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MAIKUDI v. STATE (2022)

MAIKUDI v. STATE

(2022)LCN/17053(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, April 14, 2022

CA/K/454/C/2018

Before Our Lordships:

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

MUHAMMED MAIKUDI APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

INGREDIENTS TO BE PROVED IN ORDER TO SUSTAIN A CONVICTION IN A CHARGE OF CULPABLE HOMICIDE

It is settled law that in order to sustain a conviction in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following ingredients.
(a) That there was a death of a human being.
(b) That the death was as a result of the act of the accused and
(c) That the act was done with the intention of causing such injury that death would be probable consequence of his act.
See Jua v. State (2010) NWLR (Pt. 1184) 217 at 250; Yaki v. State (2008) 7 SC 28 at 29.
PER TALBA, J.C.A.

THE POSITION OF LAW ON THE BURDEN OF PROVING THE GUILT OF AN ACCUSED PERSON IN A CRIMINAL TRIAL

By virtue of the provision of Section 36(5) of the Constitution of the FRN 1999 (as amended) every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. 

The burden of proving beyond reasonable doubt the guilt of an accused person rest on the prosecution by virtue of Section 135(1) of the Evidence Act, 2011. The prosecution can discharge its burden in three ways namely;
1. Confessional Statement
2. Evidence of an eye witness
3. Circumstantial evidence which is accurate, cogent, convincing and compelling, pointing to only one conclusion that the accused was the one who committed the act. See Emeka v. State (2001) 14 NWLR (Pt.734) 666 at 683; Akinmoju v. State (1995) NWLR (Pt. 406) 24 at 212.
PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of High Court of Justice Katsina State. Coram Hon. Justice Abdullahi Yusuf Chief Judge (as he then was) delivered on 18th January, 2018 in charge No: KTH/16C/2015.

The appellant was arraigned before the lower Court on a one count charge, alleging the offence of Culpable Homicide punishable with death contrary to Section 221 of the Penal Code laws of Katsina State. Prior to his arraignment, the appellant was a serving Police Officer, a constable attached to Central Police Station Katsina. He was a friend of the deceased Barau Usman. The charge reads:
THAT YOU MUHAMMED MAIKUDI of Kofar Sauri Quarters Katsina, Katsina State on or about the 19th day of October, 2014 at Kofar Guga in Katsina Metropolis committed Culpable homicide punishable with death by doing an act to wit: causing the death of USMAN BARA’U by drowning him in a pond with the knowledge that death will be the probable consequence of your act and thereby committed an offence punishable under Section 221 of the Penal Code.
Dated this 2nd day of September, 2015.

​The appellant pleaded not guilty to the charge. In order to prove its case the respondent/prosecution called four witnesses and tendered two exhibits. These are the statements of the appellant in Hausa and English version, marked as Exhibits A and A1 respectively. The appellant testified in his own defence and no other witness was called. Learned counsels filed and exchanged written addresses. In a considered judgment the learned trial Chief Judge found the appellant guilty. He was convicted and sentenced to death. Aggrieved by the decision, the appellant appealed to this Court vide a Notice of appeal filed on 16th April, 2018, it contain three (3) grounds of appeal.

​At the hearing of the appeal on 27th January, 2022 Usman Salihu of counsel adopted the appellant’s brief of argument filed on 25th of August 2021. He urged the Court to allow the appeal and set aside the judgment of the lower Court. And Nabila Galadima Principal State Counsel Ministry of Justice Katsina State, adopted the respondent’s brief of argument filed on 26th of January, 2022 and deemed on the 27th January, 2022. He urged the Court to dismiss the appeal and affirm the decision of the lower Court.

From the three grounds of appeal, the appellant distilled three issues for determination thus:
1. Whether having regard to the discrepancies and contradiction in prosecution witnesses, the Court below was right to have convicted and sentenced the appellant to death in accordance with the provision of Section 221 Penal Code law of Katsina State.
2. Whether the Court below or lower Court was right to have passed judgment and condemned the appellant to death on hearsay evidence adduced before it.
3. Whether the Court below was right to have passed or condemned the appellant to death without weighing or evaluating evidence adduced before it.

On the other hand, the respondent distilled one issue for determination thus:
“Whether the prosecution had proved the offence of Culpable homicide punishable with death under Section 221 of the Penal Code beyond reasonable doubt to support the conviction and sentence of the appellant by the trial Court”.

​Upon a careful consideration of the three issues submitted by the appellant and the sole issue formulated by the respondent. I am of the view that the sole issue submitted by the respondent is enough to dispose of the appeal. Accordingly, I adopt the respondent’s issue for determination.

The appellant’s counsel submitted that there were so many discrepancies and contradictions in the prosecution witnesses which may cause serious doubt in the mind of the Court. He referred to the testimony of PW3 Haruna Adamu of the State CID Katsina who informed the Court that he did not see any sign of struggle at the scene of the crime which, contradict the testimonies of PW1 and PW2 at pages 20 and 23 of the record. He submitted that were there is a lot of discrepancies in the prosecution witnesses which is very fatal to the case at hand as it caused serious doubts. He relied on the case of Emmanuel Egwumi v. State (2013) 2 SCNJ (Pt. 111) 878. The learned counsel submitted that the testimonies of PW1 to PW4 were just hearsay, none of them witness what transpired at the scene of the crime. He submitted that hearsay evidence cannot be employed to convict the accused person. He cited the case of Joseph Daniel Uwa v. The State (2015) 4 NWLR (Pt. 1450) 438 and Section 125 of the Evidence Act 2011 and Section 38 of the Evidence Act 2011. Learned counsel submitted that the prosecution failed to prove its case against the appellant beyond reasonable doubt. He relied on the case of Mohammed v. State (2007) 13 NWLR (Pt. 1050) 186.

The learned counsel submitted that there was no proper evaluation of oral evidence as well as the documentary evidence tendered and marked as exhibits A and A1. The learned trial Judge only made reference to the prosecution’s case and that of the defence without properly evaluating the evidence adduced before it more particularly exhibits A and A1. Learned counsel submitted that an appellate Court would ordinarily not interfere with the findings of a trial Court where that Court has carried out its duty of evaluating the evidence before it and ascribing probative value thereto. However where the evidence is documentary an appellate Court is in good position as the trial Court to evaluate same. Where there is a complaint that the finding of the Court is not supported by the evidence before it. He relied on the case of Rev. Prof Paul Emeka v. Rev. Dr. Chidi Okoroafore (2017) 11 NWLR (Pt. 577) 410.

​In his response the respondent’s counsel submitted that the prosecution has proved beyond reasonable doubt the ingredients of the offence with which the appellant was convicted of by the trial Court, relying on circumstantial evidence before the Court. He referred to the testimonies of PW1–PW4. PW1 and PW2 gave a direct witness account stating that they saw the body of the deceased and buried same. And evidence of circumstances is cogent, strong and irresistibly point to only one conclusion that the appellant was the one who drown the deceased in the pond, which resulted to his death. And that circumstantial evidence can sustain conviction provided its compelling accurate, reliable, cogent and convincing. He relied on the case of Onah v. State (1985) 12 SC 59 and Omogodo v. State (1985) 5 SC 5.

​Learned counsel submitted that the appellant’s counsel in his brief, he stated that the evidence of the prosecution is characterized by discrepancies and contradictions without actually pointing to such alleged discrepancies and contradictions. The appellant’s counsel only referred to the testimony of PW3 who told the Court that he did not see any sign of struggle at the scene of the crime. But the appellant ignored the fact that PW3 told the Court that he did not visit the scene on the day the case was transferred.

The alleged discrepancy and contradiction is only in the air, it does not exist. On the issue of hearsay evidence, the respondent’s counsel concede that the evidence of PW4 is hearsay, but the evidence of PW1 and PW2 cannot be so. Their evidence is direct, cogent, conclusive and irresistibly pointing to one conclusion that it was the appellant that killed the deceased. Learned counsel submitted further that the trial Court properly reviewed, analysed and evaluated the evidence of both parties in its judgment. It is in the evidence of the prosecution that the appellant was the last person seen with the deceased before his death. His dead body was recovered from a pond with cut on his part of the body and strangulation marks. He relied on the case of Amos v. State (2019) 1 NWLR (Pt. 1653) 233 and Igba v. The State (2018) 6 NWLR (Pt. 1614) 44. The learned counsel submitted that the respondent had proved before the trial Court the offence of Culpable homicide punishable with death under Section 221 of the Penal Code Law against the appellant, by circumstantial evidence beyond reasonable doubt.

It is settled law that in order to sustain a conviction in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following ingredients.
(a) That there was a death of a human being.
(b) That the death was as a result of the act of the accused and
(c) That the act was done with the intention of causing such injury that death would be probable consequence of his act.
See Jua v. State (2010) NWLR (Pt. 1184) 217 at 250; Yaki v. State (2008) 7 SC 28 at 29.

By virtue of the provision of Section 36(5) of the Constitution of the FRN 1999 (as amended) every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. 

The burden of proving beyond reasonable doubt the guilt of an accused person rest on the prosecution by virtue of Section 135(1) of the Evidence Act, 2011. The prosecution can discharge its burden in three ways namely;
1. Confessional Statement
2. Evidence of an eye witness
3. Circumstantial evidence which is accurate, cogent, convincing and compelling, pointing to only one conclusion that the accused was the one who committed the act. See Emeka v. State (2001) 14 NWLR (Pt.734) 666 at 683; Akinmoju v. State (1995) NWLR (Pt. 406) 24 at 212.

In this instant case, the prosecution relied on circumstantial evidence hence there is no confessional statement or evidence of an eye witness.

The circumstantial evidence rest on the doctrine of last seen. The doctrine of last seen requires that a person charged with murder who was the last person seen with the deceased before his death, should offer some explanation as to how the deceased met his death. It is the responsibility imposed on the accused upon the invocation of the doctrine of last seen that shifts the burden to him to prove his innocence. See Idi v. State (2019) 15 NWLR (Pt. 1696) 448 (SC); Ismail v. State (2011) 47 NSCQR 89 at 131. In the determination of this appeal it is important to consider the reasoning of the learned trial Chief Judge, the ratio decidendi which brought about the conviction of the appellant, in order to limit the parameters of the content of the appeal.

The learned trial Chief Judge at page 42-43 of the record held thus;
“The prosecution has proved the first ingredient as the mother of the deceased testified as to having seen the corpse of her son. I now come to the second ingredient of death was caused by the accused and such proof must be beyond reasonable doubt. The prosecution in this case has the duty to prove that it is the act of the accused namely he was the one who caused the death of the deceased. The defence were alleging drowning in a pond but there is no evidence led to prove that the deceased could have died outside the water and then thrown into the pond where he was brought out. There was no evidence from those who discovered him and brought him out of the pond.
The crux of the matter is that circumstantial evidence is the only means of getting to the root cause of the death of the deceased. It was proved that the deceased went out with the accused, the accused himself confirmed going to Kofar Guga by the pond and that the deceased said he wanted to swim. The accused did not witness the deceased going into the pond nor did he set his eyes on him until he was discovered dead.
The most serious aspect of the defence of the accused is why did he not call for help or go to the police station as a police officer of about 10 years standing? Instead, he went to the deceased residence with his motorcycle and cloth.
I have carefully analysed the defence of the accused but I am unable to give him clean bill of being innocent from what happened. As his friend why did he not dissuade him from swimming in such water which under cross-examination he said “he left him by the pond, he waited to take a swim, they met some children by the time they reached the pond they left the two of them. He looked for him he did not see him.”
This Court finds the testimony of the accused incredible and unbelievable. The accused must be instrumental to the death of the deceased. I hereby find you Mohammed Maikudi guilty of killing Usman Barau by drowning him in the pond thereby committing an offence punishable under Section 221 of the Penal Code.”

From the excerpts of the judgment, it is crystal clear that the learned trial Chief Judge convicted the appellant solely on circumstantial evidence relying on the doctrine of last seen. In line with the reasoning of the learned Chief Judge, it does not appeal to logic and common sense to say that the appellant who is a police officer of over ten years and a colleague of the deceased, after he accompanied the deceased to the pond to swim, he would allow him to drown in the pond without making any effort to seek for help in order to rescue the deceased. And moreso instead of reporting to the police station immediately, he simply took the deceased motorcycle and cloth to the deceased mother in their house. It is without any doubt that the appellant owe a duty to offer some explanation which is cogent and reliable in order to exculpate himself from criminal liability otherwise it is legally justified to infer that the appellant is responsible for the death of the deceased.
As a matter of fact, in Exhibit A and A1 the appellant stated that “… then I took the cloths and the motorcycle and took them to his mother, then the mother said I must bring her son back from there we, went to CPs Katsina asking me where did I took her son…”
​This piece of evidence clearly explains the logic behind the last seen doctrine even from a layman’s point of view. In the present circumstance, the only evidence to be relied upon is the circumstantial evidence and the application of the doctrine of last seen in the absence of an eye witness account, or a confessional statement. The learned trial Chief Judge properly applied the doctrine of last seen in this instant case. In the case of Amos v. State (supra) Perter Odili JSC stated thus;
“This doctrine of “last seen” was properly applied in this instance by the two Courts below in the absence of explanation as to what happened or caused the death of the deceased last seen in the company of the accused/appellant. It is that full responsibility imposed on the appellant upon the invocation of this doctrine that shifted the burden to him to prove his innocence which he failed to do. See Njoku v. The State (2013) 2 NWLR (Pt. 1339) 548.
What is available in this case as a method to establish the culpability of the appellant is circumstantial evidence which can in certain situations be stronger than even an eye witness account. It is such that when the different pieces of evidence are taken altogether, there is this tie leading to the irresistible and compelling conclusion that the crime was committed and by no other than the accused. It can take on such a logical reading with the precision of mathematics that leaves no room for any other conjecturing possibility than that the crime for which the accused/appellant was charged was committed by him and could not have been done by another. It is the efficiency of the circumstantial evidence that existed in this case that left the two Courts below without any resistance but to accept it as sufficient to sustain the conviction that is in line with what has become trite and reiterated by the Courts including the Apex Court and I shall for effect cite and quote the case of Amusa Opoola Adio & Anor v. The State (1986) 4 SC 194 at 219-220; (1986) 2 NWLR (Pt. 24) 581…”
This case is in all fours with the case of Amos v. State (supra). The accused/appellant offered no explanation as to how the deceased met his death. What is more worrisome is the fact that the accused/appellant was a police officer at the time of the incident and the deceased was his colleague and a friend. It is often said that witnesses can lie but circumstances do not. The conduct of the appellant after the death of the deceased leaves no one in doubt that he is responsible for the death of the deceased. In a normal situation any reasonable person will seek for help to rescue a drowning person. And if death results from the drowning it should be reported immediately to the police. But the accused/appellant being a police officer who is in a better position to take this two steps, he failed to do so. The only logical deduction that could be made is that the appellant failed to report himself. The appellant’s counsel claimed that there were discrepancies and contradictions in the evidence of prosecution witnesses but the respondent’s counsel rightly submitted that the appellant’s counsel failed to point out such discrepancies and contradictions. Equally the contention of the appellant’s counsel that the lower Court passed judgment and condemned the appellant to death on hearsay evidence does not hold water. The evidence of PW1 and PW2 is crystal clear to the effect that the deceased died and he was buried. The circumstantial evidence is compelling, accurate, reliable, cogent and convincing that no one else but the appellant was responsible for the death of the deceased. 

The learned trial Chief Judge had properly evaluated the evidence before the Court and therefore an appellate Court will have no reason to interfere with the findings. The circumstances that will warrant an appellate Court to interfere with the findings of the lower Court are non-existent. See Ochiba v. State (2011) 12 SC (Pt. IV) P. 79 and Olowu v. Nig. Navy (2011) 12 SC (Pt. 11) P. 1.

In view of the foregoing, it is my considered view that the judgment of the learned trial Chief Judge cannot be faulted. I therefore resolve the sole issue against the appellant. The appeal lacks merit and it is accordingly dismissed. The conviction and sentence of the appellant is hereby affirmed.

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 reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

KENNETH IKECHUKWU AMADI, J.C.A.: I had the privilege of reading before now, in the draft, the judgment just delivered by my learned brother, Abubakar Mahmud Talba, JCA.

​I agree with the reasons adduced to arrive at the conclusion that the appeal is devoid of merit; same is accordingly dismissed by me.

​The judgment and the sentence of the trial Court is hereby affirmed.

 

Appearances:

Usman Salihu, Esq. For Appellant(s)

Nabila Galadima, PSC, MOJ, Katsina State. For Respondent(s)