MAGAJI v. STATE
(2022)LCN/17049(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Wednesday, July 27, 2022
CA/K/184/C/2021
Before Our Lordships:
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
SALE MAGAJI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE WIFE OF A DEFENDANT STANDING CRIMINAL TRIAL IS A COMPETENT WITNESS
I am in agreement with the submission of the respondent’s counsel that the appellant’s counsel is indeed misconceived. It is settled that by Section 182(2) of the Evidence Act wife and husband in this context means respectfully the wife and husband of a monogamous marriage and to enjoy the privilege such must be proved. See the case of Okoro v. The State (1998) 12 Sc 134 at 144. There is no dispute in the fact that in this instant case the marriage between the appellant and the wife (PW3) is not a monogamous one rather it is a polygamous marriage. In Adisa v. State (1991) 1 NWLR (Pt. 168) 490 at 501, this Court held thus:
“The wife of a defendant standing criminal trial is a competent witness and could be compellable in certain circumstances under Section 160 of the repealed Evidence Act”
See also Elabanjo v. Tijani (1986) 5 NWLR (Pt. 46) 952. PER TALBA, J.C.A.
THE POSITION OF LAW ON CIRCUMSTANTIAL EVIDENCE
It is well settled that where the circumstances of the commission of an offence are positive, direct, and unequivocal and irresistibly lead to the inference that it is the accused that committed the crime such inference ought to be drawn. See Shazali v. The State (1988) 12 SC (Pt. 11) 58. In other words, evidence which is positive, irresistible and leaves no room for other explanations beyond pointing at the accused person’s guilt is sufficient to ground conviction. See Mbenu v. The State (1988) 7 SC (Pt. 111) 71 at 84; Adepeju v. The State (1998) 7 SC (Pt. 1) 117 at 128; Nasiru v. The State (1999) 1 SC 1 AT 14; Ahmed v. The State (1999) 5 SC (Pt. 11) 398.
Circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics which lead to a finding with such degree of certainty that the appellant killed the deceased. PER TALBA, J.C.A.
THE DOCTRINE OF LAST SEEN
This brings us to the doctrine of “last seen.” It simply means that the law presumes that the person last seen with the deceased bears full responsibility for his or their death, if it turns out that the person last seen with him is dead. See Nweze v. The State (1996) 2 SCNJ 47 AT 61-62 Igho v. The State (1978) 3 SC 87 AT 254; Gabriel v. The State (1989) 5 NWLR (Pt. 122) 457; (1989) 12 SCNJ 33.
It must be stressed and this is settled that in view of the said doctrine of last seen, it is the duty of the accused person to give an explanation relating to how the deceased met his or her death. And in the absence of an explanation by an accused person a trial Court and even an appellate Court will be justified in drawing the inference that the accused person killed the deceased. See Adepeju v. The State (1998) 7 SCNJ 83 and recently Adeniyi v. The State (2001) 5 SCNJ 371 AT 386 and Uguru v. The State (2001) 4 SCNJ 282 AT 293. PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Kaduna State High Court delivered on 27th January, 2020 in Charge No: KDH/KAD/44C/16.
The appellant was arraigned before the High Court (hereinafter referred to as the lower Court) on a five count charge of culpable homicide and an attempt to commit suicide punishable under Sections 221 and 231 of the Penal Code Laws of Kaduna State respectively. The appellant was alleged to have murdered/slaughtered four of his children and he attempted to kill himself on or about the 18th of November, 2015 at Kawo Kaduna. The appellant pleaded not guilty and the prosecution called seven (7) witnesses to prove its case. The appellant testified in his own defence and he also called one witness.
It is instructive to note that PW1 is the neighbor of the appellant. PW2 is the son of the appellant. PW3 is the wife of the appellant and the mother of his children including the four deceased. PW4, PW5 and PW6 are police officers. PW7 is the elder brother of the appellant.
After hearing a considered judgment, the learned trial Judge convicted the appellant and sentenced him to death by hanging for the murder of four of his children. Aggrieved by the decision the appellant appealed to this Court vide a notice of appeal filed on 11th of March, 2020. It contain six (6) grounds of appeal. The appellant filed an amended notice of appeal on 20/10/2021, and deemed on 4/11/2021. It contain ten (10) grounds of appeal.
At the hearing of the appeal on 29th of June, 2022 Haliru Garuba of counsel adopted the appellant’s brief of argument filed on 9th November, 2021. He urge the Court to allow the appeal and set aside the judgment of the trial Court. A. Isiyaka of counsel adopted the respondents brief of argument filed on 4/02/21 and deemed on 30/5/22. He urge the Court to dismiss the appeal and affirm the judgment of the trial Court.
From the ten (10) grounds of appeal the appellant distilled three issues for determination thus:
1. Whether the learned trial Judge was right to have relied on Exhibit 3 (1-9) and the evidence of PW3 in convicting and sentencing the appellant to death.
2. Whether the failure and/or omission of the learned trial Judge to consider the clear, consistent and uncontroverted explanation put forward by the appellant did not occasion a miscarriage of justice to the appellant.
3. Whether having regards to the evidence adduced at trial the learned trial Judge was right to have held that the prosecution led sufficient, cogent, consistent and overwhelming circumstantial evidence that proved beyond reasonable doubt the guilt of the appellant.
The respondent on its part formulated two issues for determination, thus:
1. Whether the lower Court was right to have convicted the appellant and sentenced him to death on all the four (4) counts charge based on the circumstantial evidence led by the prosecution.
2. Whether the lower Court was right to have convicted the appellant on the charge of attempt to commit suicide based on the circumstantial evidence led by the prosecution.
After considering the issues submitted by learned counsel, I am of the opinion that the central issue which is germane for consideration in this appeal is thus:
“Whether the prosecution has proved its case beyond reasonable doubt to warrant the conviction and sentence of the appellant by the lower Court.”
It should be noted that all the issues raised by the parties can be subsumed into this all encompassing sole issue.
In a criminal trial the onus rest throughout the proceedings on the prosecution to prove the guilt of the accused beyond all reasonable doubt. This however does not mean proof beyond any shadow of doubt. In order that an accused person be entitled to the benefit of doubt, the doubt must be genuine and reasonable arising from evidence before the Court. See The State v. Aibangbee (1988) 7 SC (Pt. 1) 96.
Where there is any doubt created in the prosecution’s case, it ought to be resolved in favour of the accused. See Mbenu v. The State (1988) 7 SC (Pt. 111) 71 at 87.
The guilt of an accused person may be proved by
(a) Confessional Statement
(b) Circumstantial evidence or
(c) Evidence of eye witness.
In this instant case, there is no confessional statement and no evidence of an eye witness. The evidence adduced before the trial Court is circumstantial evidence.
PW1 Binta Ubale Abubakar, she is the appellant’s neighbor, they live in the same compound with their houses attached to each other. She told the Court that on 18th November, 2015 at about 5 to 6 am she heard Safiya wife of the appellant (PW3) screaming calling her name to come and assist her. And when she went and entered their apartment she went straight to the appellants room where the wife was screaming but the appellant refused to open the door and he told her to go back to her apartment after thanking her. Soon after she left she heard a louder voice shouting again and she went back. She told the appellant’s son to forcefully push the door which he did and they rescued the wife. They ran to her apartment. PW1 told the Court that at the time she entered the appellant’s house, there were five children of the appellant including Salim the eldest son. She called Safiya’s (PW3) mother and they reported the matter at Kawo police station. When the police came the appellant refused to open the door and he told the police to go back to the station he will meet them later as he was preparing his children for his. PW1 said at that time four of his children where in the house while Salim the eldest son was outside. She said when the uncle of Salim (PW7) went and called the police again, as they came and entered the house they brought out four children of the appellant slaughtered to death, while the appellant had a deep cut and blood all over his body.
PW1 further told the Court that the house of the appellant has iron doors and aluminum windows with iron rod. There was no damage to the door and windows, they are all intact. It is not possible for someone to go into the house and there was no any visitor that came to the house that day. It was only the appellant, his wife and five children in the house that day.
PW2 Salim Sale Abubakar is the son of the appellant and PW3 Safiya Abubakar is his mother. He told the Court that on 18th November, 2015 he was in the house with his father (the appellant), his mother (PW3) and four of his younger ones, Abubakar, Salman, Nana, Khadija, and Jibril. He told the Court that PW1 lives in the same compound with them in the next apartment. He corroborated the evidence of PW1 and he further told the Court that when the appellant did not open the door, he went and called his uncle who came to the house with him.
The uncle called his father’s name when he did not answer, he went to the window of his room and called his father’s name again where the appellant raised the curtain of the window. The uncle saw the appellant with blood on his body. They went and called the police. The police forced the door open and they entered and brought out four of his younger ones dead. They were slaughtered by the neck and the appellant had a deep cut on his neck but he was alive. He told the Court that the police took the appellant to the hospital while the four children were buried at Kawo.
PW3 Safiya Abubakar, she is the wife of the appellant and the mother of PW2, and the four children who were slaughtered to death. She corroborated the evidence of PW1 and PW2. She told the Court how she was rescued from the appellant’s room. And that when the appellant refused to open the door she told PW2 to go and call his uncle. Thereafter when she came back to the house she saw the police bringing out her four children all dead with their necks slaughtered.
PW4 Sgt Abbas Danladi, he told the Court that on 18/11/2015 he was at the counter at Kawo Police Station when Safiya (PW3) with her mother and her first son Salim (PW2) came to report that her husband (the appellant) Sale Magaji beat her up. The charge room officer (CRO) ordered him to invite, Sale Magaji. On reaching the house in company of his wife (PW3), her mother and her son (PW2), he ordered Salim (PW2) to knock at the door of the appellants’ house, but the appellant refused to open the door. The son knocked at the door again and the appellant shouted from inside “who are those knocking at my door”? Then PW4 answered, “I am a police officer and that I come to invite you to the station”. The appellant refused to open the door. The son knocked at the door for the third time and the appellant still refused to open the door, but he shouted that “you people should go I am coming, I am coming.” PW4 said they return to the station where he explained to his Superior officer who sent him.
PW5 Inspector Yakubu Yarima told the Court that on 18/11/2015 he was on duty when the charge room officer called him and told him that Sgt Abbas (PW4) was sent to invite the appellant but he refused to come. Then his team and the relations of the appellant’s wife went to the house of the appellant. They met Salim (PW2) son of the appellant outside the house. The door was locked and he knocked at the door several times with no answer. He collected the appellant’s phone number from his son Salim and he called the appellant several times but nobody picked up. After staying for some time, Salim told him that his father will not open the door. He went back to the station and reported to the charge room officer.
PW6 is Sgt Oshaba Joseph attached to Anti-Homicide section of the State CID Kaduna, that is the Criminal Investigation and Intelligence Department. As at 2015 he was a Police Corporal. He told the Court that on 25th of November, 2015 a case of Culpable Homicide was transferred from Kawo Division of the Nigeria Police Force to State CIID Kaduna for investigation. The appellant was at the hospital. The case file was transferred with pictures of the appellant and the four children. And an inscription on the wall in the room. On the 14th December, 2015 the appellant was brought to the office from the hospital. He was assigned to record his statement. He recorded his statement under word of caution. On 15th December, 2015, the appellant made additional statement under word of caution. The two statements were tendered in evidence by PW6 and marked as exhibits 1 and 2 respectively. The nine pictures were also tendered in evidence and marked as exhibits 3(1 to 9). A brown envelope was admitted in evidence and marked as Exhibit 4. The contents of the brown envelope was admitted in evidence and marked as exhibit 5 and 5A, a knife with blue and white handle with a sign of a star in red ink, with blood stains and a white leather respectively.
PW7 is Ahmed Yusuf, he is elder brother of the appellant. He told the Court that on 18/11/2015 around 13:15pm i.e 1:15pm, he was sitting in his shop at Kawo market. He saw Salim (PW2) in front of his shop and he asked him what is happening. Salim said his father and mother had a quarrel and his mother ran to her father’s house. His mother and her brother reported his father to the police at Kawo Police Station. The police went to the house but his father refused to open the door. Salim also told him that his junior brothers and sister are still in the house since morning and that they have not eaten anything. PW7 said he called the appellant on phone and the appellant answered the phone, but when he heard his voice, he knew there was something wrong from the way he sounded, because he could not hear what the appellant was saying.
PW7 said he got a motor cycle which took him to the appellant’s house together with Salim. He met the door locked. He knock at the door and he heard some sound through the window. He went to the window and he saw the appellant’s neck with deep cut. He was the window open and he went back to the door and start to hit the door with his leg. Salim then drew back and hit the door with force and the door broke open. He entered the room with Salim and he was looking for the children. They saw the appellant’s daughter on the bed with her neck cut. He looked down beside the bed and he saw one small boy his neck too was cut. He then became weak and went out of the house to the veranda. He was the appellant covered with blood from his neck to leg. He ran to the police station Kawo and reported at the counter. The police took their vehicle and they went to the appellant’s house. On entering the house with the police he saw one small boy near the children’s room he too his neck was cut. When he entered the mother’s room he saw one boy on the bed he too his neck was cut. All in all, he saw four children with their neck cut, one girl and the three boys. The police took pictures of the four slain children with the appellant. They were brought out and put in a van. They were taken to Kawo police station with the help of neigbours. From kawo police station they took the four slain children and the appellant to St. Geralds Hospital.
The four children were confirmed dead while the appellant was admitted in the hospital. The corpses of the four slain children were buried at Kawo.
In the case of Daniels v. The State (1991) 8 NWLR (Pt. 212) 713 at 732, the Court held thus:
“The appellant is now a condemned prisoner and a charge of murder is established when the prosecution proves the following beyond reasonable doubt:
1. that the deceased died
2. that the death of the deceased has resulted from the act of the appellant
3. that the act of the appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequences”
See Ogba v. The State (1992) NWLR (Pt. 222) 164 at 198 C–D where this Court reiterated the law thus:
“These three conditions must co-exist and where one of them is absent or tainted with doubt the charge is not said to be proved. The onus of proof is on the prosecution throughout and does not shift”
See Obade v. The State (1991) 6 NWLR (Pt. 198) 435 at 456.
From the foregoing background, I shall now proceed to ascertain how the prosecution has striven to prove the three ingredients of the charge of culpable homicide and attempt to commit suicide, leading to the guilt of the appellant beyond reasonable doubt as to warrant his conviction and sentence to death.
(A) That the deceased died.
PW2 a senior brother of all the deceased persons told the Court that the Police brought out four of his younger ones dead. They were slaughtered by the neck and his father had a deep cut on his neck but he was alive. PW3 the mother of the deceased persons told the Court that when she came back to the house she saw the police bringing out her four children all dead with their neck slaughtered.
PW7 the elder brother of the appellant and an uncle to the deceased persons, he told the Court that he entered the room with PW2 and he was looking for the children. They saw the appellant’s daughter on the bed with her neck cut. He looked down beside the bed and he saw one small boy, his neck too was cut. When the Police came on entering the house he saw one small boy near the children’s room and he too his neck was cut, when he entered the mothers room he saw one boy on the bed he too his neck was cut. All in all he saw four children with their neck cut, one girl and three boys. From the testimonies of PW2, PW3 and PW7 it has been established beyond reasonable doubt that the four children, Sadiq Saleh, Jubrin Saleh, Khadiyah Saleh and Salmanu Saleh are dead. They were all slaughtered on the neck leading to their death. There is no any dispute as to the fact that the death of the diseased persons actually took place.
(B) That the death of the deceased has resulted from the act of the Appellant.
The appellant’s grudge is predicated on the following:
1. Whether the learned trial Judge could rely on Exhibits 3 (1-9) when same did not comply with Section 84 of the Evidence Act 2011.
2. Whether the learned trial Judge was right when he held that the inscription on the wall exhibit 3 (8) was written by the appellant.
3. Whether the learned trial Judge was right to rely on the evidence of PW3 when PW3 was not a competent and compellable witness for the respondent and
4. Whether the learned trial Judge was right to have held that the prosecution led sufficient, cogent, consistent and overwhelming circumstantial evidence that proved beyond reasonable doubt the guilt of the appellant.
A. The appellant’s counsel submitted that the apex Court and this Court in interpreting Section 84 of the Evidence Act 2011, have made it clear that compliance with the provision of the said Section is mandatory and failure to satisfy same would lead to the evidence being rejected. He referred to the testimony of PW6 who tendered Exhibits 3 (1-9) in evidence at the trial Court. That he did not give any details of explanation as to the type of camera that was used in taking the photographs nor did he produce a certificate describing the manner in which the pictures were produced as well as the particulars of the camera used in producing them in accordance with Section 84(4) of the Evidence Act, 2011. Learned counsel relied on the following cases to buttress his argument. Emzor Pharmaceutical Ind. Ltd. v. Geencaaf Ventures Ltd & Anor. (2021) LPELR-54695; Davou v. C. O. P Plateau State (2019) LPELR–47040.
The respondent’s counsel submitted that exhibits 3 (1-9) only corroborates the already established evidence of the prosecution by PW1 to PW7. It only adds more weight to the evidence. However, there is no dispute in the fact that compliance with the provision of Section 84 of the Act is Mandatory. See the following cases:
Dickson v. Sylva & Ors (2013) All FWLR (Pt. 676) 392; U.B.N Plc v. Agbontean & Anor. (2018) LPELR–44160 (CA), Ekiti State INEC & Ors v. PDP & Ors. (2013) LPELR–20411 (CA).
In this instant case, Exhibits 3 (1–9) were relied upon by the learned trial Judge to further confirm the fact that the deceased person (children) were slaughtered by the throat to death. In other words, it confirm the fact that the deceased children of the appellant died. This fact was already established by the evidence of PW2, PW3 and PW7. There is no dispute in the fact that the four children died. In his judgment, the learned trial Judge held thus:
“It is instructive to note here, that it is the further evidence of PW1, PW2, PW3 and PW7 that the four deceased children of the defendant namely Sadiq Sale, Jibrin Saleh, Khadija Sale and Salmanu Saleh were all slaughtered by the throat to death, while the defendant had a deep cut on his throat and blood all over his body. These facts were confirmed by exhibits 3 (1-9) which are copies of nine (9) pictures the first two pictures showing the accused person in white caftan with blood stain and a deep cut on his throat and the next four pictures exhibits 3 (3 – 6) showing each of the four children of the defendant slain and one picture showing the four slain children together, exhibit 3(7), while two pictures exhibit 3(8-9) showing inscription on the wall”.
See pages 115 and 116 of the record of appeal. In view of the above excerpts of the judgment, I am in agreement with the submission of the respondent’s counsel that even if exhibits 3 (1-9) are rejected it does not affect the established evidence that the four children died.
Furthermore I am also in agreement with the decision of this Court in the case of Zenith Bank Plc v. NACOIL Inter’l Ltd (Unreported) CA/L/593/2015, therein this Court allowed the appeal and held that since Section 84 applies to statements produced by a computer there was no evidence that the statement was produced by a computer therefore Section 84 did not apply. Similarly in this instant case, there is no evidence on record to show that exhibits 3(1 -9) were produced by a computer. They were admitted in evidence without any objection. See page 73 of the record of appeal.
B. The appellant’s counsel submitted that the learned trial Judge should not have relied on and place any probative value on exhibit 3 (8) a picture of an inscription on the appellant’s room which reads:
“This is the destiny of my children and I. May Allah accept our bodies and put us in paradise Amen”
The appellant’s counsel referred to Sections 68 and 72 of the Evidence Act and submitted that the act recognizes two ways of proving the identity of a disputed handwriting. The first is by calling a witness who is an expert as to identity of handwriting while the second is by calling a witness who is acquainted with the handwriting of the person whom it is supposed to be written. He cited the case of Bonnie & Anor v. Agi & Ors (2013) LPELR–21847.
Learned counsel submitted that PW6 tendered exhibit 3(8) without linking the said inscription with the appellant. He did not give evidence as to the fact that he is a hand writing expert.
Without much ado, exhibit 3(8) was tendered and admitted in evidence without any objection. The appellant did not dispute the fact that it was his handwriting. The Court can only call in aid of Section 68 and 72 of the act where there is a disputed hand writing.
In this instant case, there was no any dispute as to the handwriting therefore the said provisions of the act are inapplicable. In the case of Yongo v. COP (1992) 8 NWLR (Pt. 257) 36 at 57, the Supreme Court held thus:
“Although the law permits trial Courts to compare writings or signatures in order to discover their authors, this only arises in a case where the writings and/or signatures are in dispute and therefore in issue. And in such cases proven or acknowledged writings or signatures of the disputants must be before the Court”
When the said exhibit was sought to be tendered and admitted in evidence against the appellant, he should have instantly refuted or denied the hand writing, but he never did. In such circumstance it would amount admission by conduct. The denial at this stage is too late in the day.
C. The appellant’s counsel submitted that in a criminal trial, the spouse of an accused person is not a competent and compellable witness for the prosecution, except where the offence the accused is charged with is among those mentioned in Section 182(1) of the Evidence Act, 2011 or upon the application of the accused. He submitted further that PW3 was not a competent and compellable witness for the respondent and could not therefore testify against him in the absence of an application by him for PW3 to testify in the case. It was wrong for the trial Court to rely on the testimony of PW3.
The respondent’s counsel submitted that by the provision of Section 182(1) of the Evidence Act, 2011 the wife PW3 is a competent and compellable witness for the prosecution and no any application, approval or consent of the husband/appellant is required.
Section 182 (2) deals with where a husband is charged with an offence other than those offences in Subsection (1), it is then that the application and consent of a person charged is required. It is a misconception to say that in the present case the consent of the husband/appellant is needed.
I am in agreement with the submission of the respondent’s counsel that the appellant’s counsel is indeed misconceived. It is settled that by Section 182(2) of the Evidence Act wife and husband in this context means respectfully the wife and husband of a monogamous marriage and to enjoy the privilege such must be proved. See the case of Okoro v. The State (1998) 12 Sc 134 at 144. There is no dispute in the fact that in this instant case the marriage between the appellant and the wife (PW3) is not a monogamous one rather it is a polygamous marriage. In Adisa v. State (1991) 1 NWLR (Pt. 168) 490 at 501, this Court held thus:
“The wife of a defendant standing criminal trial is a competent witness and could be compellable in certain circumstances under Section 160 of the repealed Evidence Act”
See also Elabanjo v. Tijani (1986) 5 NWLR (Pt. 46) 952.
D. The appellant’s counsel submitted that from the records before this Court, it shows that the appellant did not make any confessional statement, neither was there any eyewitness who testified that they were present when the deceased four children were killed. But it was the decision of the learned trial Judge that the respondent led sufficient, cogent consistent and overwhelming circumstantial evidence that proved beyond reasonable doubt the offence of culpable homicide punishable with death under Section 221 of the Penal Code. Learned counsel submitted that it is not in doubt that circumstantial evidence can lead to a criminal conviction. However, there are conditions which must be met before a conviction can be sustained. He cited the following cases to buttress his argument. Thus:
Osuoha v. State (2010) 16 NWLR (Pt. 1219) 364; Amaechi v. State (2016) LPELR–40977.
He submitted further that from the above decisions, it is clear that for circumstantial evidence to ground a conviction it must point irresistibly to the guilt of the appellant and it must be devoid of contradictions and inconsistencies. He submitted that the evidence of the respondent’s witnesses particularly, PW1, PW2, PW3 and PW7, are laden with contradictions and inconsistencies on material facts. Especially, their testimonies as to how they found the bodies of the deceased children. Without much ado, I must correct the impression that, PW1 and PW3 never testified as to how they found the bodies of the deceased children. It was PW2 and PW7 that testified as to how the deceased four children were found in the house. It should also be noted that witnesses of truth are not expected to give evidence verbatim in the same manner. In Esangbedo v. The State (1989) 7 SC (Pt. 1) 36 at 63 para’s 25-30 Oputa JSC (OBM) stated thus:
“As a matter of fact, when witnesses of one incident reproduce the same or uniform account of that incident, the danger is that their evidence has been tailored, tutored and doctored. In actual life, there is bound to be minor variations in the account of truthful witnesses. But when witnesses contradict one another on material particulars, then they should not be believed. “(contradiction)” is the latin version of a to say the exact opposite”.
Throughout the evidence of PW1 to PW7 there is no iota of contradiction which can be so described as material contradiction. The appellant’s counsel strenuously submitted on the issue of contradiction which I believe is mere ranting. It cannot be supported by the totality of the evidence on record.
It is well settled that where the circumstances of the commission of an offence are positive, direct, and unequivocal and irresistibly lead to the inference that it is the accused that committed the crime such inference ought to be drawn. See Shazali v. The State (1988) 12 SC (Pt. 11) 58. In other words, evidence which is positive, irresistible and leaves no room for other explanations beyond pointing at the accused person’s guilt is sufficient to ground conviction. See Mbenu v. The State (1988) 7 SC (Pt. 111) 71 at 84; Adepeju v. The State (1998) 7 SC (Pt. 1) 117 at 128; Nasiru v. The State (1999) 1 SC 1 at 14; Ahmed v. The State (1999) 5 SC (Pt. 11) 398.
Circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics which lead to a finding with such degree of certainty that the appellant killed the deceased.
At this stage, it is apt to look at the findings of the learned trial Judge wherein he stated thus:
“In his instant case, there is credible, consistent and overwhelming circumstantial evidence that on the said 18/11/15 in the early hours of the morning between 5 – 6 am after PW1 and PW2 had forced the door to the defendant’s bedroom open and rescued PW3 who was shouting for rescue from the hands of the defendant to the apartment of PW1, the defendant locked up the main gate to the apartment which is an iron gate with the four children of the defendant namely Sadiq, Jibrin, Khadija and Salmanu sleeping therein. There is also consistent, credible and overwhelming circumstantial evidence that pursuant to the complaint of PW3 and her mother at the Kawo Police Station, the police came twice to invite the defendant to the station, knocked at the defendant’s door but the defendant refused to open the door and said “he was preparing his children for school.” This further confirms that the four children of the defendant were in the house locked up by the defendant that when the police came for the second time to invite the defendant to the station, the defendant still refused to open the door to the house and said “the police should go, he will come and meet them at the police station.”
There is consistent evidence of PW1, PW2, PW3, PW7 and even DW1 that the security fittings in the defendants house were intact and not damaged. Thus the defendant here was the last person to be in the company of the four innocent children.”
See pages 121-122 of the record of appeal.
It is also the findings of the learned trial Judge that:
“It is therefore my considered view that the defendant was the last person to be in company of the four deceased children and circumstantial evidence outlined above is consistent, credible and overwhelming coupled with the way and manner the four deceased children of the defendant died i.e all with cut on their necks as well as the cut on the neck of the defendant with blood all over his body as revealed in exhibits 3(1-7) together with the inscription on the wall in the defendant’s room as revealed in exhibits 3(8&9) and the knife with blood stain recovered in the defendant’s bathroom under the WC admitted as exhibit 5A has strengthened the prosecution’s cogent and consistent circumstantial evidence which points to one irresistible conclusion that the defendant here is the murderer of the four deceased children.
It is therefore the duty of the defendant here to give an explanation relating to how the four deceased children met their death. This the defendant has not been able to do in his defence in respect of counts 1-4 of the charge sheet. Consequently, I find and hold in agreement with the prosecution’s counsel that the prosecution has led sufficient, cogent, consistent overwhelming circumstantial evidence that has proved beyond reasonable doubt the offences of culpable homicide purnishable with death under Section 221 of the Penal Code Law against the defendant as outlined in counts 1-4 of the charge sheet for causing the death of the following Sadiq Sale, Jibrin Sale, Khadija Sale and Salman Sale (all children by slaughtering then hence there is no room for acquittal).”
The above findings of the learned trial Judge is unassailable. The deceased four children were in the appellant’s house and the appellant locked the house. The appellant refused to open the house when the police came twice to invite him to the police station. The deceased four children were with the appellant but they were never seen alive again until their bodies were recovered from the house. There was no evidence of forced entry into the house hence the iron door was intact and the windows were also intact. There was no damage to either the door or windows. There is no other rational conclusion one could arrive at other than that the appellant murdered the deceased four children. The possibility of any other person entering the house to commit the offence does not arise. The evidence on record fixed the appellant to the crime with sufficient cogency and which excludes the possibility that someone else had committed the crime. I am satisfied that the evidence adduced by the prosecution was tested, scrutinized and accepted by the trial Court and that it conclusively pointed to the appellant as the perpetrator of the murder of the deceased four children.
This brings us to the doctrine of “last seen.” It simply means that the law presumes that the person last seen with the deceased bears full responsibility for his or their death, if it turns out that the person last seen with him is dead. See Nweze v. The State (1996) 2 SCNJ 47 AT 61-62 Igho v. The State (1978) 3 SC 87 AT 254; Gabriel v. The State (1989) 5 NWLR (Pt. 122) 457; (1989) 12 SCNJ 33.
It must be stressed and this is settled that in view of the said doctrine of last seen, it is the duty of the accused person to give an explanation relating to how the deceased met his or her death. And in the absence of an explanation by an accused person a trial Court and even an appellate Court will be justified in drawing the inference that the accused person killed the deceased. See Adepeju v. The State (1998) 7 SCNJ 83 and recently Adeniyi v. The State (2001) 5 SCNJ 371 AT 386 and Uguru v. The State (2001) 4 SCNJ 282 AT 293.
In his judgment the learned trial Judge stated thus:
“It is the evidence of DW1 that on 18/11/15 he went to the mosque for his early morning prayers, and on his return he went straight to his bedroom. He stated that he first saw Sadiq who came to him and asked about their mother and he told Sadiq to look for the mother in the kitchen. That immediately Sadiq left, then Salim (PW2) came to his room with one Rabiu and another person whom he does not know his name, but he is tall with stick. That they surrounded him and on the instruction of Salim the other boys were beating him with the stick and he fell down and that the next thing he heard his son Sadiq saying in hausa “sun yanka baba” meaning they have slaughtered Baba. He state that he cannot recollect what happened thereafter until when Alhaji Ahmadu PW7 came and he told PW7 that they have killed me and was rushed to the hospital.
The above defence put forth by the defendant in my view is feeble and cannot serve as a rebuttal of all the cogent, consistent and credible circumstantial evidence led by the prosecution against the defendant in this case.”
From the above excerpts of the judgment, it is crystal clear that the contention of the appellant’s counsel that the learned trial Judge failed and/or omitted to consider the explanation put forward by the appellant and which has occasioned a miscarriage of justice to the appellant, does not hold water. The ipse dixit of the appellant is not sufficient for the trial Court to come to a conclusion that it was one Rabiu and another person with Salim PW2 that committed the offence. The submission of the appellant’s counsel is a clear affront to common sense in view of the evidence before the trial Court. Like in most murder cases the facts are pathetic, traumatic and revealing. In the case of Aiguokhian v. Edo State (2004) WRN 6 Pats Acholonu JSC stated thus;
“What we have here is a case of barefaced murder which the appellant has now concocted a story so bizarre and incredible as a defence that he hopes he could induce belief in such a fairy tale meant for infants.”
I am not in doubt that the appellant is only trying his luck to lie himself out of the situation he found himself. The appellant’s wife PW3, his son PW2, his brother PW7 and of cause his neighbor PW1 cannot all conspire to tell lies against him.
In conclusion, I hold that this appeal ought to fail as unmeritorious and it is liable to be dismissed because:
1. A prima facie case of culpable homicide punishable with death was established against the appellant as all the ingredients of the offence has been proven through circumstantial evidence. In other words, it has been established beyond reasonable doubt that the four children died and their death resulted from the act of the appellant. And the act of the appellant was done with the intention of causing the death of his four children having regard to the nature of the weapon used, which is a knife and the part of the body on which they were slaughtered i.e the neck. See Garba v. State (2000) 4 SC 157 at 163.; Adamu v. State (1986) 3 NWLR (Pt. 32) 865 at 876; Bakare v. The State (1987) 1 NWLR (Pt. 52) 579; Buje v. The State (1991) 4 NWLR (Pt. 185) 287 at 300.
2. The appellant was last seen with the deceased four children alive.
3. Proof beyond reasonable doubt has been established, which is not synonymous with proof beyond any shadow of doubt.
The sole issue is resolved against the appellant and the appeal is hereby dismissed for lacking in merit. The judgment of Kaduna State High Court delivered on 27th of January, 2020 is in charge No: KDH/KAD/44C/16 is affirmed.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading in draft form, the judgment just delivered by my learned brother A. M. Talba, JCA. I agree with and adopt as mine the finding and conclusion reached in the leading judgment that this appeal lacks merit. I also dismiss same and affirm the judgment of the lower Court in Charge No. KDH/KAD/44C/2016 delivered on 27/1/2020.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Abubakar Mahmud Talba, JCA, just delivered. I agree with the conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
Haliru Garuba, Esq., with him, L. A. James, Esq. For Appellant(s)
A. Isiyaka, Esq. For Respondent(s)
