MEBELE v. STATE
(2022)LCN/17081(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, March 22, 2022
CA/L/1352C/2018
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
JOHN MEBELE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE PRINCIPLE OF FAIR HEARING
The main plank of the appellant’s quarrel, indeed the thrust of the terminal issue, is that the lower Court’s decision, delivered on 16th February, 2016, was an erosion of his inviolable right to fair hearing as guaranteed by Section 36(4) – (6) of the Constitution, as amended. Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395; La Wari Furniture & Baths Ltd. v. FRN (2019) 9 NWLR (Pt. 1677) 262. Due to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing, a mantra which, nowadays, competes with jurisdiction for prominence in adjudications.
The ancient concept of fair hearing traces its pedigree to divinity. It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and firmly entrenched in Section 36(1) of the Constitution, as amended. It donates to the citizens the inviolable right to ventilate their grievances on the altar of the two concrete pillars of natural justice to wit: audi alteram partem – hear the other side and nemo judex in causa sua – no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative body, an equal opportunity to present their cases. It follows that fair hearing is not synonymous with correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a Court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the feuding parties. Where a person’s right to fair hearing is curtailed, no matter the quantum of dexterity, artistry, transparency or objectivity invested in such a proceeding, it will be caught in the web of nullity. For these attributes of fair hearing, see Kim v. State (1992) 4 NWLR (Pt. 233) 17; Effiom v. State (1995) 1 NWLR (Pt. 373) 507; Ogugu v. State (1994) 9 NWLR (Pt. 366) 1; Uguru v. State (2002) 9 NWLR (Pt. 771) 90; FRN v. Akubueze (2010) 17 NWLR (Pt. 1223) 830; Ogunsanya v. State (2011) 12 NWLR (Pt. 1261) 401; Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; Audu v. FRN (2013) 5 NWLR (Pt. 1348) 397; Adisa v. State (2015) 4 NWLR (Pt. 1450) 475; FRN v. Michael (2018) 6 NWLR (Pt. 1616) 438; Eze v. State (2018) 16 NWLR (Pt. 1644) 1; Azuogu v. State (2018) 16 NWLR (Pt. 1644) 46; Edwin v. State (2019) 7 NWLR (Pt. 1672) 553; FRN v. Ogunrombi (2019) 8 NWLR (Pt. 1675) 538; Adamu v. FRN (2020) 2 NWLR (Pt. 1707) 129. PER OGBUINYA, J.C.A.
FACTORS TO GUIDE THE COURT TO ENSURE FAIR HEARING
The apex Court, in Baba v. Civil Aviation (1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See also, JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelaran I (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra). I will be guided by these catalogued elements of fair hearing as the barometer to gauge the appellant’s agitation of infraction of his right to fair hearing. PER OGBUINYA, J.C.A.
THE POSITION OF LAW ON THE PRIMARY DUTY OF THE TRIAL COURT
Remarkably, evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in finding of facts. This primary evidentiary duty falls squarely within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate Court, to watch the witnesses, form impression on their demeanour and evaluate the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. An appellate Court is disrobed of the vires to interfere with a finding of a trial Court anchored on demeanour and credibility of witnesses, see Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183, Adebanjo v. State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt. 1695) 289. Where a trial Court has justifiably performed this primary duty, an appellate Court does not form the habit of imposing and/or substituting its views for its own save in exceptional circumstances: where the findings are against the drift of evidence, perverse and smell of miscarriage of justice, see Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ikpa v. State (2018) 4 NWLR (Pt. 1609) 175; Enukora v. FRN (2018) 6 NWLR (Pt. 1615) 355; Sunday v. State (2018) 1 NWLR (Pt. 1600) 251; Ewugba v. State (2018) 7 NWLR (Pt. 1618) 262; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Abbas v. The People of Lagos State (2019) 16 NWLR (Pt. 1698) 213. PER OGBUINYA, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the High Court of Lagos State, Ikeja Division (hereinafter addressed as “the lower Court”), coram judice: S.S. Ogunsanya, J., in Charge No. ID/123C/2011, delivered on 16th February, 2016. Before the lower Court, the appellant and the respondent were the accused/defendant and the complainant respectively.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. In the wee hours of 17th November, 2008, at No. 2 Oremeji Street, Oshodi, Lagos, the deceased, Justina Ulumma Mebele, the wife of the appellant, asked him to provide money for the feeding of their baby boy, Samuel. The appellant brought N40.00 which the deceased rejected for being insufficient. The disagreement led to the appellant beating the deceased in their locked-up one room apartment. She raised alarm. Neighours knocked on the door but the appellant refused to open it. The deceased sustained injuries from the beating. The appellant later left the premises. Shortly after, the deceased started vomiting blood. Their neigbours or co-tenants took her to the General Hospital, Ikeja where she died on that day. The brother of the deceased reported the incident to Akinpelu Police Station. The appellant was arrested by the police. After due investigation, the appellant was arraigned before the lower Court on a one-count information of manslaughter contrary to Section 317 of the Criminal Code Law, Cap. C17, Vol. 2, Laws of Lagos State, 2003. The appellant pleaded not guilty to the information.
Following the plea of not guilty, the lower Court had a full-blown determination of the case. In proof of the case, the respondent fielded four witnesses: PW1-PW4. In disproof of the case, the appellant testified for himself and called no other witness. Tons of documentary evidence were tendered before the lower Court. At the closure of the evidence, the parties, through their counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 16th February, 2016, found at pages 138 – 155 of the additional record, the lower Court found the appellant guilty of the offence, manslaughter, convicted him and sentenced him to 21 years imprisonment from 17th November, 2008.
The appellant was dissatisfied with the decision. Hence, on 27th February, 2017, he lodged his original notice of appeal. Subsequently, with leave of this Court, the appellant filed a 6-ground amended notice of appeal on 21st December, 2021 but deemed properly filed on 30th November, 2021, wherein he prayed this Court as follows:
To set aside the judgment in Charge No. ID/123C/2011 delivered by Honourable Justice S.S. Ogunsanya of the High Court of Lagos State sitting at Ikeja on the 16th day of February, 2016.
To discharge and acquit the Appellant.
And other order(s) as the Court of Appeal may make as the justice of this case demands.
Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure regulating the hearing of criminal appeals in this Court. The appeal was heard on 17th January, 2022.
During its hearing, learned counsel for the appellant, Pamela Okoroigwe, Esq., adopted the appellant’s brief of argument filed on 21st December, 2020 but deemed properly filed on 30th November, 2021, and the appellant’s reply brief of argument, filed on 17th January, 2022 but deemed properly filed on the same day, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondent’s counsel, Oluwaseyilayo Ojo, Esq., adopted the respondent’s brief of argument filed on 8th November, 2021, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the appellant’s brief of argument, learned counsel distilled three issues for determination to wit:
1. Whether the trial Court was right in view of the provisions of Section 36 of the 1999 Constitution and the rules of natural justice, when it refused or neglected to record the oral testimony of the Appellant during trial before reaching a decision to convict the Appellant?
2. Whether Exhibits P1, P2 and P3-7, and oral testimony of PW1, PW2, PW3 and PW4 were admissible in evidence or of any weight as to form the basis for the conviction of the Appellant?
3. Whether in the light of evidence adduced at the trial the prosecution proved its case beyond reasonable doubt?
In the respondent’s brief of argument, learned counsel crafted three issues for determination, namely:
(i) Whether the trial of the Appellant was conducted in a manner that accorded him his right to fair hearing under Section 36(4) of the Constitution of Federal Republic of Nigeria, 1999.
(ii) Whether, having regard to the evidence before the lower Court, the charge against the Appellant was proved beyond reasonable doubt.
(iii) Whether the learned trial judge was right in her evaluation and ascription of probative value and weight to the testimonies and evidence tendered by PW1, PW2, PW3 and PW4.
A close look at the two sets of issues shows that they are identical in substance, but for semantics. In fact, the respondent’s issues can be conveniently subsumed under appellant’s. In view of this sameness, I will decide the appeal on the issues nominated by the appellant: the undoubted owner of the appeal.
Arguments on the issues.
Issue one.
Learned appellant’s counsel submitted that the lower Court failed to record in writing, or consider the evidence of the appellant before convicting him. He described it as a breach of the appellant’s right to fair hearing. He relied on Section 36(4) of the Constitution, as amended; Audu v. FRN (2013) LPELR – 19897 (SC); Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ngadi v. FRN (2018) LPELR – 43636 (CA); Mohammed v. State (2015) 13 NWLR (Pt. 1476) 276. He insisted that the failure occasioned a miscarriage of justice to the appellant. He explained that the lower Court merely recorded that the “Defendant is not coherent in his testimony”. He asserted that the Court is bound by the record. He cited Oduneye v. FRN (2014) 13 NWLR (Pt. 1425) 545; Mohammed v. State (supra). He maintained that the denial of the fair hearing rendered the lower Court’s decision a nullity. He referred to Audu v. FRN (supra). He urged the Court to hold that the appellant’s trial and conviction were a nullity.
On behalf of the respondent, learned counsel highlighted the principle governing a person’s right to fair hearing as noted in Nwabueze v. The People of Lagos State (2018) 11 NWLR (Pt. 1630) 201. He contended that the evidence of the appellant was recorded at pages 108 and 109 of the main record. He added that the appellant’s evidence in the transcribed recording is contained at pages 156 – 165 of the additional record. He opined that the lower Court reviewed the appellant’s evidence in the judgment. He stated the meaning of fair hearing as noted in Nwokocha v. A. – G., Imo State (2016) 8 NWLR (Pt. 1513) 141. He persisted that the appellant was given fair hearing and the defence of lack of fair hearing would not avail him. He cited Adebayo v. A. – G., Ogun State (2008) 7 NWLR (Pt. 1085) 201.
Issue two.
Learned appellant’s counsel submitted that none of the witnesses was an eye witness. He described the evidence of PW1 and PW3 as hearsay that is inadmissible in law. He relied on Sections 38, 39, 125, 126 of the Evidence Act; Odogwu v. State (2013) 14 NWLR (Pt. 1373) 74; State v. Masiga (2018) 8 NWLR (Pt. 1622) 383; Maren v. State (2010) 3 NWLR (Pt. 1181) 254. He posited that the evidence of PW2 and PW4 were based on suspicion and inadmissible. He cited Osho v. State (2012) 8 NWLR (Pt. 1302) 243. He urged the Court to discountenance the evidence of PW1 – PW4.
For the respondent, learned counsel argued that the evidence of PW1 and PW3, police officers, were not hearsay. He relied on Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Ayodeji v. FRN (2018) LPELR – 45839 (CA); Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107. He reasoned that the PW2 and PW4 gave direct evidence of what they saw, heard and perceived. He maintained that their evidence were admissible. He observed that the contention that the exhibits were hearsay was abandoned because no argument was advanced on it. He cited Ajibade v. Pedro (1992) LPELR – 297 (SC); Abdullahi v. Nigerian Army (2009) LPELR – 8857 (CA); Fenton Keynes Finance Ltd. v. Transplay Nig. Ltd. (2010) LPELR – 4156 (CA); Shonubi v. Onafeko (2003) 12 NWLR (Pt. 834) 254; Jawando v. Bakare (2012) LPELR – 9758 (CA). He asserted, in the alternative, that the issue of the exhibits being hearsay did not arise from the grounds of appeal and should be disregarded. He referred to Suleiman v. Abubakar Tafawa Balewa University (2019) LPELR – 47708 (CA); Opedule v. Sule (2016) LPELR – 41276 (CA).
On points of law, learned appellant’s counsel postulated that the admissible evidence of a police witness is evidence of what he saw, observed and did in the course of investigation. He cited Ugwumba v. State (1993) 5 NWLR (Pt. 296) 660/6 SCNJ (Pt. II) 217; Ekpo v. State (2001) 7 NWLR (Pt. 712) 292.
Issue three.
Learned appellant’s counsel submitted that the respondent’s evidence on record did not prove the offence beyond reasonable doubt as required by law. He relied on Section 135(1) of the Evidence Act, 2011; Section 36(5) of the Constitution, as amended; Ani v. State (2009) 16 NWLR (Pt. 1168) 443. He enumerated the ingredients of the offence of manslaughter. He cited Maren v. State (supra). He conceded that the deceased died. He reasoned that there was no causal link between the death of the deceased and the act of the appellant. He referred to John v. State (2017) 16 NWLR (Pt. 1591) 304; Kazeem v. Nigerian Army (2019) 15 NWLR (Pt. 1694) 65; Adeleye v. State (2015) 3 NWLR (Pt. 1446) 229; Oforlete v. State (2000) 12 NWLR (Pt. 681) 415. He insisted that there was no proof of such causal link beyond reasonable doubt particularly because of exhibit D1 – the autopsy report. He described the pathologist, who was not called, as a vital witness and fatal to the respondent’s case.
He cited Ochiba v. State (2011) 17 NWLR (Pt. 1277) 663. He took the view that the respondent failed to discharge the burden of proof and the appellant is entitled to an acquittal. He referred to Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515. He noted that exhibits P1 and P2 did not show the appellant’s intention to cause the death of the deceased especially as no weapon was used to infer intention from its nature. He relied on Owhoruke v. C.O.P. (2015) 15 NWLR (Pt. 1483) 557. He reiterated that it is the duty of the respondent to prove the essential elements of the offence charged or the accused will be discharged. He referred to Kazeem v. Nigerian Army (supra).
On the part of the respondent, learned counsel listed the ingredients of the offence of manslaughter. He relied on Adesina v. People of Lagos State (2019) 8 NWLR (Pt. 125 (sic)) 141. He noted that proof beyond reasonable doubt is not beyond a shadow of doubt. He cited Eyo v. State (2016) 7 NWLR (Pt. 1510) 183. He enumerated the three ways to prove crime. He referred to Onitilo v. State (2017) LPELR – 42576 (SC); Okashetu v. State (2016) 15 NWLR (Pt. 1534) 126. He stated that evidence against the appellant was circumstantial evidence. He explained the nature of circumstantial evidence. He cited Esseyin v. State (2018) 14 NWLR (Pt. 1640) 491. He maintained that the circumstantial evidence, especially exhibit P2, was against the appellant. He postulated that medical evidence would be dispensed with where the cause of death is immediate and a proximate action of the accused. He relied on Ahmed v. State (2001) LPELR – 262 (SC). He stated that the appellant’s defence that the deceased was sick was inapplicable as an accused must take his victim as he finds him. He cited Uyo v. A. – G., Bendel State (1986) LPELR – 3452 (SC). He urged the Court to so hold.
On points of law, learned appellant’s counsel posited that the respondent did not call any evidence to show that the deceased had no underling illness. He noted that the respondent must call all material witness. He cited Nwaeze v. State (1996) NWLR (Pt. 428) 1. He stated that the circumstantial evidence did not point to the appellant. He referred to Adisa v. State (1991) 1 NWLR (Pt. 168) 490.
Resolution of the issues.
In the spirit of orderliness, I will attend to the issues in their numerical sequence of presentation by the parties. To this end, I will, without much ado, kick off with the treatment of issue one. The marrow of the issue is canalised within a narrow compass. It chastises and accuses the lower Court of the failure to record the testimony of the appellant, during the trial, before convicting him. In a nutshell, it orbits around fair hearing.
The main plank of the appellant’s quarrel, indeed the thrust of the terminal issue, is that the lower Court’s decision, delivered on 16th February, 2016, was an erosion of his inviolable right to fair hearing as guaranteed by Section 36(4) – (6) of the Constitution, as amended. Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395; La Wari Furniture & Baths Ltd. v. FRN (2019) 9 NWLR (Pt. 1677) 262. Due to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing, a mantra which, nowadays, competes with jurisdiction for prominence in adjudications.
The ancient concept of fair hearing traces its pedigree to divinity. It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and firmly entrenched in Section 36(1) of the Constitution, as amended. It donates to the citizens the inviolable right to ventilate their grievances on the altar of the two concrete pillars of natural justice to wit: audi alteram partem – hear the other side and nemo judex in causa sua – no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative body, an equal opportunity to present their cases. It follows that fair hearing is not synonymous with correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a Court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the feuding parties. Where a person’s right to fair hearing is curtailed, no matter the quantum of dexterity, artistry, transparency or objectivity invested in such a proceeding, it will be caught in the web of nullity. For these attributes of fair hearing, see Kim v. State (1992) 4 NWLR (Pt. 233) 17; Effiom v. State (1995) 1 NWLR (Pt. 373) 507; Ogugu v. State (1994) 9 NWLR (Pt. 366) 1; Uguru v. State (2002) 9 NWLR (Pt. 771) 90; FRN v. Akubueze (2010) 17 NWLR (Pt. 1223) 830; Ogunsanya v. State (2011) 12 NWLR (Pt. 1261) 401; Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; Audu v. FRN (2013) 5 NWLR (Pt. 1348) 397; Adisa v. State (2015) 4 NWLR (Pt. 1450) 475; FRN v. Michael (2018) 6 NWLR (Pt. 1616) 438; Eze v. State (2018) 16 NWLR (Pt. 1644) 1; Azuogu v. State (2018) 16 NWLR (Pt. 1644) 46; Edwin v. State (2019) 7 NWLR (Pt. 1672) 553; FRN v. Ogunrombi (2019) 8 NWLR (Pt. 1675) 538; Adamu v. FRN (2020) 2 NWLR (Pt. 1707) 129.
The apex Court, in Baba v. Civil Aviation (1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See also, JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelaran I (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra). I will be guided by these catalogued elements of fair hearing as the barometer to gauge the appellant’s agitation of infraction of his right to fair hearing.
Now, the main anchor of the appellant’s nursed grievance is weaved on the lower Court’s failure to record the testimony of the appellant in its record of proceeding. It is settled elementary law, beyond any peradventure of doubt, that the Court and the parties are bound by the record. Neither of them can factor into a record what is not there nor subtract from its content. An appellate Court must read the record in its exact content, see Udo v. State (2006) 15 NWLR (Pt. 1001) 179; Bassey v. State (2012) 12 NWLR (Pt. 1314) 209; Osung v. State (2012) 18 NWLR (Pt. 1332) 256; Mohammed v. State (2015) 13 NWLR (Pt. 1476) 276; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; State v. John (2013) 12 NWLR (Pt. 1368) 337.
In total fidelity to the dictate of the law, I have consulted the record, the spinal cord of every appeal. My port of call is at the residence of the defence which is warehoused in the main and additional records. I have perused the records, which are comprehension-friendly, with the finery of toothcomb. The skeleton of the appellant’s evidence, examination-in-chief and cross-examination, held on 2nd July, 2015, colonises pages 108 and 109 of the main record. The terse evidence incorporated the Court recording by reference. The transcribed version of the appellant’s evidence monopolise pages 156 – 165 of the additional record. The proceeding houses the appellant’s evidence during his examination-in-chief and cross-examination. It recorded the appellant’s evidence verbatim ac litterattim. Thus, there are ample demonstrations and concrete evidence that the appellant’s testimony was duly and comprehensively recorded by the lower Court. The gains of this method, transcription of Court proceeding, cannot be overemphasised. It usually captures all aspects of the proceeding of the Court ipsissima verba. It relieves the Judex from the stress of long- hand recording. It affords the Judge the opportunity to pay rapt attention to the witness and lawyers. It promotes the adjudicator’s level of appreciation and concentration on the case. Overall, it facilitates/fast tracks the dispensation of justice.
Indisputably, the provision of Section 36(6) (d) of the Constitution, as amended, the fons et origo of our laws, donates to an accused party (appellant herein) the right to defend himself in person. The case-law has sanctioned the legitimacy of that right, see Shema v. FRN (2018) 9 NWLR (Pt. 1624) 337 Eze v. State (supra); Azuogu v. State (supra); Rabe v. FRN (2019) 4 NWLR (Pt. 1662) 312; Edwin v. State (supra); FRN v. Ogunrombi (supra); Ali v. State (2019) 10 NWLR (Pt. 1680) 289; Adamu v. State (supra). Indubitably, the recorded evidence of the appellant catalogued above, clearly showcases that the appellant’s testimony was properly recorded by the lower Court as disclosed on the record – the bedrock of the appeal. It flows that the appellant was duly accorded equal treatment, opportunity and consideration with its opponent, the respondent, vis-à-vis the delivery of testimony. It must be underscored, apace, that the bounden duty of the Court, whether trial or appellate, is to provide the enabling and hospitable milieu as well as grant the contending parties equal chances to present their cases in the temple of justice. To my mind, the lower Court, in an unbiased manner, created the egalitarian and congenial atmosphere for the appellant to deliver his testimony.
It appears that the appellant erected his grouse on the phrase “Defendant not coherent in this testimony” which is located at page 108 of the main record. It was recorded at the cradle of the skeleton of the appellant’s testimony. It has no place in the transcript of proceedings – the expansive evidence of the appellant. It is therefore devoid of any relevance. It is impotent to ruin the succinct transcribed version of evidence of the appellant. The phrase cannot, under any guise or stretch of elastic imagination, tantamount to an infringement of his inalienable right to fair hearing as enshrined in Section 36(6) of the Constitution, as amended. In effect, the appellant’s inviolate right to fair hearing, as it relates to presentation of his evidence, was not, in the least, trampled upon by the lower Court. It is therefore not available for him to harvest from the vineyard of the beneficent provision of Section 36(4-6) of the Constitution, as amended. In Adebayo v. A. –G., Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221 and 222 the apex Court, per Tobi, JSC, admonished:
…The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.
The magisterial pronouncement, in the ex cathedra authority, with due respect, drowns the appellant’s complaint on the issue. The lower Court’s transcribed recording of the appellant’s testimony was not guilty of the allegation of violation of his right to fair hearing levelled against it. It is a pseudo-charge that is uncharitable and unsustainable. In essence, all the strictures, which the appellant’s learned counsel heaped on it, are, with due respect, idle and peter into insignificance. It will smell of judicial sacrilege to reprobate a judicial exercise that did not disclose any hostility to the law on fair hearing. In the result, I have no option than to resolve the issue one against the appellant and in favour of the respondent.
Having dispensed with issue one, I proceed to settle issues two and three. A clinical audit of the two issues, two and three, amply, reveals that they are intertwined and share a common mission: to puncture the lower Court’s findings after the evaluation of evidence before it. Given this interwoven judicial relationship, I will, in order to conserve the scarce judicial time and for spatial constraint, amalgamate them and fuse their considerations without each issue compromising its identity. Since the communal target of all the issues is a summon on this Court to re-evaluate the evidence, it is imperative to display the essential features of evaluation of evidence as combed out from judicial authorities.
Remarkably, evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in finding of facts. This primary evidentiary duty falls squarely within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate Court, to watch the witnesses, form impression on their demeanour and evaluate the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. An appellate Court is disrobed of the vires to interfere with a finding of a trial Court anchored on demeanour and credibility of witnesses, see Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183, Adebanjo v. State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt. 1695) 289. Where a trial Court has justifiably performed this primary duty, an appellate Court does not form the habit of imposing and/or substituting its views for its own save in exceptional circumstances: where the findings are against the drift of evidence, perverse and smell of miscarriage of justice, see Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ikpa v. State (2018) 4 NWLR (Pt. 1609) 175; Enukora v. FRN (2018) 6 NWLR (Pt. 1615) 355; Sunday v. State (2018) 1 NWLR (Pt. 1600) 251; Ewugba v. State (2018) 7 NWLR (Pt. 1618) 262; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Abbas v. The People of Lagos State (2019) 16 NWLR (Pt. 1698) 213.
Interestingly, the law, in order to repel injustice, donates concurrent jurisdiction to this Court and the lower Court on the evaluation of documentary evidence, see Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350. I will reap from this co-extensive jurisdiction in the appraisal of the galaxy of documentary evidence in this appeal. Again, I will bear in mind these evidential indices as the yardstick to measure the propriety or otherwise of the lower Court’s evaluation of the evidence in the case.
Now, the appellant’s chief grudge, indeed his trump-card on the conjoined issues, centres on the admissibility or otherwise of the evidence of PW1 – PW2. The appellant chastises the lower Court’s reliance on them, in convicting him, when they were inadmissible hearsay.
It is apropos to display and appreciate the purport and hallmarks of hearsay evidence. In our adjectival law, a witness is expected to testify on oath, or affirmation, on what he knows personally. Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname: hearsay or second hand evidence. In the view of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not establish the truth of an event. The purpose of hearsay rule is to shield an accused from being convicted on a testimony of a witness who did not see, hear or perceive, in any other manner, the facts given in evidence, see Sections 37, 38 and 126 of the Evidence Act, 2011; Kasa v. State (1994) 5 NWLR (Pt. 344) 269; FRN v. Usman (2012) 8 NWLR (Pt. 1301) 141; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139; Opara v. A. –G. Fed. (2017) 9 NWLR (Pt. 1569) 61; State v. Masiga (2018) 8 NWLR (Pt. 1622) 383;Simeon v. State (2018) 13 NWLR (Pt. 1635) 128; Saraki v. FRN (2018) 16 NWLR (Pt. 1646) 405; Idi v. State (2019) 15 NWLR (Pt. 1696) 448; Utteh v. State (1992) 2 NWLR (Pt. 223) 257; Kasa v. State (1994) 5 NWLR (Pt. 344) 269; Arogundade v. State (2009) 6 NWLR (Pt. 1136) 165; Simeon v. State (2018) 13 NWLR (Pt. 1635) 128.
In a spirited bid to castrate the lower Court’s decision, the appellant stigmatised the evidence of PW1 and PW3 as inadmissible hearsay. It is decipherable from the record, the fulcrum of the appeal, that the PW1, Inspector Chinyere Amasor, and PW3, Inspector Ndubuisi Okorocha, were the Investigating Police Officers (IPOs) who investigated the case, which mothered the appeal, prior to the arraignment of the appellant before the lower Court. Does the law categorise their evidence as inadmissible hearsay? In Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107 at 125 Sanusi, JSC, incisively, declared:
On the appellant’s counsel’s submission that the testimony of PW3 was hearsay, I am also at one with the lower Court’s conclusion that such testimony as given by the PW3 was not and cannot be described as hearsay evidence. To my mind, all that the PW3 (IPO) did was to give evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator. His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contract (sic) within the course of his investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundade v. The State (2009) All FWLR (Pt. 469) (SC) 423; (2009) 6 NWLR (Pt. 1136) 165.
See also Olaoye v. State (2018) 8 NWLR (Pt. 1621) 281; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252. It stems from this magisterial pronouncement that the law has totally severed the evidence of an Investigating Police Officer (IPO) of a case from hearsay and coronated it with the toga of admissible evidence. These ex cathedra authorities, with due respect, wholly deflates the appellant’s counsel’s elegant contention on the point. The contention is disabled in their presence. I therefore refuse the appellant’s request to ostracise and expunge the evidence of PW1 and PW3 on the ground of phantom hearsay. Contrariwise, I welcome their testimonies as usable evidence in the appeal.
By the same token, the evidence of PW2 and PW4 cannot be branded as inadmissible hearsay. The reason is not far-fetched. PW2, Segun Shotunde, was the appellant’s landlord who heard the voices of the appellant and deceased in the heat of their quarrel. He knocked on the door but the appellant refused to open it for him. Ditto for the PW4, Mr. Samuel Adenowo. Even though PW4 was physical challenged, as regards his sight, his evidence was pegged on what he perceived through his other senses. In essence, their parol testimonies were totally divorced from the four walls of hearsay evidence. At once, their testimonies have no romance with suspicion as pontificated by the appellant. They were classic exemplification of direct evidence which the law, ex debito justitiae, accommodates unreservedly.
This legal anatomy on hearsay evidence, done in due allegiance to the law, reveals that the lower Court’s reliance and utilisation of the evidence of PW1 – PW4 was in total alignment with letter and spirit of the procedural law. The lower Court’s conduct was unimpeachable as to magnet the reprobation of this Court. I accord it a wholesale affirmation.
Another coup de main, which the appellant nursed against the decision, appertains to the lower Court’s finding on proof of the offence (manslaughter) against the appellant. It was contended forcefully that the respondent did not establish beyond reasonable doubt the offence of manslaughter, laid against the appellant, and that the lower Court erred when it found him guilty of it.
By way of prefatory observations, manslaughter is an unintentional (not premeditated) killing of a human being, see Ejeka v. State (2003) 7 NWLR (Pt. 819) 408; Egbirika v. State (2014) 4 NWLR (Pt. 1398) 558; Famakinwa v. State (2016) 11 NWLR (Pt. 1524) 538; Popoola v. State (2018) 10 NWLR (Pt. 1628) 485. Any person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter, see Section 317 of the Criminal Code Law, Laws of Lagos State, 2003; Udo v. Queen (1964) 1 All NLR 21; Omini v. State (1999) 12 NWLR (Pt. 630) 168; Apugo v. State (2006) 16 NWLR (Pt. 1002) 227; Chukwu v. State (2013) 4 NWLR (Pt. 1343) 1; Oketaolegun v. State (2015) 13 NWLR (Pt. 1477) 538; Famakinwa v. State (supra); John v. State (2017) 16 NWLR (Pt. 1591) 304; Simeon v. State (2018) 13 NWLR (Pt. 1635) 128; Adesina v. The People of Lagos State (2019) 8 NWLR (Pt. 1673) 125.
The law classifies manslaughter into two classes, videlicet: voluntary or involuntary manslaughter. Voluntary manslaughter occurs when a person intentionally kills another but the offence is reduced from murder to manslaughter because of provocation. Involuntary manslaughter occurs where a person causes the death of another under such circumstances that he did not intend to kill and did not foresee death as a probable consequence of his conduct but there is some blameworthiness, such as gross negligence, in this conduct, see C.O. Okonkwo and Naish, Criminal Law in Nigeria, second edition (Ibadan: Spectrum Law Publishing Ltd., 1990) pages 240 and 253; Famakinwa v. State (supra); Adegboye v. State (supra).
For the prosecution to succeed and secure conviction for the offence of manslaughter, it must prove: (a) that the act of the accused was unauthorized or unjustified or not excused; (b) that death resulted from the direct or indirect act of the accused by the unlawful act of the accused person; and (c) that the death of the deceased was linked to the act of the accused person, see Oforlete v. State (2000) 12 NWLR (Pt. 681) 415; Amayo v. State (2001) 18 NWLR (Pt. 745) 251; Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515; Apugo v. State (2006) 16 NWLR (Pt. 1002) 227; Egbirika v. State (2014) 4 NWLR (Pt. 1398) 558, Nwabueze v. The People of Lagos State (2018) 11 NWLR (Pt. 1630) 201; Adesina v. The People of Lagos State (2019) 8 NWLR (Pt. 1673) 125.
In an abiding loyalty to the dictate of the law, I made another excursion into the record, the touchstone of the appeal, especially at the abode of the judgment of the lower Court, in the heat of expunction, which spans pages 138 – 155 of the additional record. I have given an intimate reading to it. Interestingly, it is rebellious to woolliness. A panoramic view of the judgment, clearly, discloses that the lower Court employed circumstantial evidence in finding the appellant guilty of the offence. The appellant has castigated the lower Court’s reliance on that specie of evidence.
It admits of no argument that the law gives the prosecution three avenues/means to prove ingredients of an offence. They are through: a confessional statement, circumstantial evidence or evidence of eye witness, see Igri v. State (2012) 16 NWLR (Pt. 1327) 522; Oguno v. State (2013) 15 (Pt. 1376) 1; Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305; Ogedengbe v. State (2014) 12 NWLR (Pt. 1421) 338; Umar v. State (2014) 13 NWLR (Pt. 1425) 497; Itu v. State (2016) 5 NWLR (Pt. 1505) 443; Ude v. State (2016) 14 NWLR (Pt. 1531) 122; Okashetu v. State (2016) 15 NWLR (Pt. 1534) 126; Igbikis v. State (2017) 11 NWLR Pt. 1575) 126; State v. Ibrahim (2019) 8 NWLR (Pt. 1674) 294; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1; Iorapuu v. State (2020) 1 NWLR (Pt. 1706) 391. Thus, the lower Court’s invitation of circumstantial evidence was not offensive to the law.
At this juncture, it is important to appreciate the purport and elements of circumstantial evidence in our criminal justice system. In Mohammed v. State (2007) 11 NWLR (Pt. 1045) 303 at 327; I.T. Muhammad, JSC (now CJN) explained it in these illuminating words:
It is the proof of circumstances from which, according to the ordinary course of human affairs the existence of some fact may reasonably be presumed… It is that evidence of surrounding circumstances which by un-designed coincidence, is capable of proving a proposition with the accuracy of mathematics.
It has been described, at times, as the best evidence in that witnesses can lie, but circumstances cannot lie. For it to ground conviction, it must be positive, compelling, direct and link an accused with the offence. It is an amphibious evidence in that it has a place in criminal and civil proceedings, see Usman v. State (2013) 12 NWLR (Pt. 1367) 76; Isma’il v. State (2011) 17 NWLR (Pt. 1277) 601; Odogwu v. State (2013) 14 NWLR (Pt. 1373) 74; Oguno v. State (2013) 15 NWLR (Pt. 1376) 1; Yakubu v. State(2014) 8 NWLR (Pt. 1408) 111; Usman v. State(2014) 12 NWLR (Pt. 1421) 207; Udor v. State (2014) 12 NWLR (Pt. 1422) 548; Aikhadueki v. State (2014) 15 NWLR (Pt. 1431) 530; Abokokuyanro v. State (2016) 9 NWLR (Pt. 1516) 110; Ogogovie v. State (2016) 12 NWLR (Pt. 1527) 468; Ezeuko v. State (supra); Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Igbikis v. State (2017) 11 NWLR (Pt. 1575) 126. Paul v. State (2019) 12 NWLR (Pt. 1685) 54; Orisadipe v. State (2019) 13 NWLR (Pt. 1688) 24; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1.
Let me observe quickly that deployment of inference is an indispensable component of circumstantial evidence. In law, inference is: “A conclusion reached by considering other facts deducing a logical sequence from them”, see Muhammad v State (2017) 13 NWLR (Pt. 1583) 386 at 420, per Augie, JSC. The law gives the Court the wide latitude to draw inferences, see Babatunde v. State (2014) 2 NWLR (Pt. 1391) 298; Owhoruke v C.O.P.(2015) 15 NWLR (1483) 557; Morah v. FRN (2018) 15 NWLR (Pt. 1641) 60.
In the first place, the appellant made pre-trial statements which were admitted in evidence as exhibits P1 and P2. Even though, the appellant was their owner, they deserted the defence and transmuted into the respondent’s case, Egboghonome v. State (1993) 7 NWLR (Pt. 306) 385; Musa v. State (2013) 9 NWLR (Pt. 1359) 214; Ikumonihan v. State (2018) 14 NWLR (Pt. 1640) 456; Ayinde v. State (2018) 17 NWLR (Pt. 1647) 140; Ifedayo v. State (2019) 3 NWLR (Pt. 1659) 265; Mohammed v. State (2019) 6 NWLR (Pt. 1668) 203; State v. Ibrahim (supra); State v. Buhari (2019) 10 NWLR (Pt. 1681) 583; State v. Shonto (2019) 12 NWLR (Pt. 1686) 255; Edun v. FRN (supra). It flows from the evidential transfiguration and migration that their contents became part and parcel of the respondent’s case.
Again, I have visited the record, the keystone of the appeal. The respondent’s oral evidence is wrapped between pages 81 – 106 of the main. There were/are concrete pieces of evidence on record, offered by the PW2 and PW4, that on that fateful day, the appellant battered/assaulted the deceased, his wife, in their locked-up one room apartment. The appellant refused them ingress into it despite repeated knocks on the door to rescue the deceased based on the alarm she raised. In exhibit P2, the appellant admitted that he dragged out and slapped the deceased and she fell down “on the chair in my one room apartment nursing the pain”. This undiluted admission corroborates the pungent evidence of PW2 and PW4 on the assault the appellant rained on the deceased whilst holed up in their one room apartment. Battery or assault on a person falls squarely within the firmament of criminality. In realm of criminal law, offence connotes an illegal act or a crime. It is a violation of a law for which penalty is prescribed. It is an act that is prohibited by the lawful authority of the state, see Ifeanyi v. FRN (2018) 12 NWLR (Pt. 1632) 164. In effect, battery/assault is a sterling instance of an unauthorised/unjustified act/conduct.
There were strong and unchallenged evidence, proffered by the respondent’s prime witnesses, PW2 and PW4, who were milling around the locus criminis, that no sooner had the appellant unbolted/unlocked and exited their one room locus delicti than the deceased started vomiting blood – a quintessence of hemorrhage which is indicated as one of the causes of her death in exhibit D1. Ample evidence disclosed that sooner than later, at about 1pm, the deceased expired in the hands of their neighbour sympathisers. The irresistible evidence, drawable/inferrible from the impregnable evidence, was that the demise of the deceased was an offspring of the indirect and unlawful act of the appellant’s assault on her. It stemmed from these pieces of evidence that there was ample causal nexus between the death of the deceased and the inexcusable act of the appellant. A causal link exists in the face of a proximate cause/event done by a person whose conduct terminated the life of another. I must stress that those pieces of evidence were incontrovertible testimonies on the incidents surrounding the death of the deceased. The law grants the Court the unbridled licence to act/rely on unchallenged evidence, see Ayeni v. State (2016) 12 NWLR (Pt.1525) 51; Mathew v. State (2018) 6 NWLR (Pt. 1616 561; Gana v. FRN (2018) 12 NWLR (Pt. 1633) 294; Musa v. State (2018) 13 NWLR (Pt. 1636) 307; Bassey v. State (2019) 18 NWLR (Pt. 1703) 126; Sale v. State (2020) 1 NWLR (Pt. 1705) 205.
It cannot be gainsaid, decipherable from the evidence of the respondent’s star witnesses, PW2 and PW4, that the appellant was alone with the deceased in their inaccessible one room apartment. Samuel, their 17 months old baby boy was, in the mind of the law, doli incapax – incapable of committing a crime. In essence, no other person committed the act of battery/assault on the deceased that snowballed into her untimely death. The classic evidence, catalogued above, amply, neutralise the effervescence of the incessant denial and weak-kneed defence of want of causal linkage erected, brandished and paraded by the appellant. The pieces of uncontradicted sterling evidence, presented by the respondent, are positive, compelling, direct and irresistibly link/point at, with the mathematical accuracy even, that the appellant was the particeps criminis in the offence of manslaughter laid against him. Those pieces of critical evidence, furnished by the respondent, with due reverence, expose the poverty of the appellant’s seemingly scintillating contention on the stubborn point. It flows that the lower Court did not, in the least, fracture the adjectival law in its employment of circumstantial evidence against the appellant to fetch the reprobation of this Court. Per contra, I endorse it in toto.
In a spirited bid to decimate the lower Court’s decision, the appellant invented two defences. The one is anchored on the medical report. The other is pegged on the infirmity of the deceased. The appellant decried the lower Court’s failure to find in his favour on the two defences. I take them seriatim.
In the appellant’s defence, he tendered a medical report: a post mortem report conducted on the corpse of the deceased. Its admission was not greeted with any opposition by the respondent. It was admitted as exhibit D1. It is reflected between pages 97-103 of the main record. It was authored by one consultant pathologist – Dr. S.S. Soyemi. To begin with, in the twilight of the medical report, the exhibit D1, at page 103 of the main record, the consultant pathologist, inter alia, found: “7 Bruises on the face, right hand, left elbow and abdominal wall”. He identified “Massive haemorrhage” as one of the causes of death. These findings, to my mind, are consistent with the assault the appellant unleashed on the deceased. The bruises all over her body were the aftermath of the battery on her. Vomiting blood has serious linkage with massive haemorrhage – discharge of blood from the blood vessel. In effect, the medical report/evidence consolidates the evidence proffered by the respondent on what befell the deceased on that fateful day.
In any event, the heavy weather which the appellant made about the admission of exhibit D1 is unwarranted in law. Medical evidence, which encompasses medical report, is no longer sine qua non for proof of homicide cases in criminal jurisprudence. It is settled law that medical evidence is rendered otiose where: death is instantaneous on attack, the cause of death is known or could be inferred from the circumstances of evidence adduced or there is abundant evidence of the manner of death, see Ogba v. State (1992) 2 SCNJ/(1992) 2 NWLR (Pt. 222) 164; Ubani v. State (2003) 18 NWLR (Pt. 851) 224; Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515; Ben v. State (2006) 16 NWLR (Pt. 1006) 582; Ogbu v. State (2007) 5 NWLR (Pt. 1028) 635; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72; Afosi v. State (2013) 13 NWLR (Pt. 1371) 329; Maigari v. State (2013) 13 NWLR (Pt. 1384) 425; Galadima v. State (2017) 12 NWLR (Pt. 1580) 339; Muhammad v. State (2017) 14 NWLR (Pt. 1583) 386; Galadima v. State (2017) 14 NWLR (Pt. 1585) 187; Ukpong v. State (2019) 6 NWLR (Pt. 1667) 1; Hamza v. State (2019) 16 NWLR (Pt. 1699) 418; Sani v. State (2020) 11 NWLR (Pt. 1736) 490. Thus, the medical report, exhibit D1, which the appellant waved about to douse the respondent’s case, was disabled from its birth. It counted against his case. Contrariwise, it concretises the evidence of the respondent.
The other defence, contrived by the appellant to insulate it against the crime, pertains to the deceased’s ailment. It was contended, on behalf of the appellant, that the deceased was sick-suffering from cough and pneumonia. The import of the defence, in my humble view, is that since the deceased was unhealthy, it was necessary to snuff life out of her by accelerating her death. This defence, to all intents and purposes, exudes the hallmarks of mercy killing or euthanasia (easy death) – “The act or practice of causing or hastening the death of a person who suffers from an incurable or terminal disease or condition, especially a painful one, for reasons of mercy”, see Bryan A. Garner, Blacks Law Dictionary, 10th edition (USA: West Publishing Co., 2004) page 672. In our criminal jurisprudence, the defence of euthanasia/mercy killing is not available to an accused charged with homicide. The reason is plain. Every person is entitled to his right to life as guaranteed and propagated in Section 33 of the Constitution, as amended. Incontestably, the right to life is not an absolute or inviolable one as it admits of certain exceptions in deserving circumstances under which a citizen may lose his life. See Amoshina v. State (2011) 14 NWLR (Pt. 1268) 530; ACN v. INEC (2013) 13 NWLR (Pt. 1370) 161; Kalu v. FRN (2016) 9 NWLR (Pt. 1516) 1; Folorunso v. State (2020) 15 NWLR (Pt. 1746) 33.
However, euthanasia/mercy killing does not come under the province of those exceptions. In R. V. Nta (1961) All NWLR 590, the accused struck the deceased, who had an enlarged spleen due to chronic malaria, twice in the stomach and he died. The Supreme Court convicted the accused for manslaughter. Besides, the fact that the appellant had full knowledge of the deceased’s infirmity was the more reason he should have restrained himself from assaulting the deceased. In effect, the defence of infirmity or mercy killing/euthanasia, mounted by the appellant to demolish the respondent’s case and escape the trap of justice, was lame and mired in the quicksand defeasibility. The appellant cannot reap from the sanctuary of the defence that has no imprimatur of the law. It will therefore irritate the law to make the phony defence available to the appellant.
My noble Lords, it stems from this expansive tour d’ horizon on evaluation of evidence, done in due loyalty to the law, that the respondent proved the necessary ingredients of the offence of manslaughter preferred against the appellant beyond reasonable doubt as decreed by Section 135 (1) of the Evidence Act, 2011. After all, proof beyond reasonable doubt does not evince proof beyond all iota/shadow of doubt, see Banjo v. State (2013) 16 NWLR (Pt. 1331) 455; Umar v. State (2014) 13 NWLR (Pt. 1425) 497; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Agu v. State (2017) 10 NWLR (Pt. 1573) 171; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Ofordike v. State (2019) 5 NWLR (Pt. 1666) 395; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1. In the legal parlance, proof beyond reasonable doubt is attained when the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”, see Maigari v. State (2013) 17 NWLR (Pt. 1384) 425. It implies that the solemn finding of the lower Court, which inculpated the appellant, as the perpetrator of the offence charged, is unassailable. Due to its unimpeachable status, this Court is robbed of the jurisdiction to tinker with it, seeOlatunbosun v. State (2013) 11 NWLR (Pt. 1382) 167; Ogie v. State (2017) 16 NWLR (Pt. 1591) 287.
Flowing from the above juridical survey, the lower Court did not offend the law when it found ultimately that the respondent proved beyond reasonable doubt, the offence of manslaughter preferred against the appellant. The lower Court acted ex debito justitiae and the finding is faultless. On this score, I therefore, with due respect, dishonour the learned appellant’s counsel’s salivating solicitation to sacrifice the decision on the undeserved altar of improper and perfunctory evaluation of evidence for want of legal justification. In the end, I have no option than to resolve the conflated issues two and three against the appellant and favour of the respondent.
By way of obiter, this case is a good lesson for men who convert their wives into punching bags. Marriage is a social relationship divinely ordained for the purposes of procreation and companionship. It is not a battlefield where spouses engage in endless duel to the advantage of the stronger. When life is lost owing to marital feud, the law will hunt the culprit to the gallows. It will ignore the hardships that will befall the offspring of such a marriage that is engulfed and embroiled in marital imbroglio. On this score, it is wiser to act with restraint in domestic quarrels. The appellant must be full of regrets for his unwarranted unfriendly actions to the deceased.
On the whole, having resolved the three issues against the appellant, the destiny of the appeal is obvious. It is devoid of any ounce of merit and liable to the reserved penalty of dismissal. Consequently, I dismiss the appeal. I affirm the judgment of the lower Court delivered on 16th February, 2016.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I was privileged to read in draft, a copy of the lead judgment just rendered by my learned brother Obande Festus Ogbuinya JCA. I also agree that the Appeal is devoid of any ounce of merit and is accordingly dismissed by me. I abide with all the consequential orders in the lead judgment.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I had the advantage of reading, in draft, the judgment just delivered by my learned brother, Obande Festus Ogbuinya, JCA and I give my concurrence to it. I agree with the judicial reasoning and conclusions reached on the issues raised in this appeal, which I adopt as my own.
Appearances:
Pamela Okoroigwe, Esq. For Appellant(s)
Oluwaseyilayo Ojo, Esq. For Respondent(s)
