MATI MUSA v. THE STATE (2014)

MATI MUSA v. THE STATE

(2014)LCN/7440(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 20th day of August, 2014

CA/K/65/C/2014

RATIO

EVIDENCE: BURDEN AND STANDARD OF PROOF; BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
It is settled law that in a criminal trial, the burden of proof lies throughout, upon the prosecution to establish the guilt of the accused beyond reasonable doubt and never shifts. Even where an accused beyond reasonable doubt and never shifts. Even where an accused in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden. Failure to discharge this burden renders the benefit of doubt in favour of the accused. See IGABELE V. STATE (2006) 6 NWLR (PT 975)100. per. UWANI M. ABBA AJI, J.C.A.

CRIMINAL LAW: THE OFFENCE OF CULPABLE HOMICIDE; THE INGREDIENT OF THE OFFENCE OF CULPABLE MURDER PUNISHABLE WITH DEATH UNDER THE PENAL CODE AND THE ONUS OF PROVING THE INGREDIENTS
For the Prosecution to succeed, it must establish the ingredients of the offence adumbrated in the said section of the Penal Code.
For avoidance of doubt, Section 221 of the Penal Code, Laws of Katsina state of Nigeria 1991 states as follows:
“Except in the circumstances mentioned in Section 222 Culpable Homicide shall be punished with death-
(a) if the act which the death caused is done with the intention of causing death; or
(b) if the doer of the act knew or had reasons to know that death will be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.”
Flowing from this provision is the obvious fact that for the Prosecution to secure a conviction under the above mentioned Section, it must establish the following ingredients:
a) that the death of a human being has actually taken place;
b) that such death has been caused by the accused;
c) that the act was done with the intention of causing death; or that it was done with the intention of causing bodily injury, as:
i) the accused knew or had reason to know that death would be the probable and not only likely consequence of his act;
ii) the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.
All the ingredients must be proved or must co-exist before a conviction could be secured. Failure to establish any of the ingredients would be fatal to the case of the Prosecution.
See the following cases:
IGABELE V. STATE (2006) 9 NWLR (PT 984) 155
OCHEMAJE V. STATE (2008) 15 NWLR (PT 1109) 57;
AKPA V. STATE (2008) 14 NWLR (PT 1106) 72;
ISMA’IL V. STATE (2011) 17 NWLR (PT 1277) 601.

EVIDENCE: BURDEN OF PROOF; WHEN IS THE BURDEN OF PROVING THE INGREDIENT OF LINKING THE CAUSE OF DEATH OF THE DECEASED TO THE ACCUSED PERSON
The burden of linking the cause of death of the deceased to the Accused person is not discharged by leading evidence to say that the accused person confessed to committing the crime. It is necessary for the prosecution to prove beyond reasonable doubt what caused the death and not the fact of death only. See PIUS ODOCK & ORS v. STATE (2007) 7 NWLR (PT 1033) 369. per. UWANI M. ABBA AJI, J.C.A.

EVIDENCE: PROVING CULPABLE HOMICIDE; HOW TO DETERMINE QUESTION WHETHER DEATH WAS A LIKELY OR PROBABLE CONSEQUENCE OF THE ACT OF THE ACCUSED

In OKONJI V. THE STATE (1987) NSCC 291, the apex Court, in considering this question had this to say, per Nnamani JSC, at pages 301-302 thus:
“In the High Court the learned Chief Judge after examining the provisions of Section 221 (b) of the Penal Code and after referring to the case of Umaru Gwandu v. Gwandu N.A. (1962) All. N.L.R. 545 held that “at the time the accused stabbed the deceased on his neck and stomach, the accused knew or had reason to know that death would be the probable and not only likely consequence of his act. Lamba Kumbin vs Bauchi N.A. (1963) N.M.L.R. 49 “The Court of Appeal agreed with this. Maidama, J.C.A. in rejecting this defence observed,
“Whether death is likely or a probable consequence of a person’s act is a question of degree. If a weapon is used the question will generally resolve itself by the consideration of the weapon used, the part of the deceased’s body where it was struck and the amount of force used. A thin stick is not as dangerous as a thick stick; a stick is not as dangerous as a sword, knife, other lethal weapon; a blow struck on a limb is not as dangerous as a blow struck on a head; a hard blow is more dangerous than a light one. All these matters would have to be considered in determining whether the accused person has knowledge of the consequence of his act.”
“We think the distinction between “likely” and “probable” can be explained as follows: The act of a person is “likely” to cause death if death was something which he, as a reasonable man, knew might well happen. In applying the ‘reasonable man’ test, the court must take into consideration the background, education and worldly knowledge of the individual.”

EVIDENCE: PROVING CULPABLE MURDER; HOW TO DETERMINE WHETHER THE ACCUSED INTENTIONALLY CAUSED THE DEATH OF THE DECEASED
In the case of ATIKU V. STATE (2010) 9 NWLR (PT 1199) 241, cited by the Appellant, the Court held thus:
“A determination as to whether an accused knew or had reason to know that death was the probable consequence of his act depends on facts which should be disclosed by the evidence adduced by the prosecution. Such facts include:-
a) the type or nature of the weapon used in the commission of the crime;
b) the part of the body of the deceased struck or attacked;
c) the nature of the injuries inflicted on the deceased;
d) physical and health state of both the accused person and the deceased at the material time;
e) if the deceased was treated at a hospital and died on admission, a report or certificate by the medical officer on the treatment and death.”
See also the case of MICHAEL V. STATE (2008) 13 NWLR (PT 1104) 361 where at page 377, the Court held:
“In a charge of culpable homicide, the nature of the weapon used, its weight and size are in the circumstances of a case essential in determining whether the conviction should be one of culpable homicide punishable with death or not.”
In the instant case, I am unable to decide the intention of the Appellant without seeing the stick and considering its size and weight. It seems to me therefore that this brings into focus the doubt which must necessarily arise in the circumstances of this case as to the weapon used.
I find also that the prosecution has not established sufficient evidence and facts in line with the principles laid down in ATIKU V. STATE (supra). per. UWANI M. ABBA AJI, J.C.A.

CRIMINAL PROCEDURE: DOUBT IN THE MIND OF THE COURT IN CRIMINAL MATTER; WHETHER WHERE THERE IS DOUBT IN THE MIND OF THE COURT IN CRIMINAL MATTER, IT OUGHT TO BE RESOLVED IN FAVOUR OF THE ACCUSED PERSON
It is trite law that where there is doubt in the mind of the Court in a criminal matter, it ought to be resolved in favour of the accused person. See the case of CHUKWU V. STATE (1996) 7 NWLR (PT 463) 682. per. UWANI M. ABBA AJI, J.C.A.

COURT: DUTY OF THE COURT; THE DUTY OF THE COURT IN A TRIAL OF MURDER TO CONSIDE ALL THE DEFENCES RAISED BY THE EVIDENCE
Now, it is settled law that in a trial of murder it is the duty of the court to consider all the defences raised by the evidence whether the person charged specifically put up such defences or not. See SAMPSON NKEMJI UWEKWEGHINYA V THE STATE (2005) 9 NWLR (PT 930) 227. And no matter how weak or stupid a defence raised by an accused may appear, it must be properly and adequately considered. It is the duty of the court to consider the defence of provocation once there is evidence even if not raised specifically.
In the case of EDOHO V. STATE (2010) 14 NWLR (PT.1214) 651 at 681-682, it was held thus:
“In all cases attracting capital punishment, it is incumbent upon the trial court to consider all the defences put up by the accused, express or implied, in the evidence before the court. No matter the level of the defences whether they are full of figments of imagination, fanciful, replete with porous lies or even doubtful, the court must not be wary to give them due consideration. Thus, if, from the totality of evidence, a particular defence avails an accused person in a criminal matter, he should be given the benefit of that defence notwithstanding the fact that he did not specifically raise it. However, the trial court is only under obligation or duty to consider such defences open to an accused person as disclosed or supported by the evidence on the printed record” See also OMOLEYE V. STATE (2014) 3 NWLR (PT 1394) 232 at 333-334. per. UWANI M. ABBA AJI, J.C.A.

EVIDENCE: GIVING EVIDENCE AT TRIAL; WHETHER AN ACCUSED SHALL NO BE COMPELLED TO GIVE EVIDENCE AT THE TRIAL, THE BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS AND WHEN THE BURDEN OF PROOF SHIFTS
It is trite that by virtue of the provisions of Section 36(11) of the 1999 constitution as amended, “no person who is tried for a criminal offence shall be compelled to give evidence at the trial.” It is also the law that the burden of proof in a criminal case rests squarely on the prosecution and this burden of proof must be proof beyond reasonable doubt. See Section 138 of the Evidence Act, 2011.
However, by the decision in NASIR V. STATE, this burden shifts to the accused person when the Prosecution establishes the guilt of the accused. per. UWANI M. ABBA AJI, J.C.A.

CRIMINAL LAW: THE DEFENCE OF PROVOCATION; THE EFFECT OF THE DEFENCE OF PROVOCATION THAT IS UPHELD AND HOW TO ESTABLISH PROVOCATION
The defence of provocation is as provided for by Section 222 (1) of the Penal Code, as well as Section 318 of the Criminal Code.
Section 222(1) of the Penal Code provides as follows:-
“Culpable homicide is not punishable with death if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”
Section 318 of the Criminal Code provides as follows:
“When a person unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”
In considering Section 318 of the Criminal Code, Ademola CJN in the case of OBAJI V. THE STATE (1965) 1 ALL NLR 269 at 275 opined thus:
“As we have pointed out earlier Section 318 of the Criminal Code must be read together with section 283 of the Criminal Code which defines provocation and for the purposes of section 318 provocation includes (1) any wrongful act or insult (2) of such a nature when done to an ordinary person as is likely (a) to deprive him of the power of self control, and (b) to induce him to assault the person by whom the act or insult is done or offered.
To avail himself of the defence in a charge of murder under section 318 of the Criminal Code, the accused must have done the act for which he is charged (i) in the heat of passion, (ii) this must have been caused by sudden provocation and (iii) the act must have been committed before there is time for his passion to cool. There can be no doubt that the attitude of the Nigerian courts has been to interpret Sections 283 and 318 of the Criminal Code as impliedly including the made of resentment or, in other words, that the retaliation must be proportionate to the provocation offered. In this connection, and in consonance with this interpretation by the Nigerian courts the doctrine has developed to the “behaviour of the average man in the community to which the accused belongs” See R. v. James Adekanmi (1943) 17 NLR 99 at pp.101 and 102.”
It is also settled law that an act of revenge, not done in the heat of passion cannot successfully form the basis of a defence of provocation See Chukwu v. The State (1966) NMLR 81; or where the accused had sufficient time to cool down before doing the act complained of, see Ashimiyu v The State (1982) 10 SC 1. Provocation which could reduce what otherwise amounted to murder to manslaughter is a legal concept made up of a number of a co-existing elements. It is of paramount importance in the consideration of this concept that the act is held out as a natural and justifiable reaction of the provoked person and was not done in self revenge but in ventilation of a natural, sudden and contemporaneous feeling of anger caused by the circumstances of the occasion. See Akang v State (1971) 1 All NLR 46.”
See also the more recent case of SHANDE V. STATE (2005) 12 NWLR (PT 939) 301 as well as the case of AFOSI V. STATE (2013) 13 NWLR (PT 1371) 329, where it was held that for an accused person to avail himself of the defence of provocation, he has to establish by evidence the following conditions to wit:-
1) that the act of provocation is grave and sudden
2) that the accused lost self control, actual and reasonable;
3) the degree of retaliation by the accused person must be proportionate to the provocation offered.

JUSTICES

ZAINAB A. BULKACHUWA Justice of The Court of Appeal of Nigeria

OFR Justice of The Court of Appeal of Nigeria

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

Between

MATI MUSA Appellant(s)

AND

THE STATE Respondent(s)

UWANI M. ABBA AJI, J.C.A. (Delivering the Leading Judgment): The Appellant herein, was charged with the offence of culpable homicide punishable with death under Section 221 of the Penal Code, Laws of Katsina State of Nigeria, 1991 and was arraigned before the High Court of Katsina State, holden at Dutsinma (hereafter called the Trial Court), on a one count charge as follows:-
“That you Mati Musa (alias Baso) of Gerawa Village Dutsinma Local Government Area, on or about the 2nd of May, 2004 at about 1030 hours at a well situated near the house of one Rabo Goje of the some address, committed culpable homicide punishable with death in that you used a stick and hit one Salisu Yusuf on his head with the intention of causing his death and which caused his death, and you thereby committed an offence punishable under Section 221 of the Penal Code.”
The Appellant pleaded not guilty to the charge.

The facts, as can be gleaned from the Records, are, that the Appellant, a farmer and a rearer on the 2nd of May, 2004 went to a well to fetch water and there he met Salisu Yusuf, (the deceased), Amadu Yusuf (PW1), and Audu Yusuf (PW4) laughing and making jest of him by calling him a black dog. This annoyed him and he therefore beat the deceased with a stick on the head.
At the trial, the Prosecution in proof of its case called six witnesses, PW1-PW6 and tendered Exhibits 1A, 1B, 2A, 2B, 3, 4A and 4B
Exhibit 1A is the Hausa version of the Appellant’s confessional Statement recorded by PW5 on 6/05/2014;
Exhibit 1B is the English Translation of Exhibit 1A, recorded on the same date;
Exhibits 2A and 2B are two photographs bearing the name of Salisu Yusuf, the deceased;
Exhibit 3 is a medical report signed by the doctor and dated 4/05/2011;
Exhibit 4A is the Hausa version of the Appellant’s confessional statement recorded by PW5 on 2/5/2004;
Exhibit 4B is the English translation of Exhibit 4A, recorded on the same date.
The Appellant in his defence testified as DW1. He called no other witness.
After the close of evidence and final address, the Trial Court, coram Hon. Justice I.B. Ahmed, in a considered judgment delivered on the 5th of December, 2012 found the Appellant guilty as charged. At page 89 of the Record, the Trial Court held inter alia:
“From the analysis of the testimony of all the prosecution witnesses and the exhibits tendered, the court is left in no doubt that the ingredients of the offence of culpable homicide punishable with death have been finally proved beyond reasonable doubt as required by law against the accused person. Also, as the accused person could not defend himself on the charge and could not avail himself on any of the mitigating circumstances stated under Section 222 of the Penal Code, this court has no option but to convict him as charged.”
The Appellant was consequently sentenced to death by hanging.

The Appellant is dissatisfied with this decision and with the leave of this Honourable Court granted on the 4th of November, 2013 appealed against the judgment on the 14th of November, 2013 upon five grounds of appeal. The grounds of appeal shorn of their particulars are hereby reproduced.
GROUND 1
The Learned Trial Judge erred in law and misapplied the case of Nasir v. State (1999) NWLR (Pt. 589) 87 when he stated that:
“With these pieces of evidence, I am left in no doubt that the prosecution has established prima facie case against the Accused Person for the offence of culpable homicide punishable with death under Section 221 of the Penal Code. However, where the prosecution has established a primo facie case of the offence charged, the burden of proving his innocence now shifts to the Accused Person as provided for under Sections 137, 138 and 139 of the Evidence Act, 2011.”
GROUND 2
The Learned Trial Judge erred in law when he held that:
“Since what his witness(Accused Person) told the Court in his testimony was contradicted by the testimony of PW1, PW3 and PW4 in the absence of any other evidence in support of what DW1 told the court, it would be presumed that what DW1 told the court is not true.”
GROUND 3
The Learned Trial Judge erred in law and misdirected himself when he held:
“Moreover, the defence counsel who was in court and led this witness to give his testimony and created the impression that the witness was provoked into his sudden action in hitting the deceased with his stick did not help matter by his failure tom address the court this and other issues in defence of the accused person. The prosecution had similarly been denied the opportunity to equally address the court in response to that of the defence counsel so as the court in arriving at a just decision of the case.
By this conduct, both the accused person and his counsel have foiled to establish the innocence or raise any defence to the accused person’s action. The accused person has not availed himself of any of the mitigating circumstances stated under section 222 of the Penal Code.”
GROUND 4
The Learned Trial Judge erred in law when he held that:
“I reject the defence of the accused person that he acted under provocation in hitting and subsequently killing the deceased.”
GROUND 5
The learned trial judge erred in law when he concluded that:
“From the analysis of the testimony of all the prosecution witnesses and the exhibits tendered, the court is left in no doubt that the ingredients of the offence of culpable homicide punishable with death have been finally proved beyond reasonable doubt as required by law against the accused person. Also as the accused person could not defend himself on the charge and could not avail himself of any of the stated mitigating circumstances under section 222 of the Penal Code, this court has no option but to convict him as charged.”
In line with the practice and Rules of this Court, parties filed and exchanged briefs of arguments. In the Appellant’s brief of argument settled by Okechukwu Nwaeze Esq., the following three issues were distilled from the five grounds of appeal for determination, to wit:
1. Whether the Prosecution successfully proved all the ingredients of the offence of culpable homicide beyond reasonable doubt as against the Appellant in the lower court to warrant the learned trial Judge convicting and sentencing the Appellant to death by hanging. (Distilled from Grounds 5 and 2)
2. Whether going by the provisions of the law, the learned trial Judge was right when he relied on the failure of the Appellant to file a written address and refused to consider the defence raised by the Appellant at the trial.
(Distilled from Grounds 3 and 4)
3. Whether the learned trial Judge rightly applied the case of Nasir vs. The State (1999) 2 NWLR (Pt.589) 87 when he held that the prosecution has established prima facie case of the offence charged, therefore the burden of proving the accused person’s innocence now shifts to the accused person. (Distilled from Ground 7).”
The Respondent, in its brief of argument settled by S.B. Umar (Mrs.), the learned Director of Public Prosecution (DPP) Katsina State, adopted the three issues raised for determination in the Appellant’s brief of argument.
At the hearing of the appeal on the 3rd of June 2014, learned counsel for the Appellant, Okechukwu Nwaeze Esq.,Court to allow the appeal, set aside the conviction of the Appellant and to discharge and acquit him.
The learned D.P.P., S.B. Umar (Mrs.) also adopted and relied on the Respondent’s brief of argument dated 2/6/2014 and filed on the 3/6/2014 and urged the court to dismiss the appeal and uphold the conviction and sentence passed on the Appellant by the trial Court.
Since both parties are ad idem on the issues formulated, I also endorse them as the issues calling for determination in this appeal.

ISSUE 1
“Whether the Prosecution successfully proved all the ingredients of the offence of culpable homicide beyond reasonable doubt against the Appellant in the lower court to warrant the learned Trial Judge convicting and sentencing the Appellant to death by hanging.”
For the Appellant, it is submitted on this issue that the ingredients to successfully establish the guilt of the crime of culpable homicide punishable with death are as follows:
a) that the death of the deceased has actually taken place;
b) that such death was caused by the act of the accused;
c) that the act was done with the intention of causing death or that it was done with intention of causing bodily injury as the accused knew that death would be the probable and not only likely consequence of his act;
d) that the accused knew or had reason to know that death would be the probable and not only likely consequence of any bodily injury which the act intended to cause.
Reliance was placed on the following authorities:
OCHEMAJE V. STATE (2008) 15 NWLR (PT 1109) 57;
AKPA V. STATE (2008) 14 NWLR (PT 1106) 72;
ISMA’IL V. STATE (2011) 17 NWLR (PT 1277) 601.It is submitted that these ingredients must co-exist and where one of them is absent or tainted with some doubt, the charge cannot be said to have been proved.

Counsel for the Appellant further maintained that the Prosecution in criminal case can prove its case through the following ways:
1. the confessional statement of the accused;
2. circumstantial evidence;
3. evidence of an eye witness.
He relied on the following cases:
MAIGARI V. STATE (2013) 17 NWLR (PT 1384) 425;
IGBABELE V. STATE (2004) 15 NWLR (PT896) 314;
AGBOOLA V. STATE (2013) 11 NWLR (PT 1366) 619.
Learned counsel for the Appellant referred to pages 15-16 of the Record and submitted that it is not in dispute that the death of one Salisu Yusuf actually occurred and that the trial Judge answering the question relied on the evidence of PW1, PW2 and PW3 as contained in pages 11-13, 15-16 of the Record.
It is submitted that both PW1 and PW3 testified to the fact that they did not see the Appellant hit the deceased with a stick, that they only heard a sound and as such these witnesses cannot be classified as eye witnesses.
It is further submitted that the evidence of DW1 (the Appellant) was not controverted during cross examination as none of the prosecution witnesses told the court why the Appellant hit the deceased with the stick and left the well.
Learned counsel for the Appellant stated that the trial court having held that the evidence of PW2 was hearsay, PW4 was the only witness who testified that he saw the Appellant hit the deceased with the stick.

The further view of learned counsel for the Appellant is that since the evidence of PW4 was contradicted by the testimony of PW3, who stated under cross examination that when they heard a hit, they all looked around, this means that even PW4 never saw the Appellant hit the deceased with the stick.
These cases were relied on:
YUSUF V. OBASANJO (2005) 18 NWLR (PT 956) 96;
BUHARI V. OBASANJO (2005) 2 NWLR (PT. 910) 241;
AWUSE V. ODILI (2005) 16 NWLR (PT 952) 416.
Learned counsel thus concluded that the prosecution has failed to establish that the deceased died from an act of the Appellant.
It is the submission of learned counsel for the Appellant that the trial Judge, in establishing the third ingredient of the offence relied on the confessional statements of the Appellant admitted in evidence as Exhibits 1 and 4. He submitted that even though a court of law can convict on the confessional statement of an accused, it is desirable to have outside the confessional statement some evidence which makes it probable that the confession was true. He relied on the case of STEPHEN v. STATE (2013) 8 NWLR (PT 1355) 153.
It is submitted that before a trial court can rely on a confessional statement to convict an accused person, it must consider the principle guiding the evaluation of confessional statements as enumerated in the case of SHURUMO V. STATE (2010) 16 NWLR (PT 1218) 65 at 119.
The following cases were also relied on:
AKPA V. STATE (2007) 2 NWLR (PT 1019) 500 at 527;
DAWA V. STATE (1980) 8-11 SC 236;
UDOFIA V. THE STATE (1984) 12 SC 139.

It is also the view of learned counsel for the Appellant that none of the prosecution witnesses corroborated the fact that the Appellant came with the stick to the well and that there is no evidence corroborating the facts stated in the confessional statement.
Counsel submitted that the facts contained in Exhibits 1 and 4 are inconsistent with the evidence of the prosecution and that since the confessional statement failed the evaluation test, it ought not to have been relied upon by the learned trial Judge, more so as there is no independent evidence outside the purported confessional statement confirming the veracity of the confession.
It is the contention of Mr. Nwaeze, Esq, for the Appellant that the Appellant had no intention of causing any bodily hurt or death of the deceased. He relied on the case of ATIKU V. STATE (2010) 9 NWLR (PT 1199) 247 in adumbrating the principles guiding the determination as to whether an accused person knew or had reason to know that death was the probable consequence of his act.

Relying also on the case of MICHAEL V. STATE (2008) 13 NWLR (PT1104) 361 at 377, counsel submitted that the Prosecution did not tender the stick used by the Appellant, nor did it state the nature of the injury. The Prosecution also did not establish the physical and health state of the deceased.
This Court was therefore urged to hold that the prosecution has not proved its case beyond all reasonable doubt against the Appellant and resolve this issue in favour of the Appellant.
Conversely, it is submitted for the Respondent that the prosecution indeed proved its case beyond all reasonable doubt.
Learned counsel for the Respondent conceded to the Appellant’s submissions in Paragraph 4.1-4.6 of the Appellant’s brief.
In response to Paragraph 4.7 of the Appellant’s brief however, it is the submission of learned D.P.P for the Respondent that PW1 and PW3 are eye witnesses because they were physically present at the scene notwithstanding that they did not see the time the Appellant hit the deceased with a stick on the head. It is submitted that they are eye witnesses to the extent of what they saw, i.e. seeing the Appellant with the stick and seeing the deceased falling down with blood rushing out of his head.
It is the further submission of learned D.P.P that though not conceding to the fact that PW1 and PW3 were not eye witnesses because they did not see the Appellant hit the deceased, their testimonies were relevant and qualify as circumstantial evidence because when they looked around, it was only the Appellant that they saw holding a stick while the deceased was falling down with blood rushing from his head.

The Learned D.P.P maintained that the only inference that can be drawn from the testimonies of PW1 and PW3 is that it was the Appellant that hit the deceased with the stick on his head.
It is submitted that the position of the law is clear that once circumstantial evidence was found to be positive, compelling and with mathematical precision and points to the guilt of the accused, the prosecution will succeed in proof of its case. The following cases were relied on:
ABOKOKUYANRO V. STATE (2012) 2 NWLR (PT 1285) 530 at 557;
ILODIGIWE V. STATE (2012) 18 NWLR (PT1331) 1 at 53.
It is submitted that though the evidence of the Appellant was uncontroverted under cross examination, the trial court which has the singular duty and privilege of assessing the evidence of witnesses and ascribing probative value to same, accepted the evidence of the Respondent in preference to that of the Appellant. Reliance was placed on the following cases:
OKOSI V. STATE (1989) 1 NWLR (PT.100) 642;
NDIDI V. STATE (2005) 17 NWLR (PT 953) 17 at 32 – 33.
It is further argued that it is not every uncontroverted evidence of a witness that should be accepted and acted upon by a Court. It is only where such evidence is credible. The case of MAGAJI v. NIGERIA ARMY (2008) 8 NWLR (PT 1089) 338 at 393 was relied upon.
It is submitted that the Appellant’s contention in paragraph 4.8 is unfounded because PW4 had informed the court that it was the Appellant that hit the deceased with stick and referred to page 17 of the Record. It is the view of Learned D.P.P that the evidence of PW3 and PW4 cannot be read in isolation but as corroborating each other and relied on the following cases:
ALI V. STATE (2012) 7 NWLR (PT 1299) 209 at 260;
AKINDIPE V. STATE (2012) 16 NWLR (PT.1325) 94 at 113.
This Court is urged to hold that the evidence of PW3 and PW4 cannot be the same and the evidence of PW3 cannot be used to discredit that of PW4.
On whether it was the act of the Appellant that caused the death of the deceased, it is submitted for the Respondent that prosecution had proved that the deceased died from the act of the Appellant through the testimonies of PW1, PW3 and PW4.
It is submitted that by the combined effect of the evidence of PW1, PW3 and PW4, the confessional statement of the Appellant was sufficiently corroborated and had satisfied the requirement enunciated in the cases of STEPHEN V. STATE (SUPRA), SHURUMO V. STATE (supra); AKPA V. STATE (supra); DAWA V. STATE (supra); and UDOFIA v. STATE (supra), all cited by the Appellant, more so as the trial court did not rely solely on the confessional statement of the Appellant to convict him.

It is the further submission of the Learned D.P.P that though it is desirable to have something outside the confession, a confessional statement alone can ground a conviction once the court is satisfied that its contents are true. Reliance is placed on the case of BRIGHT V. STATE (2012) 8 NWLR (PT 1302) 297 at 323.
It is submitted for the Respondent that the issue of provocation raised by the Appellant was an afterthought because same was not raised in his statement which was admitted after the trial within trial.
Learned DPP further submitted that by hitting the deceased on the head without cause, the Appellant intended to cause the death of the deceased and not only bodily injury and that he knew or had reason to know that death was the probable consequence of his act.
It is also submitted that the case of ATIKU V. STATE (supra), cited by the Appellant is more in favour of the Respondent than the Appellant and that through the evidence of PW1, PW3 and PW4, as well as Exhibit 3, which is the medical report, the Appellant knew or had reason to know that death was the probable consequence of his act.
On the failure of the Respondent to tender the stick used in committing the crime, it is submitted for the Respondent that this is not fatal to the case of the prosecution/Respondent where the deceased died on the spot or nearly so.
Furthermore, it is also submitted that PW1, PW3 and PW4 had informed the court that they saw blood gushing out of the head of the deceased and the medical report showed that the injury that caused the death of the deceased was a head injury.

In conclusion, it is submitted that the Respondent had proved its case beyond reasonable doubt against the Appellant and that proof beyond reasonable doubt has been held not to mean proof beyond all shadow of doubt. Reliance was placed on these cases:-
OCHEMAJE V. STATE (2008) 15 NWLR (PT.1109) 57 at 95;
BOLANLE V. STATE (2009) 18 NWLR (PT.1172) 1 at 10-11.
This court is therefore urged to hold that the Respondent had proved its case beyond reasonable doubt and to resolve this issue in favour of the Respondent.
It is settled law that in a criminal trial, the burden of proof lies throughout, upon the prosecution to establish the guilt of the accused beyond reasonable doubt and never shifts. Even where an accused beyond reasonable doubt and never shifts. Even where an accused in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden. Failure to discharge this burden renders the benefit of doubt in favour of the accused. See IGABELE V. STATE (2006) 6 NWLR (PT 975)100.
In the instant case, the Appellant was charged for the offence of culpable homicide punishable with under Section 221 of the Penal Code, Laws of Katsina State of Nigeria 1991.
For the Prosecution to succeed, it must establish the ingredients of the offence adumbrated in the said section of the Penal Code.
For avoidance of doubt, Section 221 of the Penal Code, Laws of Katsina state of Nigeria 1991 states as follows:
“Except in the circumstances mentioned in Section 222 Culpable Homicide shall be punished with death-
(a) if the act which the death caused is done with the intention of causing death; or
(b) if the doer of the act knew or had reasons to know that death will be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.”
Flowing from this provision is the obvious fact that for the Prosecution to secure a conviction under the above mentioned Section, it must establish the following ingredients:
a) that the death of a human being has actually taken place;
b) that such death has been caused by the accused;
c) that the act was done with the intention of causing death; or that it was done with the intention of causing bodily injury, as:
i) the accused knew or had reason to know that death would be the probable and not only likely consequence of his act;
ii) the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.
All the ingredients must be proved or must co-exist before a conviction could be secured. Failure to establish any of the ingredients would be fatal to the case of the Prosecution.
See the following cases:
IGABELE V. STATE (2006) 9 NWLR (PT 984) 155
OCHEMAJE V. STATE (2008) 15 NWLR (PT 1109) 57;
AKPA V. STATE (2008) 14 NWLR (PT 1106) 72;
ISMA’IL V. STATE (2011) 17 NWLR (PT 1277) 601.

The onus of proof is on the Prosecution throughout the trial and does not shift. It is also the duty of the Prosecution to establish the guilt of the accused and rebut the presumption of innocence. See the case of ADAVA V. STATE (2006) 9 NWLR (PT 984) 152 at 167.
In this issue, the Appellant is challenging the finding of the trial Court that the offence of culpable homicide punishable with death has been proved against him. His view is that the prosecution failed woefully to prove the essential ingredients of the offence of culpable homicide and that the trial court ought not to have convicted him.
I have earlier on in this judgment set out the ingredients which the prosecution must prove in order to secure a conviction under Section 221 of the Penal Code.
The first ingredient of the offence of culpable homicide punishable with death to be established by the prosecution is that “the death of a human being actually took place.”
From the evidence before the trial Court, it is not in doubt that this first ingredient has been sufficiently established.
The common thread that runs through the testimonies of PW1-PW5 is “I know one Salisu Yusuf. He is dead.”
See also Exhibits 2A and 2B which are two photographs bearing the name of Salisu Yusuf, the deceased.

Having established that the death of a human being had taken place, the next duty on the prosecution is to prove that such death was caused by the Appellant.
In establishing this ingredient, the evidence of PW1, PW3 and PW4 as well as the evidence of DW1 are pertinent.
PW1 Amadu Yusuf, at pages 11-12 of the Records said:
“… on the fateful day, the deceased, myself and two other persons by name Audu and Ibrahim Heluma were at a well fetching water. I then heard a hit and on looking back, I saw the accused person hitting the deceased with a heavy stick. As a result of the hit, blood started rushing out from the deceased’s head. I tried to assist the deceased to remain standing but he fell down… At the material time, he was not dead… We carried the deceased to the Hospital. …At the hospital, the deceased was admitted and examined by the medical doctor and prescribed some drugs which I went to purchase… On my return, the doctor told me that the deceased was dead…”
During cross examination:
Q; Did you see the accused person hitting the deceased?

Ans: When I turned back. I saw the accused holding his stick on his shoulder.

Q; You did not see when the stick landed on the deceased?

Ans:I did not see the actual moment when the deceased was hit but I actually saw the accused holding his stick on his shoulder.
Q: What was the distance between the deceased and the accused person at the material time?

Ans: It was very close.

PW3 Ibrahim Heluma at page 15 of the Record said:
“…It was in a certain day when I together with Audu, Amadu and the deceased went to a well to fetch water.
While there, I was fetching water from the well when I heard a sound of a hit and on looking round, I saw the deceased falling down with blood rushing from his head. I also saw the accused person holding a stick close to the well. Thereafter Audu and Amadu took the deceased home, while the accused person rode away on his bicycle…..”
During cross examination:
Q; When the four of you heard a hit you all looked around?
Ans: Yes we did.

Q; You saw the accused person holding the stick?

Ans: Yes, I saw him.

Q; What was the distance between the accused person and the deceased?

Ans: It was close.
PW4 Audu Yusuf at pages 16-17 of the Record said:
“…It was the accused person who hit him with a stick around a well. I was at the scene of the incident when the deceased Salisu Yusuf had bent down fetching water from the well when the accused hit him on his head to which blood was gushing out from the head. The deceased Salisu fell down. I saw the accused person with a stick hit the deceased. Thereafter myself and Amadu carried the deceased home…”
During cross examination:
Q: Did you know when the accused person reached the well?

Ans: No.

Q; You first heard a hit?

Ans: I saw the accused person holding a stick and hitting the deceased with it.

Q; What then did You do?

Ans: I rushed and held the deceased.

Q; Did you talk to the accused person?

Ans: No, I did not.
Now to the evidence of the Appellant as DW1, at page 58 of the Record:
“… on 02-05-2004 I went to a well to fetch water where I met Amadu Yusuf, Abdu Yusuf and Salisu Yusuf laughing. I then asked them what they were laughing for, then Salisu replied that they were laughing at me. I asked them what for? Then Salisu replied: “You black, you are black dog” I became annoyed as a result and I beat him with my stick. When people intervened i went my way,…”
Under cross examination:
Q: Am i right to say that Salisu died on the same day you beat him?

Ans: I cannot say as I went my way.

Q: Where did you beat him with your stick?

Ans: I beat him on the head.

Q; How many times did you beat him?

Ans: I beat him only once.
The Appellant’s confessional statements to the police were admitted in evidence as Exhibits 1 and 4, after the trial within trial conducted by the trial Court to ascertain their voluntariness.
The pertinent portion of the confessional statement is as reproduced at page 12 of the Appellant’s brief thus:
“… On reaching the well, I met Salisu Yusuf and two of his brothers namely Audu Na Hussaini and Amadu already there to fetch water. Soon as I placed my bicycle on its jack I drew out my stick and went straight to Salisu Yusuf where I used the stick and hit him on the fore head….”
The Appellant has denied making this statement to the police. See page 29 of the Record where at the trial within trial, the Appellant insisted that inspite of the beating he received from the police, he did not make any statements.

At the ruling at the trial within trial, the learned trial Judge held inter alia at page 34 thus:
“Therefore, a confessional statement made to the police does not become inadmissible because the accused that made it denies ever making it or retracts the confession. The denial or retraction however is a matter to be taken into consideration to decide what weight could be attached to it.”
The burden of linking the cause of death of the deceased to the Accused person is not discharged by leading evidence to say that the accused person confessed to committing the crime. It is necessary for the prosecution to prove beyond reasonable doubt what caused the death and not the fact of death only.
See PIUS ODOCK & ORS v. STATE (2007) 7 NWLR (PT 1033) 369.
In the instant case, by the medical report admitted in evidence as Exhibit 3, the deceased was said to have died of head injury.
Where the cause of death is ascertained, the next hurdle is to link the cause of death with the act or omission of the accused person alleged to have caused it. The prosecution must lead evidence to prove those facts before a conviction for the offence of culpable homicide can be secured. See OCHE v. STATE (2007) 5 NWLR (PT 1027) 214.
From the totality of the evidence of PW1, PW3 and PW4, as well as Exhibit 3, which is the medical report, I have no hesitation in coming to the conclusion that the deceased’s death was caused by the Appellant.
Now to the last and final ingredient that is, whether the accused person’s act which caused the death of the deceased was intentionally done with the knowledge that death or grievous bodily harm was its probable consequence.
The Appellant in his evidence testified that he hit the deceased with a stick on the head once because he was angry that he was called a black dog by the deceased.
Learned D.P.P. for the Respondent has strenuously argued that the Appellant knew or had cause to know that death was a probable consequence of hitting someone on the head with an object.

In Umaru Gwandu v. Gwandu N.A. (Supra) the Federal Supreme Court refused to uphold a sentence of death because having regard to the nice distinction between a ‘likely’ and a ‘probable’ consequence of an act, on which the sentence is decided the High Court could not decide this without seeing the mortar in that case and considering its size and weight. The Court thought it would not be safe in view of the unsatisfactory identification of the mortar, to allow the sentence of death to stand. It seems therefore clear from all the authorities that the question whether death was a likely or probable consequence of the act of the prisoner being one of fact would be determined from all the surrounding circumstances. As Maidama, J.C.A. said in the passage, referred to above.
“if a weapon is used the question will generally resolve itself by the consideration of the weapon used, the part of the deceased’s body where it was struck and the amount of force used.”
It seems to me therefore that this brings into focus the doubt which must necessarily arise in the circumstances of this case as to the weapon used. If a knife was used in the circumstances accepted by the two lower courts, it would seem to me that knowledge that death would be the probable not likely consequence of such an act would be imputed to the appellant. If on the other hand a bottle was used in the circumstances alleged by the appellant, I am not so sure that one can come to the same conclusion. It seems therefore useful to examine this question of the weapon used…”
Applying the above cited case mutatis mutandis to the instant case, can it be said that the Appellant intentionally caused the death of the deceased or that he knew or had reason to know that death was the probable and not just likely consequence of his act?
In order to answer this question, the weapon used (in this case, a stick) is vital. It is on record that the stick used by the Appellant was not tendered in evidence. Learned DPP has argued that this is not fatal to the case of the Prosecution.
In the case of ATIKU V. STATE (2010) 9 NWLR (PT 1199) 241, cited by the Appellant, the Court held thus:
“A determination as to whether an accused knew or had reason to know that death was the probable consequence of his act depends on facts which should be disclosed by the evidence adduced by the prosecution. Such facts include:-
a) the type or nature of the weapon used in the commission of the crime;
b) the part of the body of the deceased struck or attacked;
c) the nature of the injuries inflicted on the deceased;
d) physical and health state of both the accused person and the deceased at the material time;
e) if the deceased was treated at a hospital and died on admission, a report or certificate by the medical officer on the treatment and death.”
See also the case of MICHAEL V. STATE (2008) 13 NWLR (PT 1104) 361 where at page 377, the Court held:
“In a charge of culpable homicide, the nature of the weapon used, its weight and size are in the circumstances of a case essential in determining whether the conviction should be one of culpable homicide punishable with death or not.”
In the instant case, I am unable to decide the intention of the Appellant without seeing the stick and considering its size and weight. It seems to me therefore that this brings into focus the doubt which must necessarily arise in the circumstances of this case as to the weapon used.
I find also that the prosecution has not established sufficient evidence and facts in line with the principles laid down in ATIKU V. STATE (supra).
It is trite law that where there is doubt in the mind of the Court in a criminal matter, it ought to be resolved in favour of the accused person. See the case of CHUKWU V. STATE (1996) 7 NWLR (PT 463) 682.
From the totality of the above, I find that this ingredient of intention has not been sufficiently established by the Respondent.
This issue is therefore resolved in favour of the Appellant.

ISSUE 2
“Whether going by the provisions of the law, the learned trial Judge was right when he relied on the failure of the Appellant to file a final written address and refused to consider the defence raised by the Appellant at the trial.”
In arguing this issue, it is submitted for the Appellant that the Appellant in his testimony told the trial court that he was provoked by PW1, PW3 and PW4, which led to him hitting the deceased with a stick.
Learned counsel for the Appellant referred to the evidence of DW1 at page 58 of the Record and submitted that from the evidence of DW1, two facts could be deduced; first that the Appellant was made jest of when he got to the well and secondly he was called detestable names which provoked him into hitting the deceased with a stick on the head.
It is submitted that for an accused person to avail himself of the defence of provocation, he has to establish by evidence the following conditions:
a) that the act of provocation is grave and sudden;
b) that the accused lost self control, actual and reasonable;
c) that the degree of retaliation by the accused person must be proportionate to the provocation offered.
The following cases were relied on:
KAZA V. STATE (2008) 7 NWLR (PT 1085) 125;
AFOSI V. STATE (2013) 13 NWLR (PT 1371) 329;
EDOHO V. STATE (2010) 14 NWLR (PT 1214) 651.
Learned Counsel for the Appellant also submitted that the Appellant conduct arose suddenly in the heat of anger which resulted in the commission of the offence. Therefore, in the determination of whether there was provocation, the court will consider whether a reasonable man in the street or situation of the accused would have been provoked to commit the offence.
Learned counsel further maintained that ordinarily, a reasonable man on the street would be greatly provoked when called a dog talk more of a Muslim because under Islamic laws and in the Muslim community, dogs are generally detested and regarded as useless creatures.

Furthermore, it is submitted that in a criminal trial, the court is urged to consider all the defence raised by an accused person no matter how stupid, weak or fanciful they may be. It is submitted that failure to consider a defence raised by an accused person amounts to shutting out the accused and entitles him to be discharged for denial of fair hearing at the trial. The case of OMOLEYE V. STATE (2014) 3 NWLR (PT 1394) 232 at 333-334 was relied on.
Reliance was also placed on the following cases:
EDOHO V. STATE (2010) 14 NWLR (PT 1214) 651 at 681-682;
WAKALA V. STATE (1991) 8 NWLR (PT 211) 552;
MAIGARI V. STATE (2010) 16 NWLR (PT 1220) 439 at 481.
It is submitted further for Appellant that final address does not take the place of evidence and that failure to file written address does not entitle the court not to consider that defence raised by the accused person no matter how weak and stupid it is.
It is thus submitted that the Appellant having established his defence of provocation is entitled to be convicted for a lesser offence other than culpable homicide punishable with death.
It is also opined that the this Court is vested with power under Section 218 of the Criminal Procedure Code to convict a person for the lesser offence other than that which he was charged nor pleaded to. Reliance was placed on the following:
EZEJA V. STATE (2008) 10 NWLR (PT 1096) 513;
ADAVA V. STATE (2006) 9 NWLR (PT 984) 152;
BANJO V. STATE (2013) 16 NWLR (PT 1381) 455;
NWACHUKWU V. STATE (1986) 2 NWLR (PT 25) 765.
It is submitted in conclusion that the trial Judge was wrong to have relied on the failure of the Appellant to file a final written address and refused to consider the defence raised by the Appellant. This Court is urged to resolve this issue in favour of the Appellant.
For the Respondent, it is submitted, while responding to this issue in the affirmative that the Appellant was given ample opportunity to file his written address twice but refused to.
It is submitted also that if the Appellant had wanted to file the address, he would have made positive efforts to file the address considering the length of time the case was adjourned for judgment.
Relying on the case of AKPA V. STATE (2008) 14 NWLR (PT 1106) 72 at 99, it is submitted for the Respondent that the position of the law is that if a procedure adopted in a trial is consented to by a party, he cannot complain or be heard to complain afterwards or on appeal that the procedure was irregular.
It is submitted also that the judgment of the trial Court was not based on the failure of the Appellant to file written address but based on the totality of the evidence adduced.
Learned D.P.P. further maintained that the defence of provocation could not avail the Appellant considering the credible evidence of the prosecution.
It is also submitted that the evidence of PW1, PW3 and PW4, coupled with the statement of the Appellant, the trial Court was right when it came to the conclusion that the Appellant did not establish the defence provocation. The case of ADA V. STATE (2008) 13 NWLR (PT 1103) 149 at 177 as well as the case of ANNABI V. STATE (2008) 13 NWLR (PT 1103) 179 at 201, were cited and relied on.
On whether the defence of provocation was raised, it is further submitted though not conceding that there was the defence of provocation, the Appellant did not satisfy the conditions enumerated in the cases of:
KAZA V. STATE (supra); AFOSI V. STATE (supra); SHANO V. STATE (supra) and EDOHO V. STATE (Supra), all cited by the Appellant at page 16 of his brief.

Learned D.P.P. further submitted that the mere calling of the Appellant a dog by the deceased is not sufficient provocation and that where an Appellant complains on appeal that certain defences available to him were not considered by the trial court, he has the duty to identify the facts or evidence on record which when considered would establish or avail him of the defences. The case of ANNABI V. STATE (supra) was relied on. This Court is urged to hold that the Appellant has not satisfied the requirements of the law to warrant this Court to consider any defence that will avail him.
On the issue of written addresses, it is submitted that though written address does not take the place of evidence, an accused must proffer evidence in support of the defence and this the Appellant did not do at the trial. The cases of OMOLEYE V. STATE (supra) and ADA V. STATE (supra) were relied on.
This Court is urged to so hold and resolve this issue in favour of the Respondent.
It is settled law that it is not the duty of an accused to prove his innocence. The prosecution must establish the guilt of the accused. See the case of CHIANUGO V. STATE (2002) 2 NWLR (PT 750) 225.
In the instant case, it is the contention of learned Counsel for the Appellant that the learned trial Judge erred in his judgment that since “the accused person could not defend himself on the charge and could not avail himself of any of the stated mitigating circumstances under section 222 of the Penal Code, this court has no option but to convict him as charged.”
The further contention of learned Counsel for the Appellant is that the trial Court did not consider the defence of provocation raised by the Appellant in his testimony.
Section 39(1) of the Evidence Act, 2011 provides as follows:
(1) where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged is upon such person.”
The Appellant, as DW1, in his testimony, at page 58 of the Record stated thus:
“… on 02-05-2004 I went to o well to fetch water where I met Amadu Yusuf, Abdu Yusuf and Salisu Yusuf laughing. I then asked them what they were laughing for, then Salisu replied that they were laughing at me. I asked them what for? Then Salisu replied: “You black, you are black dog” I became annoyed as a result and I beat him with my stick.
When people intervened I went my way… ”
This piece of evidence was not controverted during cross examination. It therefore means that by this evidence, the Appellant has raised the defence of provocation.
Now, it is settled law that in a trial of murder it is the duty of the court to consider all the defences raised by the evidence whether the person charged specifically put up such defences or not. See SAMPSON NKEMJI UWEKWEGHINYA V THE STATE (2005) 9 NWLR (PT 930) 227. And no matter how weak or stupid a defence raised by an accused may appear, it must be properly and adequately considered. It is the duty of the court to consider the defence of provocation once there is evidence even if not raised specifically.
In the case of EDOHO V. STATE (2010) 14 NWLR (PT.1214) 651 at 681-682, it was held thus:
“In all cases attracting capital punishment, it is incumbent upon the trial court to consider all the defences put up by the accused, express or implied, in the evidence before the court. No matter the level of the defences whether they are full of figments of imagination, fanciful, replete with porous lies or even doubtful, the court must not be wary to give them due consideration. Thus, if, from the totality of evidence, a particular defence avails an accused person in a criminal matter, he should be given the benefit of that defence notwithstanding the fact that he did not specifically raise it. However, the trial court is only under obligation or duty to consider such defences open to an accused person as disclosed or supported by the evidence on the printed record”
See also OMOLEYE V. STATE (2014) 3 NWLR (PT 1394) 232 at 333-334.
In the instant case, going by the above authorities, I hold that the Appellant successfully raised the defence of provocation and the learned trial Judge erred in not having considered the defence raised.
This issue is therefore resolved in favour of the Appellant.

ISSUE 3
“Whether the learned trial Judge rightly applied the case of NASIR V. STATE (1999) NWLR (PT 589) 87 when he held that the prosecution has established a prima facie case of the offence charged, therefore the burden of proving the accused person’s innocence now shifts to the accused person.”
In his argument on this issue, it is submitted for the Appellant that the learned trial Judge misapplied the case of NASIR V. STATE (supra) on whom the onus in criminal cases lie. He placed reliance on these authorities:
SECTION 138 OF THE EVIDENCE ACT, 2011;
SECTION 36 (11) OF THE 1999 CONSTITUTION AS AMENDED.
It is further submitted that a community reading of the relevant statutory provisions as well as a plethora of judicial authorities would reveal that the general principle of law is that the prosecution in a criminal matter has the onus always to prove the guilt of the accused beyond reasonable doubt before his conviction can be sustained and this burden does not shift.
These cases were relied on:
EGWUMI V. STATE (2013) 13 NWLR (PT 1372) 525;
JOSEPH v. STATE (2011) 16 NWLR (PT 1273) 226;
CHUKWU V. F.R.N. (2013) 12 NWLR (PT 1369) 488.
It is further submitted that there is no onus on an accused person to prove his innocence or that no crime had been committed even though such proof rested upon facts peculiarly within his knowledge, citing WOOLMINGTON V. D.P.P. (1935) A.C.462.
It is submitted that it is not enough for the prosecution to suspect a person of having committed a crime. There must be evidence which links the accused person with the offence alleged and it is not the duty of the Appellant to prove his innocence.
Learned Counsel for the Appellant further stated that the learned trial Judge misapplied the case of NASIR V. STATE (supra) because the burden only shifts to the accused person after the prosecution has adduced sufficient evidence to show that the accused is guilty of the offence charged.
It is submitted further that in the instant case, the Prosecution has failed to establish the guilt of the Appellant and therefore the burden cannot shift from the Prosecution. Reliance was placed on the case of STATE V. AZEEZ (2008) 14 NWLR (PT1108) 439.
Learned counsel further submitted that the insufficiency of evidence or absence of credibility in evidence cannot ground a conviction for a criminal offence and that the Prosecution has failed to establish the necessary elements and ingredients of the offence of culpable homicide punishable with death against the Appellant.
In the final analysis this Court is urged to resolve all the issues raised in favour of the Appellant, allow the appeal and set aside the judgment of the lower court delivered on the 5th of December, 2012.
In its response, it is submitted for the Respondent that the trial Judge was right and applied the case rightly. It is submitted that once the prosecution has proved its case against the accused, it is for him to rebut the presumption that he committed the offence. The case of JUA V. STATE (2010) 4 NWLR (PT 1184) 257, is cited and relied on.
It is also submitted that there was sufficient and credible evidence at the trial led by the Respondent to prove the offence against the Appellant.
It is further submitted that the fact that the evidence of the Appellant was not contradicted or controverted under cross examination is immaterial as the trial court which has the singular opportunity of hearing and assessing the witnesses in the box believed and ascribed probative value to the evidence of the Respondent. The case of ATTA V. STATE (2010) 10 NWLR (PT 1201) 190 is cited and relied on.

It is also submitted that the duty of the trial court is to hear evidence, evaluate same, believe or disbelieve witnesses, make findings of facts based on the credibility of the witnesses who testified and to decide the merit of the case based on the findings. He cited the case of IDIOK V. STATE (2008) 13 NWLR (PT 1104) 225 at 240.
It is submitted that the decision in the case of NASIR V. THE STATE supra is on all fours with the instant case and learned trial court rightly applied the decision in that case.
Learned D.P.P. submitted that the trial court rightly evaluated the evidence before it in arriving at its conclusion and there is no reason for the appellate court to embark on the exercise of re-evaluation of the evidence. The case of EBENECHI V. STATE (2009) 6 NWLR (PT 1138) 431 at 448. Is cited and relied on.
In summary, it is submitted that the Respondent has proved all the ingredients of the offence of culpable homicide punishable with death against the Appellant and this Court is urged to resolve all the issues raised against the Appellant, dismiss the appeal as lacking in merit and affirm the decision of the trial Court.
The pith of this issue is whether or not the Respondent has established a prima facie case of culpable homicide punishable with death against the Appellant in which case the evidential proof of his innocence or available defence, would shift to the Appellant.
The case in point is the case of NASIR V. STATE (1999) 2 NWLR (PT 589) 87. In that case, the appellant was charged with the murder of one Saliu Kolade. The deceased was a taxi driver in Sango Ota in Ogun State. On 12th April 1985, the accused and one other person named Taju approached the deceased and requested him to take them in his taxi to Ado-odo. The deceased agreed and his fare of N10 was instantly paid to him.
The deceased was never seen alive from then.

However, evidence showed that the appellant and Taju were seen driving around in the deceased’s car which colour was altered. Although the appellant was not seen killing the deceased, the accumulated circumstantial evidence were found sufficient by the High Court to establish his guilt. This verdict was confirmed by the Court of Appeal. Upon further appeal to the Supreme Court, the apex Court per Uwais C.J.N. held that the burden of proving the charge is on the prosecution but it shifts when evidence (even circumstantial) is adduced to show the guilt of the accused person.
It is the contention of the Appellant that the Respondent has not proved its case beyond reasonable doubt against the Appellant and that the learned trial Judge erred in law and misapplied the law in NASIR V. STATE (supra).
It is trite that by virtue of the provisions of Section 36(11) of the 1999 constitution as amended, “no person who is tried for a criminal offence shall be compelled to give evidence at the trial.”

It is also the law that the burden of proof in a criminal case rests squarely on the prosecution and this burden of proof must be proof beyond reasonable doubt. See Section 138 of the Evidence Act, 2011.
However, by the decision in NASIR V. STATE, this burden shifts to the accused person when the Prosecution establishes the guilt of the accused.
I have earlier on in this judgment said that the Prosecution has not proved that the accused intentionally caused the death of the deceased. Having said so, I find that the ingredients of the offence of culpable homicide punishable with death have not been established against the Appellant.
I am therefore of the view that the case of NASIR V. STATE is inapplicable in the instant case and resolve this issue in favour of the Appellant.
Now, the poser is: Having held that the defence of provocation avails the Appellant herein; what is the legal consequence thereof?
The defence of provocation is as provided for by Section 222 (1) of the Penal Code, as well as Section 318 of the Criminal Code.
Section 222(1) of the Penal Code provides as follows:-
“Culpable homicide is not punishable with death if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”
Section 318 of the Criminal Code provides as follows:
“When a person unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”
In considering Section 318 of the Criminal Code, Ademola CJN in the case of OBAJI V. THE STATE (1965) 1 ALL NLR 269 at 275 opined thus:
“As we have pointed out earlier Section 318 of the Criminal Code must be read together with section 283 of the Criminal Code which defines provocation and for the purposes of section 318 provocation includes (1) any wrongful act or insult (2) of such a nature when done to an ordinary person as is likely (a) to deprive him of the power of self control, and (b) to induce him to assault the person by whom the act or insult is done or offered.
To avail himself of the defence in a charge of murder under section 318 of the Criminal Code, the accused must have done the act for which he is charged (i) in the heat of passion, (ii) this must have been caused by sudden provocation and (iii) the act must have been committed before there is time for his passion to cool. There can be no doubt that the attitude of the Nigerian courts has been to interpret Sections 283 and 318 of the Criminal Code as impliedly including the made of resentment or, in other words, that the retaliation must be proportionate to the provocation offered. In this connection, and in consonance with this interpretation by the Nigerian courts the doctrine has developed to the “behaviour of the average man in the community to which the accused belongs” See R. v. James Adekanmi (1943) 17 NLR 99 at pp.101 and 102.”
It is also settled law that an act of revenge, not done in the heat of passion cannot successfully form the basis of a defence of provocation See Chukwu v. The State (1966) NMLR 81; or where the accused had sufficient time to cool down before doing the act complained of, see Ashimiyu v The State (1982) 10 SC 1. Provocation which could reduce what otherwise amounted to murder to manslaughter is a legal concept made up of a number of a co-existing elements. It is of paramount importance in the consideration of this concept that the act is held out as a natural and justifiable reaction of the provoked person and was not done in self revenge but in ventilation of a natural, sudden and contemporaneous feeling of anger caused by the circumstances of the occasion. See Akang v State (1971) 1 All NLR 46.”
See also the more recent case of SHANDE V. STATE (2005) 12 NWLR (PT 939) 301 as well as the case of AFOSI V. STATE (2013) 13 NWLR (PT 1371) 329, where it was held that for an accused person to avail himself of the defence of provocation, he has to establish by evidence the following conditions to wit:-
1) that the act of provocation is grave and sudden
2) that the accused lost self control, actual and reasonable;
3) the degree of retaliation by the accused person must be proportionate to the provocation offered.

It is settled law that premeditated intent is incompatible with the defence of provocation, so that an accused who kills another intentionally cannot be said to have been provoked.
Now applying these principles to the undoubted facts of this case, I am of the view that the defence of provocation can avail the Appellant. I am of the view that in the circumstances and bearing in mind the station of the Appellant, the appellant certainly received grave and sudden provocation and did what he did in the heat of passion before that passion had time to cool.
The Appellant was insulted and called a dog. I disagree with learned D.P.P. that the insult given to the Appellant did not amount to such provocation as would mitigate his offence. The prudent course in a case like this would have been for the trial Judge to ask the Moslem witnesses what they thought of that kind of insult to a Moslem. It is a question of the effect that such an insult would have on the ordinary reasonable man of the class to which the Appellant belongs.
It is my view that the retaliation was proportionate to the provocation. The Appellant in his testimony said he struck the deceased only once. Having previously held that there was a lingering doubt as to the weapon used in this case (the stick not having been tendered in evidence), I am of the view that based on the evidence before the trial Court the Appellant should have been found guilty of culpable homicide not punishable with death and sentenced under Section 224 of the Penal Code, which provides that:-
“Whoever commits culpable homicide not punishable with death, shall be punishable with imprisonment for life or for any less term or with fine or with both.”
I also hold that the Appellant can be convicted for a lesser offence by virtue of the provisions of Section 218 of the Criminal procedure Code CAP 30 Laws of Northern Nigeria 1963 which states that:-
“(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduced it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.”
See ADAVA V. THE STATE (2006) 9 NWLR (PT. 984) 152 at 169.
In the final analysis, this appeal is meritorious and it is hereby allowed in part.
The judgment of the Hon. Justice I.B. Ahmed of the Katsina State High Court, holden at Dutsinma, delivered on the 5th of December, 2012 in SUIT NO. KTH/DM/4C/2006 is hereby set aside.
In its place, I find the Appellant guilty of Culpable Homicide not punishable with death and convict him accordingly. The Appellant is hereby sentenced to 10 years imprisonment to take effect from the 2nd of May, 2004, the day the Appellant was arrested.

ZAINAB A. BULKACHUWA, OFR, PCA, J.C.A.: I have read before now the judgment just delivered by my learned brother, Abba Aji, JCA.
She had meticulously considered all the issues raised in the appeal. I agree fully with the reasoning therein that this is a situation where the defense of provocation as raised can avail the appellant.
From the evidence adduced by the appellant in his testimony before the court and in his confessional statements it has been shown that the appellant was provoked when he hit the deceased fatally with a stick on the head once, the learned trial judge should have taken that into account, and considered the provisions of Sections 283 and 318 of the Criminal procedure Code in mitigating the conviction from Section 221 of the Penal Code to Section 224 of the Penal Code.

I in the circumstance, abide with the consequential orders contained in the lead judgment whereby the conviction of the appellant under Section 221 of the Penal Code is set aside and substituted with a conviction under Section 224 of the Penal Code.

ABDU ABOKI, J.C.A.: I had the privilege of reading in advance the judgment of my learned brother, U. M. ABBA-AJI, JCA, just delivered. Having perused same, I completely agree with her reasoning and conclusion therein reached that the appeal succeeds in part.

Where an accused is charge with one offence, but it appears in evidence that he committed a different offence for which he might have been charged, he may be convicted of the offence which he is shown to have committed by the evidence, regardless of the fact that he was not charged with the particular offence. See: Odeh Vs. FRN (2008) 13 NWLR (Pt. 1103) page 1 at 23. In the instance case from the circumstance of the case and the evidence before the trial Court conviction of culpable homicide not punishable with death under the Penal Code should have been most proper.
As rightly observed in the lead judgment a community reading of the provisions of section 217 and 218 of the criminal procedure code indicate that this Court have power to substitute a conviction for a lesser offence than the offence charged whenever it is appropriate to do so.

I abide by the consequential orders in the lead judgment.

Appearances

OKECHUKWU NWAEZE, ESQ.,For Appellant

AND

S.B. UMAR, (MRS) D.P.P. KATSINA STATE WITH M.A. KANKIYA ESQ, C.S.C., A. UMAR, ESQ, P.S.C. AND S.Y. WURMA, ESQ, S.S.C.For Respondent