MAKERI v. STATE (2020)

MAKERI v. STATE

(2020)LCN/14122(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Friday, April 24, 2020

CA/J/466C/2018

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

Yamari Usman Makeri APPELANT(S)

And

The State RESPONDENT(S)

RATIO

AN ARRAIGNMENT OF AN ACCUSED PERSON

Now, an arraignment involves the taking of the plea of an accused defendant. The plea is an accused defendant’s formal response of guilty of not guilty or no contest to a criminal charge. It is the means by which an accused defendant joins issues with the State on a criminal charge. It is trite that one of the fundamental requirements of a valid trial in a criminal matter is a valid arraignment. In Idemudia Vs State (1999) 7 NWLR (Pt 610) 202 at 219 B-C, Karibi-Whyte, JSC stated that:
“A valid trial is posited on the fact of a valid arraignment. An arraignment as rationem ponere, that is calling on the accused to reckoning for the allegations of the offences against him. The laws of this country have made adequate provisions for the protection of the interest of the accused and the citizens in the proper administration of justice. Accordingly, the Court before whom an accused person is required to appear for reckoning in respect of allegations of offences, is required to observe certain constitutional requirements in Section 36(6)(a) and the provisions of Section 215 of the Criminal Procedure Law.” Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria provides that ‘every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence.’ The Courts have, in the interpretation of the laws on criminal prosecution, laid down some essential requirements that must be satisfied for there to be a valid arraignment and these are (a) the defendant must be placed before the Court unfettered unless the Court shall see cause otherwise to order; (b) the charge or information must be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court; (c) it must be read and explained to him in the language he understands; (d) the accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the defendant is entitled by law to service of a copy of the information the Court is satisfied that he has in fact not been duly served – Kajubo Vs State (1988) 1 NWLR (Pt 73) 721, Olabode Vs State (2009) 11 NWLR (Pt. 1152) 254, Temitope Vs State (2011) 6 NWLR (Pt. 1243) 289 and Olowoyo Vs State (2012) 17 NWLR (Pt. 1329) 346. PER ABIRU, J.C.A.

PLEA OF GUILTY OF AN OFFENCE

Additionally, the Courts have stated that where an accused is called to plea to an offence and he pleads guilty, the plea shall be recorded by the court as nearly as possible in the words used by him and if satisfied that he intended to admit the truth of all the essentials of the offence of which he has pleaded guilty, the Court may in its discretion convict and sentence him thereof, but where the offence charged is punishable with death then the Judge shall enter a plea of not guilty on behalf of the accused – Sharfal Vs State (1992) 7 NWLR (Pt. 255) 510, Olaolu Vs Federal Republic of Nigeria (2015) 3 NWLR (Pt. 1498) 133.
Arraignment is not a matter of technicality and it is a very important initial step in the trial of a person on a criminal charge. It is very critical and foundational to the successful prosecution and possible conviction of an accused defendant. A criminal trial anchored on a faulty arraignment process is tantamount to erecting a house on a faulty and sandy foundation and it will invariably collapse no matter how well the trial was conducted. The requirements for a valid arraignment are to ensure that an accused person gets a fair trial and he is not railroaded into jail. They are not merely cosmetic or mere semantics. They are provisions considered necessary to ensure that the accused defendant understands and appreciates what is being alleged against him, to which he is required to make a plea. The requirements cannot be waived, ignored or presumed. They are very important and mandatory and there must be clear evidence on the records that they were fully or substantially complied with. The Courts have held that failure to comply with the conditions for a valid arraignment renders the whole trial a nullity –Kajubo Vs State SUPRA, Yahaya Vs State (2002) 3 NWLR (Pt 754) 289, Okeke Vs State (2003) 15 NWLR (Pt 842) 25, Amala Vs State (2004) 12 NWLR (Pt 1038) 30, Solola Vs State (2005) 11 NWLR (Pt 937) 460, Lufadeju Vs Johnson (2007) 8 NWLR (Pt 1037) 535 and Dada Vs State (2013) 2 NWLR (Pt 1337) 59. PER ABIRU, J.C.A.

INGREDIENTS FOR THE OFFENCE OF CULPABLE HOMICIDE

The Appellant was charged with culpable homicide punishable with death and he was alleged to have killed of one Hassan Abba Habib by cutting him with a cutlass on the head and several parts of the body with the knowledge that death would be the probable consequence of his act. It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Sabi Vs State (2011) 14 NWLR (Pt. 1268) 421, Obi Vs State (2013) 5 NWLR (Pt. 1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt. 1391) 298. PER ABIRU, J.C.A.

STANDARD OF PROOF OF CRIMINAL OFFENCE

It must, however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke Vs State (2013) 16 NWLR (Pt 1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt but nothing short will suffice.” PER ABIRU, J.C.A.

ADMISSIBILITY OF A DYING DECLARATION

The question of the admissibility of a statement made a deceased qualifying as a dying declaration is covered by the provision of Section 40 of the Evidence Act. Section 40(1) of the Evidence Act 2011 states that a statement made by a person as to the cause of death, or as to any of the circumstances of the events which resulted in his death, in cases in which the cause of that person’s death comes into question is admissible where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hope of recovery. Section 40 (2) says that the said statement shall be admissible whatever may be the nature of the proceeding in which the cause of death comes into question. This provision is a codification of the common law doctrine of dying declaration and the rationale for which was stated in 1789 by Eyre C B in R Vs Woodcock (1789) 1 Leach 500 at 502 thus:
“The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.”
A dying declaration is a statement made by a person who may die from injury received from a person whom the deceased person identified as the person who inflicted on him the injury that eventually caused his death. The conditions under which such statement is admissible under our Evidence Act are (i) the person who made the statement must have died before the statement, written or verbal, is tendered in evidence; (ii) the statement must relate to the cause of death of the person who made the statement; (iii) The statement is admissible in whatever proceeding in which the cause of death comes into question: it is not only relevant in a trial for murder or manslaughter of the maker of the statement; and (iv) the maker of the statement must believe himself to be in the danger of approaching death, though he may have hopes of recovery; in other words he need not have lost all hope of life or be in settled hopeless expectation of death – Mome Garba & Ors Vs R (1959) SCNLR 402, Okoro Vs State (2007) 2 NWLR (Pt. 1019) 530, Okoro Vs State (2012) 4 NWLR (Pt. 1290) 351, Ezeugo Vs State (2013) 9 NWLR (Pt. 1360) 508, Adamu Vs State (2014) LPELR 24025(CA), Orisadipe Vs State (2015) LPELR 41717(CA), Rev King Vs State (2016) 6 NWLR (Pt. 1509) 529. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Borno State delivered in Suit No BOHC/MG/CR/99/CT. 12/2017 by Honorable Justice A. B. Kumaila on the 16th of August, 2018.

The Appellant was charged with culpable homicide punishable with death pursuant to Section 221(b) of the Penal Code Law of Borno State. The Appellant was alleged to have killed one Hassan Abba Habib on or about 20:00hrs of the 12th of September, 2017 in Galdimari Ward in Biu Local Government Area of Borno State by cutting him with a cutlass on his head and on different parts of his body with knowledge that death was a probable consequence of his actions. The charge was read to the Appellant and he pleaded Guilty and the lower Court recorded his plea verbatim and proceeded thereafter to record a Not Guilty plea for him because of the nature of the offence.

The matter proceeded to trial and in the course of which the Respondent called four witnesses in proof of its case, while the Appellant called two witnesses and also recalled one of the prosecution witnesses in proof of his defence.

The records of appeal also show that the lower Court conducted two trials-within-trial on the voluntariness of the confessional statements of the Appellant. At the conclusion of trial and after the rendering of final addresses by Counsel to the parties, the lower Court entered judgment wherein it found the Appellant guilty as charged and sentenced him to death by hanging.

The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal dated the 5th of November, 2018 and containing eight grounds of appeal against. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 21st of March, 2019 on the 2nd of May, 2019 and the brief of arguments was deemed properly filed and served by this Court on the 16th of September, 2019. In response, Counsel to the Respondent filed a brief of arguments dated the 5th of July, 2019 on the 8th of July, 2019 and the brief of arguments was also deemed properly filed and served on the 16th of September, 2019. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments

as their submissions in the appeal.

Counsel to the Appellant distilled seven issues for determination in the appeal and these were:
i. Whether the arraignment, trial, conviction and sentence of the Appellant by the learned trial Judge were not a nullity due to the fact that a plea of guilty was recorded by the Court before subsequently entering a plea of not guilty.
ii. Whether Exhibits B and C were proper evidence to be relied on by the trial Court when same were obtained before the offence charged was committed as well as obtained under duress and force.
iii. Whether Exhibit D was properly accepted as evidence by the trial Court when same was prepared without autopsy or post mortem examination conducted on the deceased.
iv. Whether the learned trial Judge was right to have held that no medical report was necessary to prove the death of the deceased person.
v. Whether the learned trial Judge was right to have held that the evidence of the first prosecution witnesses was not hearsay and qualified as a dying declaration.
vi. Whether the case of the Respondent could be said to have been proof beyond reasonable doubt.

vii. Whether the Respondent could secure conviction for an offence that was not investigated.

Counsel to the Respondent adopted the seven issues for determination as formulated by the Counsel to the Appellant. A read through the seven issues for determination vis-a-vis the eight grounds of appeal contained on the notice of appeal shows that Counsel to the Appellant formulated an issue for determination from practically every ground of appeal. It is trite that issues for determination in an appeal are not synonymous with the grounds of appeal and should not be formulated to coincide with the number of grounds of appeal. Grounds of appeal allege the complaints of errors of law and fact or mixed law and fact against the judgment on appeal while issues for determination are short questions distilled from one or more grounds of appeal and they are meant to guide the arguments or submissions to be advanced in support of the said grounds of appeal.
Hence, the Courts have stated that it is undesirable to formulate an issue in respect of each ground of appeal – Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt. 109) 352, Anie Vs Uzorka (1993) 8 NWLR (Pt 309) 1,

Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt. 945) 392 and Akpan Vs Udoh (2008) 3 NWLR (Pt. 1075) 590. The purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed. An issue for determination is simply a combination of facts and circumstances including the law applicable thereto which when decided one way or the other by the court affects the fate of the appeal – Ali Vs Osakwe (2011) 7 NWLR (Pt 1245) 68, Nadabo Vs Dabai (2011) 7 NWLR (Pt.1245) 155, Daniel Tayar Transport Enterprises Nigeria Company Ltd Vs Busari (2011) 8 NWLR (Pt. 1249) 387. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye Vs Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt. 199) 501 and G. Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt 945) 392.Now, it is trite law that an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment answers the following questions positively: (i) did the prosecution prove the essential

elements of the offence; (ii) was the case proved beyond reasonable doubt; and (iii) was the evaluation of the evidence of the prosecution and defence witnesses properly done – Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360. In this wise, and reading through the records of appeal, particularly the notes of evidence, the contents of the exhibits, the final addresses of Counsel to the parties and the judgment of the lower Court, as well as the notice of appeal and the arguments of Counsel in this appeal, it is the view of this Court that there are only two issues for determination in the appeal and these are:
i. Whether the arraignment, trial, conviction and sentence of the Appellant by the learned trial Judge were not a nullity due to the fact that a plea of guilty was recorded by the Court before subsequently entering a plea of not guilty.
ii. Whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offence of culpable homicide punishable with death against the Appellant beyond reasonable doubt.

All the arguments of Counsel to both parties shall be considered and

resolved under these two issues for determination. The two issues for determination will be considered seriatim.

Issue One
Whether the arraignment, trial, conviction and sentence of the Appellant by the learned trial Judge were not a nullity due to the fact that a plea of guilty was recorded by the Court before subsequently entering a plea of not guilty?

In arguing the first issue for determination, Counsel to the Appellant reproduced the record of the arraignment of the Appellant wherein the lower Court recorded verbatim the response of the Appellant that he was guilty when the charge was read to him, before proceeding to record Not Guilty as his plea because the charge was one punishable with death. Counsel stated that this amounted to lower Court recording two pleas for the Appellant and that this was in clear violation of Section 187 of the Criminal Procedure Code of Borno State which he said sought to protect the presumption of innocence of the Appellant and he reproduced the provisions of the section. Counsel stated that the way and manner the lower Court recorded the plea of the Appellant deprived the Appellant the right to fair hearing

as enshrined in Section 36(5) of the Constitution of the Federal Republic of Nigeria (as amended) and that the consequence of such violation of the procedure for arraignment laid down by law is that the whole process was null and void and that this nullified the entire trial, conviction and sentence.

Counsel stated that Counsel to the Respondent capitalized on the breach of procedure by the lower Court when he relied and placed emphasis on the oral plea of guilty of the Appellant in the course of his final address and that the lower Court too, in the course of summarizing that the case of the parties in the judgment, referred to the oral plea of guilty and that the implication of these references was that the subsequent plea of Not Guilty recorded by the lower Court was inconsequential. Counsel stated that the Courts have held in several cases that strict adherence to the conditions laid down by law during arraignment was essential and failure thereof renders the whole trial a nullity and he referred to the cases of Adeniji Vs The State (2001) 5 SCNJ 571 and Idemudia Vs The State (1999) 7 NWLR (Pt 610) 202, amongst others. Counsel urged the Court to

resolve the first issue for determination in favour of the Appellant.

In response, Counsel to the Respondent reiterated the requirements for a valid arraignment of an accused person as laid down by the Courts in Adamu Vs State (2017) 14 NCC 189 and Kajubo Vs The State (1988) 1 NWLR (Pt 73) 721 and agreed that compliance with the requirements was mandatory as they ensured that the accused person’s right to fair hearing are protected and that non-compliance rendered the whole proceedings a nullity. Counsel reproduced the provisions of Section 187 (1) and (2) of the Criminal Procedure Code and stated that the lower Court fully complied with the requirements of a valid arraignment in the instant case as shown on the face of the record proceedings and that though the Appellant pleaded Guilty to the charge, the Court noted the plea but recorded Not Guilty as his plea in accordance with Section 187 (2) of the Criminal Procedure Code and he referred to the cases of Nkie Vs FRN (2015) 11 NCC 179 and Adamu Vs State (1986) 3 NWLR (Pt 32) 856. Counsel urged the Court to discountenance the submissions of Counsel to the Appellant and to resolve the first

issue for determination in favour of the Respondent.

Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria provides that ‘every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence.’ The Courts have, in the interpretation of the laws on criminal prosecution, laid down some essential requirements that must be satisfied for there to be a valid arraignment and these are (a) the defendant must be placed before the Court unfettered unless the Court shall see cause otherwise to order; (b) the charge or information must be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court; (c) it must be read and explained to him in the language he understands; (d) the accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the defendant is entitled by law to service of a copy of the information the Court is satisfied that he has in fact not been duly served – Kajubo Vs State (1988) 1 NWLR (Pt 73) 721,

Olabode Vs State (2009) 11 NWLR (Pt. 1152) 254, Temitope Vs State (2011) 6 NWLR (Pt. 1243) 289 and Olowoyo Vs State (2012) 17 NWLR (Pt. 1329) 346.
Additionally, the Courts have stated that where an accused is called to plea to an offence and he pleads guilty, the plea shall be recorded by the court as nearly as possible in the words used by him and if satisfied that he intended to admit the truth of all the essentials of the offence of which he has pleaded guilty, the Court may in its discretion convict and sentence him thereof, but where the offence charged is punishable with death then the Judge shall enter a plea of not guilty on behalf of the accused – Sharfal Vs State (1992) 7 NWLR (Pt. 255) 510, Olaolu Vs Federal Republic of Nigeria (2015) 3 NWLR (Pt. 1498) 133.
Arraignment is not a matter of technicality and it is a very important initial step in the trial of a person on a criminal charge. It is very critical and foundational to the successful prosecution and possible conviction of an accused defendant. A criminal trial anchored on a faulty arraignment process is tantamount to erecting a house on a faulty and sandy foundation and it will

invariably collapse no matter how well the trial was conducted. The requirements for a valid arraignment are to ensure that an accused person gets a fair trial and he is not railroaded into jail. They are not merely cosmetic or mere semantics. They are provisions considered necessary to ensure that the accused defendant understands and appreciates what is being alleged against him, to which he is required to make a plea. The requirements cannot be waived, ignored or presumed. They are very important and mandatory and there must be clear evidence on the records that they were fully or substantially complied with. The Courts have held that failure to comply with the conditions for a valid arraignment renders the whole trial a nullity –Kajubo Vs State SUPRA, Yahaya Vs State (2002) 3 NWLR (Pt 754) 289, Okeke Vs State (2003) 15 NWLR (Pt 842) 25, Amala Vs State (2004) 12 NWLR (Pt 1038) 30, Solola Vs State (2005) 11 NWLR (Pt 937) 460, Lufadeju Vs Johnson (2007) 8 NWLR (Pt 1037) 535 and Dada Vs State (2013) 2 NWLR (Pt 1337) 59.

The question is – whether the lower Court ensured compliance with the requirements of a valid arraignment in this case?

The record of the proceedings on the day of arraignment is contained in the additional records of appeal transmitted to this Court on the 11th of December, 2018 and it read thus:
“F. H. Mohammed: The matter is slated to today for arraignment and we are ready to proceed.
Defence Counsel: We are ready.
Prosecution Counsel: We apply that the charge be read to the accused person for the purpose of hearing down his plea.
Charge is read and content is interpreted to the accused person by Court Registrar Hamisu Galadima in Hausa Language and the accused appears to have perfectly understood the content of the charge against him.
Accused: I have heard the charge read out against me and I plead guilty.
However, this case being one punishable with death a plea of not guilty is hereby entered for him.”
Counsel to the Appellant conceded that the Appellant was placed before the lower Court unfettered and that the charge was explained to him to the satisfaction of the lower Court by the Court Registrar and in the language that the Appellant understood and that the Appellant was called to enter a plea and which the Appellant did.

The grouse of Counsel to the Appellant was with the manner the plea of the Appellant was recorded by the lower Court. As can be seen from the above excerpt, the lower Court recorded verbatim the plea of Guilty as entered by the Appellant before going ahead to state that since the charge was one punishable with death, it would enter a plea of Not Guilty for the Appellant. Counsel contended that the lower Court should not have recorded the plea of the Appellant verbatim at all and should only have entered the plea of Not Guilty. Counsel stated that this manner of the recording of the plea of the Appellant was not in compliance with the requirements for a valid arraignment and that it vitiated the entire arraignment and rendered the entire proceedings a nullity.
With respect to Counsel, this is mere wishful thinking. The law is that there is nothing wrong with such manner of recording of the plea of an accused defendant and that it was perfectly in line with the requirements of a valid arraignment. In Chukwu Vs State (1994) 3 NWLR (Pt 335) 640, the learned trial Judge recorded in his notes thus:
“Charge read and explained to the accused who

understands same and pleads: ‘I murdered him by right’. Note: Court enters a plea of ‘Not Guilty’.”
The Supreme Court held that there was nothing irregular if the plea of an accused to a charge is recorded verbatim by the trial Court and that this will, apart from other things, be fair to all concerned, the prosecution and the defence, and will prevent any controversy in future about what exactly the accused said in response to the request to him to plead to the charge. Olatawura, JSC, in his contributory judgment on pages 655-656 paras E-B commented thus:
“It has been the practice of Court in all trials especially in a criminal trial for the presiding Judge to record as much as possible words used by an accused person when the charge has been read and explained to the accused person. In this appeal before us the recording of proceedings conforms with the practice of Court and procedure…
It is an essential feature of trials (Civil and Criminal) that words used by a witness or an accused person (as in this case) be recorded verbatim except when such words are irrelevant to the proceedings. To paraphrase

may sometimes lead to a miscarriage of justice when evidence is being reviewed. Our present strenuous and toilsome manner of recording evidence notwithstanding, justice will be defeated if we do not adhere strictly to verbatim recording more so where we do not record proceedings on tape.”
The suggestion of Counsel to the Appellant that the verbatim recording of the Appellant’s plea of guilty played on the mind of the lower Court in convicting of the offence charged is baseless and speculative. There is no evidence or anything to support the suggestion in the entire records of appeal and there is nowhere in the judgment where the lower Court said that it arrived at its decision because of the plea of Guilty made by the Appellant. The records show that matter went to full trial and that the lower Court rigorously engaged the evidence led by the parties in coming to its decision in the matter. It is trite law that a Court of law does not act on speculations or conjectures – Long-John Vs Black (1998) 5 SCNJ 68, Orhue Vs NEPA (1998) 7 NWLR (Pt 577) 187. In Ivienagbor Vs Bazuaye (1999) 9 NWLR (Pt 620) 555, Uwaifo, JSC made the point that

“… speculation is a mere variant of imaginative guess which, even where it appears plausible, should never be allowed by a Court of law to fill any hiatus in the evidence before it.”
The contentions of Counsel to the Appellant on the first issue for determination are not well-founded and are totally misconceived. The issue for determination is resolved in favor of the Respondent.

Issue Two
Whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offence of culpable homicide punishable with death beyond reasonable doubt?

In arguing the issue for determination, Counsel to the Appellant stated that the lower Court was in error to have placed reliance on the purported confessional statements of the Appellant, admitted as Exhibits B and C after the conduct of trials within trial, as they were obtained by duress and force. Counsel stated that the two confessional statements were made several days before the offence charged, culpable homicide punishable with death, was committed and that while the offence was alleged to have been committed on the 22nd of

September, 2017, the two confessional statements were made on the 15th of September, 2017 and 14th of September, 2017. Counsel stated that the two statements were inadmissible to prove the offence charged because a confession is a post, and not a pre-action of the person charged with a crime and that there is nothing like anticipatory or pre-emptory confession and he referred to the case of FRN Vs Bar Minas (2017) 1 NWLR (Pt. 1585) 177.

Counsel stated that to constitute a confession within the meaning of Section 28 of the Evidence Act, a crime must have been committed and an accused person charged with the offence before he can be said to have confessed to committing same and that offence of culpable homicide punishable with death only occurs where the death of a human being has occurred, and not before. Counsel stated that as the time of the making of Exhibits B and C, the deceased person had not died and that the confessional statements would have been relevant if the Appellant was charged with causing grievous bodily hurt and the lower Court ought to have used the confessional statements for this lesser offence and he referred to the cases of

Bogobiri Vs The State (2017) 18 NWLR (Pt. 1597) 247 and Mbachu Vs The State (2018) 17 NWLR (Pt. 1649) 325.

Counsel contended that the Respondent did not prove the offence as charged against the Appellant in that the charge read that the offence was committed on the 12th of September, 2017 and there was evidence before the lower Court that the deceased was alive as at that date and only died on the 22nd of September, 2017 and that as such there was no proof that the death of a human being occurred on the date stated in the charge. Counsel stated further that the Police failed to investigate the charge of culpable homicide punishable with death against the Appellant because the deceased was alive at the time the Appellant was arrested and that the complaint against him at that time was for grievous hurt and that despite being in their custody, the Police did not bother to record any further statement from the Appellant after the death of the deceased. Counsel stated that this failure to further investigate the Appellant for culpable homicide created a gap in the case of the Respondent and left doubts which ought to be resolved in favour of the Appellant and he

referred to the cases of Osuagwu Vs The State (2016) 16 NWLR (Pt. 1537) 31 and Aigbadion Vs The State (2000) 7 NWLR (Pt. 666) 686, amongst others.

In his further argument, Counsel to the Appellant conceded that medical evidence of cause of death is unnecessary in homicide cases where the cause of death is obvious as in where death was instantaneous or nearly so but stated that in the present case, there was evidence on record that the deceased was being treated for the injuries sustained and had made some recovery and was moving around and receiving visitors before he died and that the lower Court was thus in error when it found that medical evidence of cause of death was unnecessary in these circumstances. Counsel conceded that the Respondent tendered as Exhibit D a medical certificate of death issued by the Medical Doctor who attended to the deceased, but stated that the document fell short of requirements as no autopsy examination was carried out before the medical certificate was issued and that this fact was admitted by the Medical Doctor. Counsel stated that the third defence witness, a specialist from the University of Maiduguri, gave expert evidence

that Exhibit D should not have been issued without the performing of an autopsy as it stated that the primary cause of death was head injury. Counsel stated that the Respondent did not call an expert witness to counter the evidence of the third defence witness and that this meant that it accepted the evidence of the witness and he referred to the case of Abelegah Vs The State (2018) 18 NWLR (Pt. 1650) 172. Counsel urged the Court to find that the Respondent failed to prove the cause of death and to link same to the act of the Appellant.

It was also the contention of Counsel to the Appellant that lower Court was in error in treating the evidence led by the first prosecution witness as to what the deceased told him that the injuries he suffered were inflicted by the Appellant as dying declaration and as an exception to the hearsay rule. Counsel referred to the cases of Akpan Vs The State (1992) 6 NWLR (Pt 248) 439 and Ezekwe Vs The State (2018) 14 NWLR (Pt 1639) 209 in asserting that a dying declaration is a statement made by a deceased who was in apprehension of imminent death or at the point of death and who dies within minutes of making the statement.

Counsel stated that this was not the situation in the present case as the deceased who made the statement related by the first prosecution witness made some recovery and was alive for up to ten days after he made the statement before dying and that the lower Court ought to have treated the evidence of the witness as hearsay evidence.

Counsel concluded his arguments by urging the Court to resolve the second issue for determination in favour of the Appellant and he prayed the Court to find merits in the appeal, set aside the judgment of the lower Court, quash the conviction of the Appellant and to discharge and acquit the Appellant accordingly.

In response, Counsel to the Respondent referred to the provision of Section 28 of the Evidence Act and the case of Nkie Vs FRN (2015) 11 NCC 179 on the definition of what amounts to a confession and he reiterated the six way test that a confessional statement should be subjected to as laid out by the Court inIliyasu Vs The State (2015) 11 NCC 300 and asserted, relying on the case of Emeka Vs State (2001) 6 SC 227, that where an accused defendant raises an objection to his confessional statement on the ground of

involuntariness, a trial Court is obligated to conduct a trial within trial to ascertain the veracity of the confessional statement. Counsel stated that Exhibits B and C in the instant case were the confessional statements of the Appellant recorded under the word of caution on the 14th and 15th of September, 2017 wherein he admitted causing the grievous hurt that the deceased was on admission in hospital for at the time and which eventually led to the death of the deceased on the 22nd of September, 2017. Counsel stated that the deceased was well and healthy and that it was the injuries inflicted on him that led to his admission in the hospital and where he was until he died and that as such rule governing death which occurs within a year and a day of offending act was applicable to this case.

Counsel stated that the testimonies of the first to the fourth prosecution witnesses showed that the chain of causation of the death of the deceased was unbroken and it showed clearly that it was the act of the Appellant that caused the death. Counsel stated that the Appellant objected to the admissibility of Exhibits B and C on the ground of involuntariness and that

this compelled the lower Court to conduct trials within trial before admitting them in evidence. Counsel stated that outside the confessional statements, there was ample evidence in the testimonies of the first prosecution witness and of the fourth prosecution witness, who was recalled as second defence witness, and in Exhibit ADW1 supporting the conviction of the Appellant. Counsel referred to the case of Al-Mustapha Vs State (2017) 14 NCC 460 in reiterating the three required ingredients to be proved in a case of culpable homicide and stated that it was clear that it was the act of the Appellant that caused the death of the deceased. Counsel stated that the deceased died within ten days of the injuries inflicted on him and while he was on admission in the hospital and that there was no intervening cause or factor and there was thus no obligation on the Police to take fresh or further statement from the Appellant to prove the case against him. Counsel urged the Court to hold that the confessional statements were properly admitted and relied upon by the lower Court.

In his further submission, Counsel to the Respondent referred to the case of

Oguno Vs State (2012) 7 NCC 449 in reiterating the principle that it is not in all cases that medical report is necessary to prove the cause of death and that the Court can properly infer the cause of death from the evidence and circumstances of a case. Counsel stated that the fourth prosecution witness, who was recalled as second defence witness, was the Medical Doctor, who admitted the deceased to the hospital and treated him until his death ten days later and that he issued a medical report, admitted as Exhibit DW1, and a death certificate, admitted as Exhibit D, where he stated clearly that the primary and the secondary causes of the death of the deceased was head injury. Counsel stated that neither the Appellant nor his Counsel objected to the tendering of Exhibit D and the witness asserted under cross-examination that the contents of Exhibit D were true and that as such Appellant cannot be heard to challenge the contents of Exhibit D in this appeal. Counsel stated that outside Exhibit D, there was sufficient credible evidence in Exhibit DW1 and the oral testimony of the prosecution witnesses and the second and third defence witnesses to support the conviction of the Appellant.

Counsel to the Respondent referred to the provisions of Sections 39 and 40 of the Evidence Act and the case of Okereke Vs State (2016) 13 NCC 318 on what amounts to dying declaration and stated the conditions for the admission of dying declarations as that (i) the maker of the statement should have died before evidence of his statement is tendered; (ii) the statement written or oral must be as to the cause of death of the maker of the statement or as to any of the circumstances of the events which resulted in his death; (iii) the declaration may be contained or recorded in a book, document or any record whatever; and (iv) the declaration is relevant and admissible in any proceedings in which the cause of that person’s death comes into question. Counsel stated that the testimony of the first prosecution witness on what the deceased told him satisfied the conditions and was not disputed, challenged or discredited under cross examination and was properly relied upon by the lower Court to convict the Appellant and he referred to the case of Nkebisi Vs State (2010) 41 NSCQR 934.

Counsel stated that the onus on the Respondent was to

prove the offence against the Appellant beyond reasonable doubt and not beyond all shadows of doubt and he referred to the case ofJua Vs State (2010) 2 NSCQR 762. Counsel stated that Respondent adduced sufficient to discharge the onus on it and in proving the guilt of the Appellant and he urged the Court to resolve the second issue for determination in favour of the Respondent. Counsel concluded his arguments by urging the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court, inclusive of the conviction and sentence passed on the Appellant.

The Appellant was charged with culpable homicide punishable with death and he was alleged to have killed of one Hassan Abba Habib by cutting him with a cutlass on the head and several parts of the body with the knowledge that death would be the probable consequence of his act. It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act

of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Sabi Vs State (2011) 14 NWLR (Pt. 1268) 421, Obi Vs State (2013) 5 NWLR (Pt. 1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt. 1391) 298.

that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke Vs State (2013) 16 NWLR (Pt 1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt but nothing short will suffice.”

On the first ingredient of the offence of culpable homicide punishable with death, it was not in contest between the parties that the person referred to in the charge against the Appellant as Hassan Abba Habib is dead. All the witnesses, both the prosecution and the defence

witnesses, testified to the death of the deceased and the Respondent tendered a medical certificate of death dated the 26th of September, 2017 issued by one Dr Ephraim Obot, the fourth prosecution witness (also recalled as the second defence witness) confirming the death of the deceased as Exhibit D. Further, the finding of the lower Court on the issue in the judgment has not been appealed against by the Appellant.

On the second ingredient of the offence of whether it was the act of the Appellant that caused the death of the deceased person, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant – Udosen Vs State (2007) 4 NWLR (Pt. 1023) 125, Oche Vs State (2007) 5 NWLR (Pt. 1027) 214, Ekpoisong Vs State (2009) 1 NWLR (Pt. 1122) 354, Iliyasu Vs State (2014) 15 NWLR (Pt. 1430) 245. This point was made by the Supreme Court in Oforlete Vs State (2000) 12 NWLR (Pt 631) 415 thus:
“In every case where it is alleged that death has resulted from the act of a person, a causal link

between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence.” It is the proof of this second ingredient that connects an accused defendant to the death of a deceased; it is what establishes the guilt.

It is settled law that in a criminal trial the Prosecution may prove the guilt of the accused defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive – Emeka Vs State (2001) 14 NWLR (Pt. 734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt. 1066) 300, Mbang Vs State (2010) 7 NWLR (Pt. 1194) 431, Dele Vs State (2011) 1

NWLR (Pt. 1229) 508, Ilodigwe Vs State (2012) 18 NWLR (Pt. 1331) 1.

It is obvious from the records of appeal that the Respondent relied on both confessional statement and circumstantial evidence in proving the guilt of the Appellant and that it was on the basis of these that the lower Court convicted and sentenced the Appellant. The Respondent tendered two confessional statements. The first confessional statement was tendered by one Sergeant Joel Hassan, an Investigating Police Officer with the State Criminal Investigation Department, Maiduguri, and it was dated the 15th of September, 2017. The records show that Counsel to the Appellant objected to the admissibility of the statement on the ground of involuntariness – that the Appellant was subjected to serious beating before the statement was obtained. Consequent on the objection, the lower Court conducted a trial within trial and during which parties called evidence and addressed the Court. The Appellant gave evidence in the trial within trial that he was not tortured or beaten and that the Police only promised to help him to regain his freedom if he spoke the truth. The lower Court delivered a

Ruling debunking the objection and it admitted the confessional statement as Exhibit B. The statement showed on its face that the Appellant was transferred to the State Criminal Investigation Department, Maiduguri, on the 15th of September, 2017 at around 4pm after his arrest in Biu and that he volunteered the statement on the same day between 5.20pm and 5.55pm.

The second confessional statement was tendered by one Sergeant Isa Yusuf, an Investigating Police Officer with the Biu Division of the Nigerian Police Force and it was dated the 14th of September, 2017. The records show that Counsel to the Appellant also objected to the admissibility of the statement on the ground of involuntariness – that the Appellant was forced to sign the statement. Consequent thereon, the lower Court conducted another trial within trial and during which parties called evidence and addressed the Court. The Appellant gave contradictory evidence on his alleged torture in his evidence in chief and under cross-examination in the trial within trial and by reason of which the lower Court overruled the objection in a considered Ruling and admitted the confessional statement as Exhibit C.

In both confessional statements, the Appellant admitted that due, to a pending grievance he had against the deceased, he went to the residence of the deceased on the 12th of September, 2017 at around 8pm with a cutlass and that the deceased had just parked his car and was about locking the gate when he attacked the deceased with the cutlass and that he cut the deceased on the head, his left hand and both of his legs with the cutlass and that he thereafter ran off as the deceased was shouting and he threw away the cutlass.

One of the complaints of the Counsel to the Appellant in this appeal is that the lower Court ought not to have relied on the confessional statements, Exhibits B and C, as they were obtained under duress and force. The records show that the Appellant did not appeal against the findings of fact made by the lower Court on the issue of the voluntariness of both confessional statements in the two Rulings delivered in the trials within trial, either at the time the Rulings were delivered or in the final notice of appeal. And no issue was formulated or argument put forward by the Counsel to the Appellant in this appeal to

challenge those findings. Findings of fact made by a trial Court in a trial within trial are based on the credibility of witnesses after watching their demeanour and an Appellate Court should not upset such findings – Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360, Abiodun Vs State (2013) 9 NWLR (Pt 1358) 138. Further, it is settled that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties – SCC (Nigeria) Ltd Vs Anya (2012) 9 NWLR (Pt 1305) 213, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Nwaogu Vs Atuma (2013) 11 NWLR (Pt 1364) 117. Thus, the decisions of the lower Court on the voluntariness of the confessional statements remain binding and conclusive between the parties on the issue. They cannot be re-examined by this Court – Alakija Vs Abdulai (1998) 6 NWLR (Pt 552) 1 and Opara Vs Dowel Schlumberger (Nigeria) Ltd (2006) 15 NWLR (Pt 1002) 342.

Counsel to the Appellant also contended that the lower Court should not have treated the confessional statements as admissible evidence because they were made on the 14th and 15th of September,

2017 while the charge of culpable homicide for which the Appellant was charged occurred on the 22nd of September, 2017 when the deceased died and that as such they amounted to pre-action or anticipatory confession, which is not recognizable in law. Now, it is settled law that cases are decided on their peculiar facts and circumstances – Dingyadi Vs INEC (2011) 10 NWLR (Pt 1255) 347 at 391, Dankwambo Vs Abubakar (2015) LPELR 25716(SC).
The case of the Respondent against the Appellant in the present case was that the Appellant inflicted grievous bodily injury on the deceased on the 12th of September, 2017 and which caused the death of the deceased on the 22nd of September, 2017, ten days thereafter. The confessional statements, Exhibits B and C, were tendered in proof of the fact that it was the Appellant that inflicted the injuries on the deceased and as to the nature of the said injuries. It is an accepted principle of common law in criminal trials that an accused defendant can be charged for murder in respect of a death that occurs months after the infliction of injuries on the deceased – Aiguoreghian Vs State (2004) 3 NWLR (Pt 860) 367,

Folorunsho Vs State (2014) LPELR 23127(CA). The confessional statements thus constituted relevant evidence in proof of the case of the Respondent against the Appellant, and having established that they were voluntarily made, they were admissible evidence – Alufohai Vs State (2015) 3 NWLR (Pt 1445) 172, State Vs Gwangwan (2015) 13 NWLR (Pt 1477) 600.

Counsel to the Appellant further complained of an error in the charge preferred against the Appellant. Counsel stated that the charge read that the Appellant committed the offence of culpable homicide on the 12th of September, 2017, while the evidence led showed that the deceased was alive as at that date and only died on the 22nd of September, 2017. Counsel stated that the difference in the date on the charge and actual date the deceased died as established in evidence was fatal to the case against the Appellant. It is settled that errors or defects on the face of a charge will be treated as trivial once it is not shown that they were of such a nature that could mislead the accused defendant as to nature of the case against him and of the defence expected of him – Ogbomor Vs State (1985) 1 NWLR (Pt. 2) 223,

Ikpa Vs State (2018) 4 NWLR (Pt. 1609) 175. The records of appeal shows that the Appellant was represented by Counsel from the date of arraignment and all through the trial and at no time did the Appellant or his Counsel object to the charge or give any inclination that they were confused as to the date the death of the deceased occurred. Moreover, the records show that this contention was not raised or argued in the lower Court; a further confirmation of the fact that the said error on the face of charge had no effect whatsoever on the Appellant throughout the trial and it was thus inconsequential.

The records of appeal show that the lower Court did not rely on only the confessional statements in making its findings against the Appellant. Notwithstanding the fact that the Appellant did not testify in his defence and did not retract the confessional statements, the lower Court found corroborative evidence for the contents of the confessional statements in the testimony of the first prosecution witness, one Mohammed Abba Adamu. The witness gave evidence that he went to the hospital to see the deceased on the day of the incident, 12th of September, 2017,

and that the deceased was in the operating theater when he got there and was unconscious when he was brought out. He testified that the deceased later regained consciousness and recognized him, but was in continuous pain and that it was in this state that the deceased informed him of what happened; that he came back from work, parked his car inside his compound and was about locking the gate when the Appellant attacked him with a cutlass and cut him and he fell down. The lower Court held what the deceased told the witness constituted a dying declaration by the deceased in the circumstances and it found that the evidence of the witness was an exception to the hearsay rule and was thus admissible and that it supported the case of the Respondent against the Appellant.

Counsel to the Appellant berated the lower Court for finding that the evidence of the witness constituted a dying declaration by the deceased, instead of being hearsay evidence, and for relying on the evidence. Counsel suggested that for evidence of a deceased person to constitute a dying declaration, it must have been made at a time the deceased was in imminent fear of death and believing he

was going to die and the deceased must have died within a short time of the declaration. Counsel stated that the deceased in the present case was alive for ten days after making the declaration and that as such the evidence of the witness did not qualify as a dying declaration by the deceased.

in 1789 by Eyre C B in R Vs Woodcock (1789) 1 Leach 500 at 502 thus:
“The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.”
A dying declaration is a statement made by a person who may die from injury received from a person whom the deceased person identified as the person who inflicted on him the injury that eventually caused his death. The conditions under which such statement is admissible under our Evidence Act are (i) the person who made the statement must have died before the statement, written or verbal, is tendered in evidence; (ii) the statement must relate to the cause of death of the person who made the statement; (iii) The statement is admissible in whatever proceeding in which the cause of

death comes into question: it is not only relevant in a trial for murder or manslaughter of the maker of the statement; and (iv) the maker of the statement must believe himself to be in the danger of approaching death, though he may have hopes of recovery; in other words he need not have lost all hope of life or be in settled hopeless expectation of death – Mome Garba & Ors Vs R (1959) SCNLR 402, Okoro Vs State (2007) 2 NWLR (Pt. 1019) 530, Okoro Vs State (2012) 4 NWLR (Pt. 1290) 351, Ezeugo Vs State (2013) 9 NWLR (Pt. 1360) 508, Adamu Vs State (2014) LPELR 24025(CA), Orisadipe Vs State (2015) LPELR 41717(CA), Rev King Vs State (2016) 6 NWLR (Pt. 1509) 529.
The belief in the danger of approaching death is subjective and not objective. The person making the declaration must believe himself to be in danger of approaching death and it is not something that can be inferred from the opinion of third parties. In the case of Okoro Vs State (2012) 4 NWLR (Pt. 1290) 351 at 396 Paragraphs E-G Ngwuta, J.S.C. explained the point thus:
“I do not think that the law requires that an affidavit deposed to by the deceased before the Holy See to prove that

the deceased is in a hopeless expectation of imminent death as a result of injuries inflicted on him. In order to actualize the dual aims of our criminal justice delivery system of ensuring that neither the guilty escapes punishment nor the innocent suffers, each case must be decided on its own peculiar facts and circumstance.
In this respect, the nature and gravity of the injury and the part of the body on which it is inflicted ought to be considered in determining whether what the deceased said in relation to the cause of his injury from which he died later was dying declaration or not. It should be necessary to prove by expression of the deceased, that he made the statement in fear of impending death. It could be inferred from the nature of the words or cause of death without further express evidence that the deceased believed he was dying.”
In other words, it is irrelevant that the deceased did not die immediately or shortly after he made the statement. What is relevant is the state of mind of the deceased at the time he made the statement and which is inferable from the nature and gravity of the injury and the part of the body it was

inflicted and the words used by the deceased. In the present case, the evidence showed that the deceased suffered deep cuts on his head, hand and both legs from a cutlass and was in going in and out of consciousness and was in severe pains when he made the statement to the first prosecution witness. It cannot be contested, in the circumstances, that the statement made by the deceased qualified as a dying declaration, as found by the lower Court, and it indeed corroborated the confessional statements of the Appellant.

The finding of the lower Court that the Respondent led credible evidence to prove that it was the Appellant that inflicted the grievous injuries on the deceased by cutting him on the head, hand and both legs with a cutlass cannot be faulted by this Court. And this takes us to the second limb of the second ingredient of the offence of culpable homicide; whether the Respondent led credible evidence to prove that it was the act of the Appellant that caused the death of the deceased.

The facts of the case of the Respondent were that sequel to the severe injuries inflicted on the deceased by the Appellant, the deceased was rushed to the

hospital and was admitted and treated and he died in the hospital ten days thereafter. The medical doctor who admitted the deceased and treated him until his death testified as the fourth prosecution witness and he gave evidence of the nature of the injuries suffered by the deceased and the treatment administered to him until his death and he certified that the primary cause of death were the cuts inflicted by the Appellant on the deceased with a cutlass, particularly the cut inflicted to the head of the deceased, and he tendered a medical certificate of death as Exhibit D. The witness was recalled as the second defence witness and he tendered the medical file of the deceased as Exhibit DW1 and this included a medical report of the treatment given to the deceased from his arrival at the hospital until his death. The witness testified that he was not a pathologist and that he did not carry out an autopsy of the corpse before releasing it for burial and that his finding as to cause of death was due to his clinical assessment of the deceased and not guesswork.

The Respondent called one Dr. Abba Bukar Zarami, a Consultant in Anatomic Pathology and Forensic

Medicine with the University of Maiduguri, as his third defence witness. The witness gave evidence on the processes and procedures for carrying out post mortem examinations of deceased bodies and issuing of autopsy reports. The witness looked at Exhibit D, the medical certificate of death and he testified that it did not meet the World Health Organization (WHO) standard as it was written stating the primary and secondary causes of death without an autopsy report having been first issued by a pathologist explaining the manner and circumstances of death. Under cross examination, the witness stated that a Medical Doctor can issued a medical certificate of death based on his clinical findings and that it is not a must for an autopsy to be conducted to know the cause of death.

Counsel to the Appellant contended that since the deceased died ten days after the attack by the Appellant, and not immediately upon being attacked or contemporaneously thereafter, and in which case the cause of death could be inferred from the attack, there was a need for medical evidence of death. Counsel argued that Exhibit D and the evidence of the fourth prosecution witness did not

meet the required standard as there was no post mortem examination carried out and no autopsy report issued before Exhibit D was prepared and that as such the Respondent did not lead credible evidence to link the cause of death to the Appellant.

In deliberating on these contentions, the lower Court reproduced the evidence of the fourth prosecution witness and stated thus:
“The above description was the severity of the injuries sustained by the deceased. Furthermore, he testified that the patient was kept in the hospital and treatment continued and all the symptoms that came up were attended to. Unfortunately, he died on the 22nd. That the patient was not discharged within the period of the 10 days and all complaints made by the deceased were due to the injuries he sustained. That the cause of death from his findings was due to the head injury. There was no intervening cause from the testimony of the doctor.
From the above testimony of PW4, the deceased was severely injured and since admission until his death was in the hospital and was being attended to in relation to the injuries sustained and there was never a time he recovered and was

ready for a discharge. The PW4 said the head injury caused his death and I hold that the causal link has not been broken.”

The lower Court thereafter reiterated the established principle in murder trials that where there is sufficient evidence on the cause of death, medical evidence could be dispensed with and it considered the evidence of the third defence witness and continued thus:
“What is very important with regards to the testimony of the DW3 is that on cross examination he stated that it is not a must to conduct an autopsy to know the cause of death. This means the cause of death can be known without autopsy. This therefore suggests that despite exhibit ‘D’ may not have complied with the requirements of World Health Organization format of writing a death report, it is a sufficient evidence of cause of death. The difference between an autopsy report and medical report or certificate of cause of death does not make any difference to the court. Exhibit D is therefore not discredited by the testimony of the DW3, and the courts have never preferred autopsy reports to medical certificate of cause death issued by a medical

doctor. The only requirement for it to be sufficient evidence is that what caused the death must be stated in the medical certificate or report…
Exhibit D has categorically stated that the cause of death is the head injury. There was no intervening cause mentioned. I hold that Exhibit D is sufficient evidence of cause of death of the deceased person despite that the procedure of post mortem or autopsy is not followed before producing it.”

Counsel to the Appellant has urged this Court to find fault with these deliberations of the lower Court and with its findings. Counsel stated that there was evidence that the deceased had made some recovery and was moving about before the sudden turnaround in his health condition and death and that this suggested that is death was caused by something other than the injuries inflicted on him by the Appellant.

The argument of Counsel touches upon the principle of causation in our criminal jurisprudence. Causation is the causal relationship between conduct and result; it provides a means of connecting conduct, complete with actus reus, with the resulting harm. Around the terminology of causation is

proximate cause, legal cause and direct cause, terms which are used synonymously. The expressions “immediate cause”, “effective cause” and causa causans are used to denote the last link in the chain of causation. It is settled law that where there is evidence that a deceased person was hale and hearty before the occurrence of an offending act and death is instantaneous or soon thereafter and there is no break in the chain of events from the time of the act that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to that act, even without medical evidence of the cause of death – Essien Vs State (1984) 3 SC 14, Azu Vs State (1993) 6 NWLR (Pt 299) 303, Aiguoreghian Vs State (2004) 3 NWLR (Pt 860) 367, Akpa Vs State (2008) 14 NWLR (Pt 1106) 72.
Thus, in Adamu Vs Kano Native Authority (1956) 1 FSC, it was proved that the accused stabbed the deceased twice in the stomach and in the back and the deceased died two days later. There was no medical evidence of death and the Supreme Court held that it was proper for the Court to infer the cause of death from the circumstances. The Court said:

“Cases frequently occur, here and elsewhere, in which the Court is asked to infer the cause of death from the circumstances, because of the lack of medical evidence, and in cases such as this, it is perfectly proper to do so.”
The rationale for this position, which is founded on sound logic and common sense, is that since that act is the most proximate event to the death of the deceased, it should be regarded as the deciding factor even where it may be taken as merely contributory to the death of the deceased – Uyo Vs Attorney General, Bendel State (1986) 1 NWLR (Pt 17) 418, Jeremiah Vs State (2012) 14 NWLR (Pt 1320) 248.
In other words, what is important in holding an accused criminally responsible for the death of a deceased is that there is no break in the chain of causation between the act of the accused and the death of the deceased. The duration between the suspected act of the death and the death is really not fundamental. Accordingly, an accused could be guilty of the offence of murder even if the duration is long, in so far as the Court comes to the conclusion correctly that the act of the accused caused the

death of the deceased. Conversely, even if the period between the act and the death of the deceased is proximate, a Court can still not find the accused guilty if there is more than one possible cause of death. What is essential is that there must be evidence that the act of the accused resulted in the death of the deceased – Aiguoreghian Vs State (2004) 3 NWLR (Pt. 860) 367 at 419 C-E. And in making its findings, medical evidence of cause of death is not a sine qua non, and where one is tendered, it only constitutes part of the evidence that the trial Court is enjoined to evaluate in coming to a decision – Bwashi Vs The State (1972) 6 SC 93, Oamhen Vs State (1984) 4 SC 1, Enewoh Vs State (1990) 4 NWLR (Pt. 145) 469, Onwumere Vs State (1991) 4 NWLR (Pt. 186) 428, Onyejekwe Vs State (1992) 2 NWLR (Pt 230) 444, Lanre Vs State (2018) LPELR 45156(SC).
Largely for reasons of policy, the Courts have adopted a particularly strict approach in cases where the alleged break in the chain of causation involves the conduct of medical professionals, as suggested by the Appellant in the instant case. They are third parties who are intervening in a fully

informed manner, and whose conduct is generally regarded as insufficient to break the chain of causation. In the case of R Vs Smith (1959) 2 All ER 193, in the course of a fight between soldiers of different regiments, D stabbed V twice with a bayonet and one of the stab wounds pierced a lung and caused haemorrhage. One of V’s comrade, trying to carrying V to the medical reception station, twice tripped and dropped him, and at the medical reception station the medical officer, who was trying to cope with a number of other cases, gave V a treatment which was later found out might have affected his chances of recovery, D’s conviction for murder was upheld and the Court explained at page 199 thus:
“It seems to the Court that, if at the time of death the original wound is still an operating cause and a substantial cause, then death can properly be said to be the result of the wound, albeit some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second

cause is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.”
In Queen Vs Eguabor (No 2) (1962) 1 All NLR 541, the Appellant stabbed the deceased with a spear in the foot and the deceased died three days later. The doctor who treated the deceased described the wounds and stated that, in his opinion, death was due to gangrene which followed the injury in the leg and that, in such cases, a gangrenous infection could arise in spite of medical treatment. The trial Court held that since the wounds were severe and since the Appellant intended to cause grievous bodily harm to the deceased at the time he wounded him, the offence was murder and it convicted the Appellant. The Appellant’s appeal on the ground of causation was dismissed by the Supreme Court and the Court stated that where a wound is caused by a person who assaults another with intent to cause grievous bodily harm, and where notwithstanding medical treatment and without extrinsic cause, the wound which is still an operating and substantial cause, becomes gangrenous, resulting in death of the deceased, the cause of

death is the wound inflicted, and the assailant is guilty of murder.
In Effanga Vs The State (1969) All NLR 331, due to a disagreement, the Appellant dealt a machete blow on the right hand of the deceased and the deceased later bathed the wound with warm water and after some days his right hand was swollen and he died twelve days later. The doctor who performed the post-mortem examination testified that in his opinion death was caused by shock, haemorrhage and toxaemia from wound sepsis and that probably if the deceased had had medical treatment in time his life could have been saved. The appeal of the Appellant against his conviction was dismissed by the Supreme Court and the Court held that as the death of deceased flowed from the wound inflicted on him by the Appellant albeit that the wound became septic and caused death, the trial Judge was right in coming to the conclusion that it was the act of the Appellant that caused the death of the deceased and that it was immaterial that the death of the deceased could have been prevented by proper care or treatment.
In R Vs Malcherek (1981) 2 All ER 422, M stabbed his wife in the abdomen and she was

treated for the wound and a few days later she collapsed in the hospital. She subsequently had surgery to remove a blood clot during which her heart stopped beating for thirty minutes before it was restarted by the doctors again. This thirty minute period had caused the victim to suffer irretrievable brain damage and as a result, she was placed on a life support, but a day later, the life support machines were disconnected as there was no chance of her condition improving. The medical treatment that was given was considered normal and in line with approved medical practice. M was convicted and his appeal on the ground of causation was dismissed. The Court of Appeal ruled that the fact that the treatment was in line with medical opinion did not absolved the defendant of his guilt as there was no evidence that the original injuries inflicted stopped being the operative cause of death.
In R Vs McKechnie (1992) 94 Cr App Rep 51, D beat up an elderly man, V, who suffered very serious head injuries and remained unconscious for weeks. Doctors discovered that V had a duodenal ulcer but decided that it would be too dangerous to operate because he was still

unconscious from the beating and V died as a result of the ulcer bursting. D was convicted and his appeal on the issue of causation was dismissed and the Court of Appeal ruled that D was still the cause of V’s death since the doctors’ decision not to operate was due to the effects of the initial beating.
Thus, for medical treatment to constitute a supervening act which breaks the chain of causation, the medical treatment provided must be so independent of the accused defendant’s act and so potent in causing the death as to render the accused defendant’s act insignificant – R Vs Chesire (1991) 1 WLR 844, Aiguoreghian Vs State (2004) 3 NWLR (Pt. 860) 367, Tegwonor Vs State (2008) 1 NWLR (Pt 1069) 630, Ochi Vs State (2018) LPELR 45064(CA).
In the present case, the Respondent led unchallenged evidence of the events that occurred between the time the deceased was attacked by the Appellant and his death. The fourth prosecution witness gave evidence of the nature and severity of the injuries inflicted on the deceased by the Appellant and of the treatment regime given to the deceased from the date of the injuries up to the time

of death and that all complaints of the deceased throughout were attributable to the injuries inflicted by the Appellant and he concluded from his clinical findings that the cause of death were the injuries inflicted by the Appellant. There was nothing in the entire evidence led showing or suggesting either that the treatment given to the deceased was not in line with approved medical practice or of the presence of an intervening or superintending cause which broke the chain of causation between the act of the Appellant and death of the deceased. There was no evidence that the injuries inflicted on the deceased by the Appellant had, at any time, stopped being the operative and substantial cause of death. The third defence witness admitted that a Medical Doctor who treated a deceased person was competent to issue a medical certificate of death stating the cause of death from his clinical findings without the need for an autopsy.
The finding of the lower Court that the Respondent led credible evidence in proving that it was the act of the Appellant that caused the death of deceased was on very firm ground and cannot be impugned by this Court. The evidence

of the third defence witness on the difference between a medical certificate of death and an autopsy report was distracting and completely irrelevant. It is evident from the records of appeal that the Respondent led credible evidence to establish the second ingredient of the offence of culpable homicide punishable with death against the Appellant.

This takes us to the third requirement of the offence of culpable homicide punishable with death is – whether the Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. This is what is known as “specific intention” necessary for sustaining a murder charge. In dealing with this requirement, the lower Court stated in the judgment thus:
“On the intent of the accused, a man is presumed to intend the natural consequence of his act… Where a man just inflicts several machete cuts on the deceased when the deceased had not even seen him or anticipated such assault, the only inference the Court or any other reasonable man will draw is that the accused intended the death of his victim or he cared not if

the victim dies.”

The lower Court thereafter reproduced the evidence of the fourth prosecution witness on the nature and severity of the injuries inflicted on the deceased, and continued:
“Where a man just suddenly appears and inflicts the injuries described as above on an unsuspecting victim all at the same time, the inference could only be that the accused intended death of his victim and that his acts are pre-meditated. The cutlass used is no doubt a lethal weapon and the part of the body struck especially the head is a vital part of the body. It is in evidence that the head injury caused the deceased’s death. So the act of the accused is certainly intentional, aimed at killing the deceased and I so hold.”

It is settled law that in order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of proximity

of the victim with the lethal weapon used by the accused – Iden Vs State (1994) 8 NWLR (Pt. 365) 719. Thus, in Ejeka Vs State (2003) 7 NWLR (Pt. 819) 408, where the appellant stabbed the deceased with a jack knife at a fragile part of the body such as the heart, the Supreme Court held that this clearly explained that the appellant’s intention was to cause grievous injury to the deceased.
In the instant case, it cannot be contested that by inflicting deep cuts on the deceased with a cutlass on the head, hand and both legs, the Appellant intended to cause the deceased grievous bodily harm. That could have been the only intention of the Appellant. It is the law that a person intends the natural consequences of his action and if there was an intention to cause grievous bodily harm and death results, then the defendant must be held culpable for the offence of murder – Nwokearu Vs State (2010) 15 NWLR (Pt. 1215) 1, Njoku Vs State (2013) 2 NWLR (Pt. 1339) 548, Afosi Vs State (2013) 13 NWLR (Pt. 1371) 329. This Court thus cannot fault the finding of the lower Court that the evidence led by the Respondent proved the third ingredient of the offence of

culpable homicide punishable with death beyond reasonable doubt.

This Court finds and holds that the Respondent led credible evidence to establish the offence of culpable homicide punishable with death against the Appellant beyond reasonable doubt. The second issue for determination in this appeal is also resolved in favour of the Respondent.

There is no merit in the appeal and same is hereby dismissed. The judgment of the High Court of Borno State delivered in Suit No BOHC/MG/CR/99/CT.12/2017 by Honorable Justice A. B. Kumaila on the 16th of August, 2018 convicting the Appellant of the offence of culpable homicide punishable with death, and sentencing him accordingly, is hereby affirmed. This shall be the order of this Court.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read in advance the judgment just delivered by my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with his reasoning and conclusions and in consequence I also dismiss the appeal for lacking in merit.
I abide by the consequential orders made in the lead judgment.

BOLOUKUROMO MOSES UGO, J.C.A.: I agree.

Appearances:

A. Airadion with him, A. A. Shehu For Appellant(s)

No appearance for the Respondent For Respondent(s)