 2011 classified further into Public and Private documents. Public documents by Section 102 are,
(a) Documents forming the official acts or records of the official acts of
(i) the sovereign authority
(ii) official bodies and Tribunals; or
(iii) public officers legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) Public records kept in Nigeria of private documents. By Section 103, all documents other than public documents are private documents.
On the admissibility of secondary evidence, a distinction is drawn under Section 90 (1) of the Act between public and private documents whereby in the matter of public documents it is provided in 90 (1) (c) that what is receivable as secondary evidence is a certified copy of the document, but no other secondary evidence is admissible.
Thus by the combination of Sections 86, 87, 88, 89, 90, 102 and 103 of the Evidence Act, 2011 documents (public or private) may be produced in Court by tendering either the original of the document itself or the copy thereof known as secondary evidence but a party relying on secondary evidence of a public document must produce the certified true copy and no other copy thereof is admissible. See KWARA STATE MINISTRY OF AGRICULTURE AND WATER RESOURCES & ORS. V. SOCIETE GENERALE BANK NIG. LTD. (1998) 11 NWLR (Pt. 575) 574; DAGGASH V. BULAMA (2004) 14 NWLR (Pt. 892) 144; P.D.P. V. INEC (2014) 17 NWLR (Pt. 1437) 525. per. ISAIAH OLUFEMI AKEJU, J.C.A.
CRIMINAL LAW: CULPABLE HOMICIDE; THE INGREDIENTS OF THE CHARGE OF CULPABLE HOMICIDE PUNISHABLE UNDER THE PENAL CODE
The ingredients of the charge of culpable homicide punishable under Section 221 (b) of the Penal Code as well stated by the learned trial judge on page 45 of the record of appeal are;
(1) That there has been death of a person
(2) That the death was as a result of the act of the accused, and
(3) That the act was done with the intention of causing death or the intention of causing such injury that death would be the probable result. See UBANI V. THE STATE (2003) 16 NSCQR 265; IGAGO V. THE STATE (1999) 14 NWLR (Pt.637) 1; EDOHO V. THE STATE (2010) 14 NWLR (Pt. 1214) 651 OGBU & ANOR V. THE STATE (2007) 4 SCM 169; (2007) 3 SC (Pt. 11) 273; STATE v. DANJUMA (1997) 5 NWLR (Pt. 506) 512. per. ISAIAH OLUFEMI AKEJU, J.C.A.
Justice
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
ISAH KASSIM Appellant(s)
AND
THE STATE Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): The appellant was the accused person in charge No. K/19c./2012 at the Kano Judicial division of the High Court of Kano State. In the one count charge dated 15th February, 2012, the appellant was alleged of committing the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code (cap. 105) Laws of Kano State 1991 in that on or about 15/1/2009 at about 1600 hrs., at hotoro quarters, Kano he stabbed one Akaraja Musbahu with a knife in his back till he died with the knowledge that death would be the probable consequence of his act.
The appellant pleaded not guilty to the charge whereupon the prosecution called four witnesses as PW1 – PW4 and the appellant gave evidence in defence of the charge without calling any additional witness.
In the considered judgment of the High Court of Kano State delivered by Hon. Justice Wada Abubakar Omar on 19th November, 2013, the appellant was found guilty of the offence as charged, convicted and sentenced to death by hanging. The learned judge however took cognizance of the age of the appellant among
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other circumstances and recommended him for mercy by the Governor of Kano State.
Not satisfied with the judgment of the High Court of Kano State (hereinafter called the trial Court), the appellant filed a Notice of Appeal with two grounds of appeal, in commencement of his appeal to this Court.
The evidence of the prosecution witnesses 1 and 2 is that on 15/1/2009 at about 4:20pm to 4:30pm there was a quarrel between the appellant and one Akaraja Musbahu who the appellant had tried to prevent from fetching water at a water tap in a house at hotoro, Kano where both of them were working. The quarrel resulted in a fight and in the course of which the appellant stabbed Akaraja Musbahu with a knife at his back, he was taken to hospital where he died later that day while the appellant was taken to the Police Station and thereafter to the State Criminal Investigation Department of the Police in Kano. The PW3 tendered the medical Report of the death of Akaraja Musbahu, as well as the first extrajudicial statement of the appellant, while PW4 tendered the 2nd extrajudicial statement all of which were admitted as exhibits 1, 2 and 3 respectively without
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objection from the appellant or his learned Counsel at the trial.
Before this Court, Briefs of Argument were filed and exchanged by the parties to the appeal which were respectively adopted and relied upon at the hearing of the appeal.
In the Appellant’s Brief of Argument settled by Wilson O. Diriwari Esq., who also adopted same at the hearing of the appeal, the lone issue formulated for determination is; whether in the absence of cogent and compelling evidence by the Respondent to establish the guilt of the Appellant, the learned trial judge was right to convict the Appellant for the offence charged. This lone issue was adopted in the Respondent’s Brief of Argument settled by Sanusi Aliyu Esq., Deputy Director Citizen Rights, Ministry of Justice, Kano State who adopted the Brief at the hearing of the appeal.
This appeal will be considered and determined on the basis of this issue formulated and adopted by the parties.
In his argument of the issue, the Appellant’s learned Counsel submitted that the Respondent failed to adduce sufficient evidence to establish the alleged offence and to warrant the conviction of the appellant. It was
3submitted that exhibit 1, being medical report from a government hospital and exhibits 2 and 3 being documents from Nigeria Police are public documents within Sections 102, 104 and 105 of Evidence Act 2011 for the purpose of being used in Court. It was argued that being public documents contemplated under Section 102 (a) (iii) Evidence Act, 2011 the exhibits are admissible as secondary evidence and therefore only certified true copies thereof are admissible by virtue of Sections 104 (1)-
(3) and 105 of the Evidence Act, 2011.
The learned Counsel placed reliance on the Supreme Court decision in the case of TABIK INVEST. LTD. VS. GTB PLC (2011) 17 NWLR (Pt. 1276) 240 at 261 – 262. PER RHODES-VIVOUR JSC that a Police Officer is a Public Officer and that all documents emanating from the Nigeria Police especially as documents to be used in Court are public documents only certified true copies of which are admissible in evidence.
It was therefore submitted that exhibits 1, 2 and 3 being public documents are inadmissible having not been certified by the appropriate officer. They were therefore wrongly admitted in evidence by the learned trial judge
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even when no objection was raised to the admissibility of the documents.
It was submitted that the appellate Court has inherent powers to reject and expunge any inadmissible evidence that was wrongly admitted by the trial Court without objection, citing the cases of PHILIPS VS. E.O. & IND. CO. LTD. (2013) 1 NWLR (Pt. 1336) 618; ABOLADE AGBOOLA ALADE VS. SALAWA JAGUN OLUKADE (1976) 2 SC 183.
It was the submission of the appellant’s learned Counsel on page 4 paragraph 4.9 of the Brief of Argument that “the law is trite that the only form of evidence to prove public documents (such as Exhibits 1, 2 and 3 in the instant case) is certified true copy and no other type” citing the case of ARAKA VS. EGBUE (2003) 17 NWLR (Pt. 848) 1 as authority for that submission.
Based on this contention that exhibits 1, 2 and 3 were inadmissible but wrongly admitted not being certified true copies, we were urged to reject the documents, resolve this issue in favour of the appellant and consequently set aside his conviction and sentence since there is no evidence that links the appellant with the offence of culpable homicide. The case of OCHIBA VS. STATE (2011)
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17 NWLR (Pt. 1277) 663 was relied upon.
It was submitted that the prosecution failed to establish the guilt of the appellant beyond reasonable doubt and failed to discharge the burden of proof placed upon it by law.
For the ingredients of offence of murder, the learned Counsel referred to the decision in MAIYAKI V. STATE (2008) 15 NWLR (Pt.1109) 173 that to secure conviction, the prosecution must establish that;
(1) The deceased had died
(2) The death of the deceased resulted from the act of the accused, and
(3) The act of the accused which led to the death of the deceased was done intentionally with knowledge that death or grievous bodily harm was the probable consequence of the act.
It was submitted that the result of the failure by the prosecution to prove the guilt of the appellant beyond reasonable doubt is the discharge and acquittal of the appellant; ALMU v. STATE (2009) 10 NWLR (Pt.1148) 31.
We were urged to uphold the submission of the appellant and set aside his conviction and sentence for want of credible, vital and relevant evidence from the prosecution to the trial Court.
In response to the foregoing
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argument and submission by the appellant’s Counsel, the respondent submitted that the case against the appellant was proved beyond reasonable doubt by the respondent when it has proved all the ingredients of the offence under Section 221 (b) of the Penal Code Law which are; that the death of a human being took place, and the death was caused by the accused person which act was done with intention of causing death or causing bodily injury, and the accused knew or had reason to know that death would be the probable consequence of his act or of any bodily injury the act was intended to cause.
It was contended that the prosecution adduced direct and positive evidence including the appellant’s confessional statement in support of the proof of all the above ingredients beyond reasonable doubt; GARBA V. THE STATE (2000) 4 SC 157.
Contrary to the argument by the learned Counsel for the appellant on the inadmissibility of exhibits 1, 2 and 3 as public documents that required to be certified, and so were wrongly admitted, the respondent’s Counsel argued that those documents are not public documents under Section 102 (a) (b) of Evidence Act 2011.
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It was submitted that for a document to be classified as public document, two conditions must co-exist, namely that it must be available for inspection and it must have been made for that purpose; ADEKOLA V. AILARA (2011) ALL FWLR (Pt.572) 1696; UKANA V. C.O.P. (1995) 8 NWLR (Pt.416) 206; STATE v. MBAGWU (1972) 2 ESCLR 462. The learned Counsel contended that exhibits 1, 2 and 3 in this case were from the Police diary and not meant to be inspected by the public as the public has no access to that diary. It was submitted that exhibits 1, 2 and 3 are original documents that require no certification before they can be tendered in evidence. It was submitted that the essence of certification of a copy of a public document is to give an impression of authenticity and accuracy with the original thereof; the cases of BILIKISU TINUOLA GAMBARI V. INEC (2011) LPELR 950; G & T. INVESTMENT LTD. V. WITT & BUSH LTD. (2011) 8 NWLR (Pt. 1250) 500, were relied upon to argue that the issue of certified true copy can only arise where the document sought to be tendered is a photocopy or any other copy of the original document.
The learned Counsel submitted that exhibits
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1, 2 and 3 were tendered and admitted without any objection from the appellant, and even if they are public documents requiring certification, they become documents admissible under certain conditions and not totally inadmissible, and as such there being no objection to their admissibility, it was within the competence of the trial Court to act on them and the Court of Appeal will not entertain any complaint on their admissibility; GOODWILL & TRUST INV. LTD. V. WITT & BUSH LTD. (2011) VOL. 3 & 4 MJSC 21.
It was submitted on the authority of CHIEF BRUNO ETIM v. CHIEF OKON UDO EKPE & ANOR. (1983) 1 SCNLR 120 that an objection to admissibility of a document sought to be tendered is taken when the document is offered in evidence. It was also submitted on the authority of ALADE V. OLUKADE (1976) SC 183 that a party who has failed to object to the admissibility of a document at trial can no longer challenge same on appeal.
According to learned Counsel the decision in TOBIK INVEST. LTD. V. GTB PLC. (2011) 17 NWLR (Pt. 1276) 240 does not refer to the document contained in the case diary which is subject of investigation. Reference was
9
made to Section 126 (1) (2) (3) and (4) of the Criminal Procedure Code.
It was submitted that being original documents exhibits 1, 2 and 3 are admissible pursuant to Section 83 of Evidence Act, 2011 and they were rightly admitted at the trial Court.
On the proof of the case beyond reasonable doubt, the respondent contended that the test is to examine the evidence adduced by the prosecution in support of the ingredients of the alleged offence.
The ingredients of the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code, learned Counsel contended, are that the death of a human being has taken place and was caused by the accused whose act was done with the intention of causing death, or such bodily injury and the accused knew or had reason to know that death would be the probable consequence of the bodily injury the act was intended to cause.
It was contended that all these ingredients have been proved by direct and positive evidence of prosecution witnesses as well as the confessional statement of the appellant that was not objected to at the trial; GARBA V. THE STATE (2000) 4 SC 57.
It was submitted that
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the prosecution is expected to proof the case beyond reasonable doubt or on a high degree of probability, and not to proof beyond the shadow of doubt; GUFWAT V. STATE (1994) 2 NWLR (Pt. 327) 435. It was further submitted that the prosecution proved all the ingredients of the offence while the appellant did not bring himself within any of exceptions under the law; OTEKI V. A.G. BENDEL STATE (1986) 2 NWLR (Pt.24) 648. It was contended that apart from the documents tendered as exhibits 1, 2 and 3, the trial Court also believed the evidence of the PW1 as well as the admission by the appellant that he stabbed the deceased with a knife and this led to the death of the deceased. The appellate Court is to rely on the record in determining the strength of appellant’s case in the matter of proof of the case, and not arguments in the brief no matter how dexterous they may be; NABATURE V. MAHUTA (1992) 9 NWLR (Pt. 263) 85.
We were urged to dismiss the appeal and uphold the decision of the trial Court.
Having gone through the Briefs of Argument in this appeal it is clear that the contention of the appellant’s learned Counsel is that the prosecution (now
11
respondent) failed to adduce evidence at the trial that was cogent, sufficient and compelling enough to warrant the appellant’s conviction by the learned trial judge. In other words that the charge of culpable homicide punishable with death under Section 221 (b) of Penal Code (Cap 105) Laws of Kano State 1991 was not proved against the appellant as required by law.
It has indeed become settled by virtue of the relevant provisions of our law that the burden is always on the prosecution to proof the guilt of an accused person. This burden rests squarely on the prosecution by the presumption of innocence guaranteed to an accused person under Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and does not shift except in the recognized instances. Also the standard of proof cast on the prosecution by section 135 (1) of Evidence Act, 2011 is beyond reasonable doubt. That sub-section provides that:
“If the commission of a crime by a party to any proceedings is directly in issue in any proceedings Civil or Criminal, it must be proved beyond reasonable doubt”.
It is thus generally the law that the burden of proving
12
that a person is guilty of the commission of a crime is on the prosecution, and to discharge this burden, the prosecution must proof the guilt beyond reasonable doubt. See UDOSEN V. THE STATE (2007) 4 NWLR (Pt. 1023) 125; THE STATE v. AZEEZ & ORS (2008) 4 SC 188; IGABELE v. STATE (2006) 6 NWLR (Pt. 975) 100; JUA V. STATE (2010) 4 NWLR (Pt. 1184) 217; OKORO V. THE STATE (1988) 12 SC (Pt.11) 88; BAKARE V. THE STATE (1987) 3 SC 1.
At the trial Court in the instant case, the prosecution called 4 witnesses to establish the charge against the appellant consequent upon his plea of not guilty, while the appellant as the accused person testified in his own defence but called no other witness.
The first prosecution witness, (PW1) Yunusa Mohd Surajo on pages 11 – 12 of the record of appeal testified that on 15/1/2009 at about 4:20 to 4:30pm, he saw the (accused) appellant quarrelling with Akaraja Musbahu over fetching of water from a water tap, and he saw the appellant stabbing this Akaraja Musbahu with his knife around the upper part of the shoulder at his back in the course of the resultant fight. The appellant was taken to Police while Akaraja Musbahu
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was taken to the hospital.
The PW2, Sabo Bello’s testimony on pages 13 – 15 of the record is to the effect that he knew Akaraja Musbahu, but he is now deceased, he attended the burial ceremony. He said he drove the appellant to the Police Station, Tsamigyan Boka Division, Hotoro while Akaraja Musbahu was taken to Abdullahi Wase Hospital Nassarawa where he was admitted but he died before he could be treated with drugs.
The PW3, Kabiru Ibrahim, a Police Sergent working with State Intelligence Bureau of Nigeria Police Force confirmed that a case of causing grievous hurt was reported against the appellant that he used knife to stab the deceased at the back, the medical officer who attended to the deceased later informed him (PW3) that the deceased died, and he, PW3 later obtained a medical report from the hospital issued by one Dr. Joseph Ikreke who was said to have travelled abroad. He also obtained statement from the appellant which was signed by appellant and counter-signed by a Superior Police Officer, Umar Gambo, a DSP now retired. PW3 tendered the medical report as exhibit 1 without objection and the statement of the appellant as exhibit 2 also
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without objection.
The PW4 was inspector Musa Abdullahi of State C.I.D. Kano, who tendered the statement of the appellant made at the C.I.D. which was admitted without objection as exhibit 3.
The appellant himself as the DW1 on pages 25 – 28 of the record stated that on 15/1/2009 there was a misunderstanding between Akaraja and himself when Akaraja came to fetch water at Yahaya’s house where he was the watchman. The quarrel later resulted to a fight. The appellant said (page 26) “I tried to free myself from Akaraja but failed, I remembered I had a knife with me. I brought out the knife and showed it to Akaraja… I stabbed him with the knife at his back”. Under cross examination (page 27) the appellant said “when we were fighting I did not lost (sic) my senses … I stab Akaraja at the back so that he would not die”.
In his brief address after the evidence of the witnesses, I.S. Abdullahi learned Counsel who defended the appellant said at page 28 of the record;
“I have put a defence based on the rules of professional conduct under Section 37 (1) thereof which enjoins me to present to the Court the true fact of the matter as they are
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therefore, I have performed my obligation to the accused and the Court. That is all”.
He found nothing to urge in favour of the appellant.
Consequently the prosecuting Counsel did not file any address or reply on point(s) of law.
In the judgment of the trial Court, the learned judge identified the issues for determination as:
1. Whether the prosecution has successfully proved the offence of culpable homicide punishable under Section 221 (b) of the Penal Code against the accused.
2. Whether any defence was available to the accused in the light of the circumstances of the case.
The two issues were resolved in favour of the prosecution before the trial Court returned a verdict of guilt against the appellant.
From the foregoing, there was before the learned trial judge the oral testimony of eye witness to the stabbing of Akaraja Musbahu (the deceased) by the appellant with a knife and that he was taken to hospital where he died as well as the two confessional statements of the appellant and the medical evidence of cause of death. There was before the Court the oral admission of the appellant before the Court that he stabbed the
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deceased at the back with his own knife and he (deceased) was taken to hospital.
It is the law that the commission of an offence by accused person may be proved by all or any of the following means; (1) by the confession of the accused; (2) by evidence of an eye witness, and (3) by circumstantial evidence. See HARUNA V. ATT. GEN. FED. (2012) 9 NWLR (Pt. 1306) 419; ADEKOYA V. STATE (2012) 9 NWLR (Pt. 1306) 539.
The first aspect of the argument of the appellant’s Counsel is on the admissibility of exhibits 1, 2 and 3 i.e. the medical Report and the two statements of the appellant, to the Police all of which as correctly stated by the respondent were original documents admitted without objection from the appellant or the learned Counsel who appeared for him, the implication of which is that they consented to the admissibility of the documents. The law is clear that an objection to the admissibility of a document is taken when the document is sought to be tendered. In the judgment of this Court in HON. GODWIN UDO KING V. INEC & ORS. (2008) PLELR 4403 (CA), JEAN OMOKRI JCA (OF BLESSED MEMORY) stated the position as follows:
“It is also
17
instructive to note that the appellant who was present at the Tribunal did not even object to the admissibility of exhibits R1 and R2 when they were tendered by RW1, Eme Bassey Eyo at page 382 – 383 of the record. So what is appellant complaining about. The current and correct state of the law was robustly settled in EZOMO V. NNB PLC (2006) 14 NWLR (Pt. 1000) 442 at 651 – 658, where it was held that; “It is a cardinal rule of evidence and practice in civil and criminal cases that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence.”
Indeed the contention of the appellant at this stage is that these documents which are in their original form require certification as a condition before they could be admitted in evidence. In ARINZE V. FIRST BANK (NIG.) LTD. (2000) 1 NWLR (Pt. 639) 78; OLAGUNJU JCA said In any case the law is that where a document is not inadmissible per se but its admissibility is subject to the conditions that had not been fulfilled when it was tendered its admission in evidence without objection constitutes a waiver of the unfulfilled condition, See
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OKEKE V. OBIDIFE (1965) 7 ALL NLR 50, 53 – 5…; ANYAEBOSI V. R.T. BRISCO (NIGERIA) LTD. (1987) 3 NWLR (Pt 59) 84; (1987) 6 SCNJ 9, 32 – 33; . OGUMA ASSOCIATED COMPANIES (NIGERIA) LTD V. INTERNATIONAL BANK FOR WEST AFRICA LTD(1988) 1 NWLR (Pt 73) 658; (1988) 3 SCNJ (Pt I) 13, 22 – 23; and ATTORNEY GENERAL OF OYO STATE V. FAIR LAKES HOTEL LTD. (1989) 5 NWLR (Pt 121) 255; (1999) 12 SCNJ 11″.
The situation in which the Court of Appeal will entertain a complaint on admissibility of documentary evidence by a trial Court even without objection is where the document was unlawfully received in evidence at the trial or the document is by law inadmissible in any Court and in all circumstances. See the Supreme Court case of OSHO V. APE (1998) 8 NWLR (Pt. 562) 492; (1998) 6 SC 121.
To buttress his argument that exhibits 1, 2 and 3 are inadmissible bur wrongly admitted, the learned Counsel for the appellant has placed reliance on the case of TABIK INVEST. LTD. v. GTB Plc (2011) 17 NWLR (Pt. 1276) 240. A clear understanding of that case which is also reported in (2011) Vol. 6 (Pt. 1) MJSC 1 shows that although the Supreme Court held that documents emanating from
19
the Police are public documents, the core issue in the case was the admissibility or otherwise of documents requiring certification under Section 111 of Evidence Act, but for which payment was not made for the certification. With respect, I do not see that case as supporting the argument of learned Counsel against the admissibility of original documents even when they are public documents, or that such original documents require certification.
The principles relating to reception of evidence in our Courts are guided by the Evidence Act, which is currently the Act of 2011 and specifically in relation to proof of contents of documents, Section 85 of that Act provides that, the contents of documents may be proved either by primary or by secondary evidence. Indeed by section 88 of the Act, documents are to be proved by primary evidence except in the cases mentioned therein which are enumerated in Section 89 and in which circumstances secondary evidence may be given of the existence, condition and content of a document. While primary evidence according to Section 86 means the document itself produced for inspection of the Court, secondary evidence, according
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to Section 87 means a copy thereof or oral accounts of the contents of a document given by person who has himself seen the document.
Documents are under Sections 102 and 103 of the same Evidence Act 2011 classified further into Public and Private documents. Public documents by Section 102 are,
(a) Documents forming the official acts or records of the official acts of
(i) the sovereign authority
(ii) official bodies and Tribunals; or
(iii) public officers legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) Public records kept in Nigeria of private documents.
By Section 103, all documents other than public documents are private documents.
On the admissibility of secondary evidence, a distinction is drawn under Section 90 (1) of the Act between public and private documents whereby in the matter of public documents it is provided in 90 (1) (c) that what is receivable as secondary evidence is a certified copy of the document, but no other secondary evidence is admissible.
Thus by the combination of Sections 86, 87, 88, 89, 90, 102 and 103 of the Evidence Act, 2011 documents (public or
21
private) may be produced in Court by tendering either the original of the document itself or the copy thereof known as secondary evidence but a party relying on secondary evidence of a public document must produce the certified true copy and no other copy thereof is admissible. See KWARA STATE MINISTRY OF AGRICULTURE AND WATER RESOURCES & ORS. V. SOCIETE GENERALE BANK NIG. LTD. (1998) 11 NWLR (Pt. 575) 574; DAGGASH V. BULAMA (2004) 14 NWLR (Pt. 892) 144; P.D.P. V. INEC (2014) 17 NWLR (Pt. 1437) 525.
In my candid view based on the foregoing statutory and judicial authorities, exhibits 1, 2 and 3 are admissible documents and they were rightly admitted by the trial Court. There is no basis for their rejection or being expunged by this Court.
On the further argument of the learned Counsel for the appellant on the proof of the case, it is quite settled as submitted by the respondent’s Counsel that the prosecution will secure conviction where the ingredients of the alleged offence have been proved beyond reasonable doubt. See ALABI V. STATE (1993) 7 NWLR (Pt. 307) 511. The correct legal position is that proof beyond reasonable doubt does not mean
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proof to the hilt or proof beyond all shadows of doubt. See MILLER V. MINISTER OF PENSIONS (1947) 3 ALL ER 373; AGBO V. STATE (2006) 6 NWLR (Pt.977) 545.The prosecution is required to prove the ingredients of the offence beyond reasonable doubt.
It is pertinent to state here that the evidence on record is that following the stabbing with knife by the appellant, the deceased died at the hospital shortly after admission and even before the prescribed drugs could be administered. In other words that there was no intervening act, and in such circumstance, a postmortem or medical report is not an absolute requirement or necessity though it may be desirable. See BAKARE V. THE STATE (1968) NWLR 163.
The ingredients of the charge of culpable homicide punishable under Section 221 (b) of the Penal Code as well stated by the learned trial judge on page 45 of the record of appeal are;
(1) That there has been death of a person
(2) That the death was as a result of the act of the accused, and
(3) That the act was done with the intention of causing death or the intention of causing such injury that death would be the probable result.
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See UBANI V. THE STATE (2003) 16 NSCQR 265; IGAGO V. THE STATE (1999) 14 NWLR (Pt.637) 1; EDOHO V. THE STATE (2010) 14 NWLR (Pt. 1214) 651 OGBU & ANOR V. THE STATE (2007) 4 SCM 169; (2007) 3 SC (Pt. 11) 273; STATE v. DANJUMA (1997) 5 NWLR (Pt. 506) 512.
The learned trial judge considered and relied on the oral evidence of the PW1 who was an eyewitness to the act of stabbing the deceased with a knife by the appellant, the PW2 who conveyed the deceased to the hospital and confirmed that he died shortly after arriving thereat as well as the written confession by the appellant to the act of stabbing which appellant also confirmed in his oral testimony, to hold that the prosecution indeed proved the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code against the appellant as charged and beyond reasonable doubt.
I agree with the trial Court and consequently I hold that this appeal is lacking in merit and substance. It should be dismissed and it is dismissed accordingly. I affirm the finding, of the trial Court and the conviction and sentence of the appellant as contained in judgment of the High Court of Kano State as well
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as the recommendation of the appellant for mercy by the Governor of Kano State.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. :
I was privileged to read in draft the lead Judgment of my learned brother, Isaiah O. Akeju JCA. I agree with the reasoning and conclusion of His Lordship. I would like to make some comments in response to the oft misconstrued interpretation of Sections 102, 104 and 105 of the Evidence Act 2011, as Appellant’s Counsel has done in this appeal, that the only type of evidence admissible of public documents are certified true copies thereof.
Sections 85 and 86 of the Evidence Law Supra provides as follow:
Section 85
The contents of documents may be proved either by primary or secondary evidence.
Section 86
1. Primary evidence means the document itself produced for the inspection of the Court.
The interpretation of these sections is clearly that when the primary evidence itself is available, there is no requirement for secondary evidence. It is only when primary evidence of a public document is not available that certified true copies of these documents, as
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contemplated in Section 104 of the Evidence Act, are required.
The Apex Court, in the recent case of P.D.P v INEC (2014) 17 NWLR part 1437 Page 525 at 562 had reason to pronounce on whether primary evidence which is a public document requires certification under Section 104 of the Evidence Act. In the appeal before them the argument was whether the original of a letter from INEC was properly tendered without the necessity of subjecting it to certification. Reading the lead Judgment, His Lordship, Okoro JSC, at Pages 562 to 563 Para E-C held as follows:
“The learned Senior Counsel for the 1st – 24th respondents however submitted that the letter written by Independent National Electoral Commission to the 25th respondent was properly tendered by him without the necessity of subjecting it to certification since it was in his custody. He cited and relied on the case of Iteogu V. LPDC (2009) 17 NWLR (Pt.1171) at 684 paragraphs G – H.
‘There is no doubt that Exhibit W05 was written by Independent National Electoral Commission Commissioner and addressed to the 25th respondent who had custody of it up to the point of tendering some.
Was this
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document of a character that ought to have been certified before tendering? Section 102 of the Evidence Act 2011 makes the following documents public documents. It says:
“The following ore public documents:
(a) documents forming the official acts or records of the official acts,
(i) of the sovereign authority,
(ii) of official bodies and Tribunals,
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere.
(b) Public records kept in Nigeria of private documents.”
By Section 103 of the Act, all documents other than public documents are classified as private documents.
Exhibit WOs, the subject of this issue was the original correspondence between the 25th respondent and Independent National Electoral Commission. The said letter was in the custody of the 25th respondent and remained so up to the point ‘there it was tendered. It is my view that was no need to certify the original copy of the letter even though it was issued to him by o public officer. It is the public officer who keeps the original of a public document who certifies o copy of it which con be tendered where the original
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cannot be tendered. Put differently, the only categories of public documents that ore admissible ore either the original document itself or, in the absence of such original, certified copies and no other.” Emphasis Mine
It is patent therefore, that where the original copy of a document is available, it is admissible without the requirement for certification. See also Daggash v Bulama (2000) 14 NWLR part 892 page 144
The case of Tabik Investment Ltd v Guaranty Trust Bank PLC (2011) 17 NWLR Part 1276 Page 240 at 261-262 cited by the Appellant’s Counsel did not state the contrary. What His Lordship Rhodes-Vivour JSC held in that case was that a Police Officer is a Public Officer by virtue of Section 318(h) of the Constitution and Section 18(1) of the Interpretation Act Cap 192 LFN 1990. All documents from the custody of the police, especially documents to be used in Court are public documents. Before a public document can be tendered and accepted by the Court, it must be certified, His Lordship held.:
That case never deliberated nor stated that where primary evidence is available, it must be certified.
I accordingly hold that in line with
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Sections 85 and 86 of the Evidence Act Supra and the authorities above cited, the medical report and the documents from the Nigeria Police, being original copies, were properly received by the trial Judge in evidence.
I agree with the lead Judgment that this appeal lacks merit and dismiss the same. I also affirm the Judgment of the lower Court.
AMINA AUDI WAMBAI, J.C.A.: I was privileged to read in draft the lead Judgment delivered by my learned brother, ISAIAH OLUFEMI AKEJU, J.C.A. and I cannot but agree with the reasoning and conclusion therein.
I agree that the appeal lacks merit and deserves to be dismissed. I hereby dismiss the appeal and affirm the Judgment of the lower Court.
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Appearances:
Wilson O. Diriwari, Esq.For Appellant(s)
Sanusi Aliyu, Esq.For Respondent(s)
>
Appearances
Wilson O. Diriwari, Esq.For Appellant
AND
Sanusi Aliyu, Esq.For Respondent
