MOHAMMED v. STATE
(2020)LCN/14165(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, May 29, 2020
CA/A/1023C/2019
Before Our Lordships:
Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal
Adamu Jauro Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
ISHIAKA MOHAMMED APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
IMPORTANCE AND COMPETENCE OF A CHARGE IN CRIMINAL CASES
The law over the years has been settled that a charge is important in any criminal case and that for its competence, it must tell the person accused enough, so that he may know the case alleged against him and prepare his defence. The charge must not therefore have defects or errors which could mislead the accused.
However, the emphasis is not on whether or not there were defects, errors or omissions in the charge, but on whether or not those defects, errors or omissions could and did in fact misled the defence. Subject to the above, a defect, error or omission which does not prejudice the defence is no ground for quashing the conviction on a charge for a known offence. See the case of OGBOMOR V. THE STATE (1985) LPELR – 2286 (SC).
In as much as a charge is to be drafted in a proper way to enable the accused person be informed of the alleged offence he is being tried for, any procedural omissions or omission to prepare a charge will not render the charge incompetent or the trial a nullity except where the accused person can go further to prove that the omission has occasioned a miscarriage of justice. PER JAURO, J.C.A.
RAISING OBJECTION TO A CHARGE IN CRIMINAL CASES
Also by Section 382 of the Criminal Procedure Code, the Court shall have regard to whether the objection could be and should have been raised at an earlier stage in the proceedings. In MAGAJI V. NIGERIAN ARMY (2008) LPELR – 1814 (SC), the Supreme Court held among others that:-
“Any objection to a charge for any formal defect on the face thereof or for any perceived irregularity relating to procedure, shall be taken immediately after the charge has been read over to the accused and not later. In the instant case, there was no evidence on the record that the Appellant or his Counsel ever raised any objection either before or after the charge was read to the Appellant and he pleaded to it as to the competence of the General Court Martial and the Jurisdiction in respect of the charge”. PER JAURO, J.C.A.
STANDARD OF PROOF IN CRIMINAL TRIALS
The law is long settled that in a criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO V. THE STATE (1989) 4 NWLR (Pt. 113) 57. PER JAURO, J.C.A.
CULPABLE HOMICIDE
Culpable homicide not punishable with death is akin to the offence of manslaughter. In SHOSIMBO VS THE STATE (1974) All NLR 603, the Supreme Court stated that “for the offence of manslaughter it is not necessary to prove any intent to kill or do grievous bodily harm provided there is proof that the unlawful act of the accused caused some harm to the deceased which harm caused his death.” To sustain a charge of culpable homicide not punishable with death, it is sufficient if the Respondent proved that the said act of the Appellant was unlawful, unauthorized and inexcusable in law and/or that it was rash and reckless without due regard or consideration for its consequences and/or that it was negligent – STATE VS BELLO AYINDE (1976-77) NNLR 38, BABALOLA VS STATE (1978-79) NNLR 31, ADAMU VS STATE (2014) LPELR – CA/K/373/C/2013. PER JAURO, J.C.A.
MEANS BY WHICH THE PROSECUTION CAN PROVE ITS CASE AGAINST AN ACCUSED PERSON
The law is long settled that the prosecution can prove its case against the accused person by all or any of the following means:
i. Evidence of any eye witness of the crime;
ii. Confession or admission when voluntarily made by the accused; and
iii. Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence. PER JAURO, J.C.A.
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Kogi State, sitting in Ankpa delivered by Honourable Justice A.N. Awulu in Case No. AHC/5C/2018 on 17th July, 2019 wherein the Appellant was found guilty for the offence of Culpable Homicide not punishable with death and sentenced to 10 years imprisonment.
BRIEF STATEMENT OF FACTS
The Appellant was charged with a lone count of Culpable Homicide not punishable with death contrary to Section 224 of the Penal Code. The said charge at page 2 of the Record of appeal is hereunder reproduced as follows:
“That you Ishiaka Mohammed (M) on or about the 17th day of November 2017 at No. 5 Zaria Road, Anpka Local Government Area within the Kogi State Judicial Division committed culpable homicide not punishable with death in causing the death of one Saad Abubakar by doing an act which you knew was likely to cause him death to with(sic); while engaged in a fight with the said Saad Abubakar you stabbed him with a knife.”
The case of the Respondent as prosecution in the Court below was that on the 17th November, 2017 at
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about 12:20 pm at Ankpa, Kogi State, the Appellant and the deceased were engaged in a fight which caused death of the deceased. In discharging the burden of proof imposed on it by law, the Respondent called two witnesses who testified as PW1 and PW2 and tendered 4 exhibits, marked exhibits P1, P2, P3 and P4. Exhibit P1, which were the photographs of the corpse of the deceased, were rejected in evidence and marked Exhibit P1 rejected. The Appellant’s statement made at the State CIID, Kogi State was admitted as Exhibit P2. The attestation form annexed to the statement credited to the Appellant was admitted as Exhibit P3 and lastly, the Post-Mortem examination was admitted in evidence as Exhibit P4. After the close of the prosecution’s case, the Appellant was called upon to give his defence for which he testified solely and called no other witness. The case of the Appellant was that on 17th November, 2018 at about 12 noon, he left Timber Shed where he works to the house to buy drugs. According to him, on getting home, he saw a large crowd of people and on enquiry, he was told that his aunty was ill and was taken to the hospital. According to him, he
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went to the hospital where he saw the deceased and asked him about what the matter was but he refused to answer him. Thereafter, he went inside to see the deceased mother that was admitted in the hospital, after which he heard noise outside and the deceased rushed inside to stab him on the forehead. Finally, he stated that one Yakubu took him to the Police Station to lodge a complaint but when the police went to invite the deceased, he was not found at home and so he (the Appellant) went home without knowing that the deceased was hiding in the room and immediately he entered the room, the deceased rushed at him and struck him again with a knife and in an attempt to avoid the said knife, his elbow hit the deceased and the deceased fell on his knife injuring him on the side.
After the address of counsel to the parties, the trial Court in a considered judgment delivered on 17th, July 2019 found the Appellant guilty and sentenced him to 10 years imprisonment.
Exercising his right of appeal, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 8th August, 2019 and filed on 17th September, 2019. The said Notice of
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Appeal containing the following three grounds of appeal can be found at pages 56 – 58 of the record of appeal.
“GROUND ONE
The trial Court erred in law when it assumed jurisdiction over the case, tried and convicted the Appellant even when the Appellant was not charged under any known law.
GROUND TWO
The trial Court erred in law when it convicted the Appellant, holding that the prosecution had proved beyond reasonable doubt that the Appellant knew that death was likely consequent of stabbing the deceased with a knife while engaged in a fight.
GROUND THREE
The judgment of the trial Court is against the evidence adduced before the Court.”
In line with Rules of this Court, the parties filed and exchanged their respective briefs. The Appellant’s Brief of argument is dated 31st October, 2019 and filed on 8th November, 2019. The said Brief was settled by JOE ABAH ESQ. who at paragraph 3.0 of the Appellant’s Brief distilled two issues for the determination of the appeal to wit:
“1. Whether the trial Court properly assumed jurisdiction over the case, tried and convicted the Appellant when
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the Appellant was not charged under any known law. Distilled from Ground 1.
2. Whether the trial Court was right when it convicted the Appellant, holding that the prosecution had proved culpable homicide not punishable with death that the Appellant knew that death was the likely consequence of stabbing the deceased with a knife on the back which engaged in a fight. Distilled from Grounds 2 & 3.”
The Respondent’s Brief of Argument on the other hand is dated 24th December, 2019 and filed on 30th December, 2019. The said Brief was settled by H.O. ABDULLAHI, ACTING DIRECTOR OF PUBLIC PROSECUTIONS, MINISTRY OF JUSTICE, LOKOJA, KOGI STATE. Counsel at paragraph 3.0 distilled a sole issue for the determination of this appeal to wit:
“Whether from the evidence adduced by the prosecution, the High Court sitting in Ankpa was right in convicting the Appellant for the offence of culpable homicide not punishable with Death and sentencing him to 10 years imprisonment for the one count charge. Distilled from Grounds 1, 2 and 3 of the Notice and Grounds of Appeal.”
APPELLANT’S ARGUMENTS
On the first issue distilled by
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learned counsel to the Appellant, he submitted that the trial Court, did not properly assume jurisdiction when it tried and convicted the Appellant when the Appellant was not charged under a known law. He argued that it is the law that in drafting a charge, its content should include the name of the accused person, the date of the commission of the offence, the statement of offence committed in its ordinary name, name of the person or thing in respect of which the offence was committed, the enactment and the section thereof allegedly contravened and the signature of the person drafting the charge. He referred this Court to the cases ofJOHN BABANI ELIAS V. FRN (2016) LPELR – 40797 (CA); FRN V. OGUNYOMI SEUN SAMUEL (2017) LPELR – 43417 (CA).
He submitted further that the failure of the Respondent to arraign the Appellant under a valid or competent charge is a constitutional breach which cannot be waived. He relied on the provision of Section 36(6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is the contention of counsel that a careful look at the charge for which the Appellant was convicted and accordingly
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sentenced will show that the enactment and the section allegedly contravened by the Appellant was not provided thereby leaving the charge in the realm of speculation. In his final analysis of this issue, he submitted that the charge with which the Appellant was tried was incompetent and consequently rendered the trial Court bereft of the jurisdiction. He argued that where a Court has no jurisdiction, its proceedings and or judgment no matter how beautifully conducted is a nullity. He referred this Court to the case of IBORI ONANEFE & ANOR V. FRN & ORS (2008) LPELR – 8370 (CA) P.44 – 45 PARA E.
On issue two, counsel argued that the law is trite that there is evidential burden on any one who alleges the commission of crime to prove that such crime was indeed committed by the Accused person and the standard of proof required under our jurisprudence is proof beyond reasonable doubt. He referred this Court to Section 131 (1) & (2) of the Evidence Act 2011 (as amended). He submitted that the fact the Appellant was not charged under any law, the offence of culpable homicide not punishable with death is provided for in Section 224 of the Penal Code
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. He argued that it is trite that to prove a criminal charge of culpable homicide under the aforementioned section, the prosecution is required to prove the following ingredients beyond reasonable doubt:
i. The death of the person in question;
ii. That such death was caused by the act of the Accused;
iii. That the accused intended that by such act to cause death or that he intended by such act to cause such bodily injury as was likely to cause death or that he knew that such act would be likely to cause death or that he caused the death by rash or negligent act.
He submitted that the prosecution failed woefully to prove the ingredients of the alleged offence against the Appellant. He submitted further that in proving the alleged offence, the Respondent is required by law to prove that the death of the deceased was a product of the acts of the Appellant by adducing direct and positive evidence. It is his submission that the evidence led by the prosecution seeking to link the Appellant with the alleged offence of culpable homicide not punishable with death is manifestly riddled with material contradictions such that the trial Court
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ought not to have relied on them to convict the Appellant. It is his contention that the prosecution witnesses all testified that the deceased was stabbed on the back by the Appellant and which stabbing resulted in the death of the deceased while Exhibit P4 which is the post mortem examination report traced the cause of death of the deceased to a stab on the left mid chest. He contended further that the content of Exhibit P4 corroborates the story of the Appellant that the deceased fell on his knife in the process of struggle between him and the deceased. He submitted that for the prosecution to be seen to have proved that it was the act of the Appellant that led to the death of the deceased person, the medical report in Exhibit P4 cum the evidence led by the prosecution must unequivocally establish the death of the deceased and the necessary link between the death and the alleged unlawful act of the Appellant. He referred this Court to the case of ANTHONY THOMSON EBONG V THE STATE (2011) LPELR – 3789 (CA). On the whole, he submitted that in view of the apparent and seeming discrepancy between the evidence led and the medical report tendered by the
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prosecution at the trial, the lower Court ought not to have relied on same in convicting the Appellant. He therefore urged this Court to resolve the issues distilled in favour of the Appellant and allow the appeal.
In response to the first issue distilled by the Appellant i.e. whether the trial Court properly assumed jurisdiction over the case, tried and convicted the Appellant when the Appellant was not charged under a known law, learned counsel to the Respondent submitted that there was no objection as to whether the Appellant understood the charge or that the charge was ridden with any ambiguity because he pleaded not guilty to the charge, having understood the offence that was alleged against him. He submitted further that the Appellant and his counsel understood that the Appellant was being tried for causing the death of Saad Abubakar, offence of Culpable Homicide not punishable with death and contrary to Section 224 of the Penal Code. He referred this Court to the cases of ONWUGHALU V. FRN (2019) LPELR – 47313 (CA); FRN V. ADAMU (2018) LPELR – 46024(CA).
On issue 2 distilled by the Appellant, counsel to the Respondent submitted
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that prosecution was able to establish through their pieces of evidence that the death of a human occurred and this occurrence was caused by the act of the Appellant. He submitted further that this fact was buttressed by Exhibits P2, P3 and P4 tendered and admitted in evidence. It is his submission that Exhibit P2, being the statement credited to the Appellant where he confessed to having stabbed the deceased on the neck with a knife was corroborated by the testimony of PW2 and that the postmortem examination was in tandem with the testimonies of the prosecution witnesses. It is his further submission that the Appellant had no objection to the admissibility of exhibit P2 when it was sought to be tendered. On the legal position of a confessional statement admitted without any objection registered by an accused person, counsel referred this Court to the cases of ILIYA V. STATE (2019) LPELR – 47728 (CA); IBEME V. STATE (2013) LPELR – 20138(SC). He therefore submitted that the prosecution has proved the case against the Appellant beyond reasonable doubt and urged this Court to hold so. On the whole, he urged this Court to uphold the conviction of the
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trial Court and dismiss the appeal for lacking in merit.
RESOLUTION
I have perused the record of appeal compiled and duly transmitted in this case; the brief of arguments filed by both parties as well as the issues distilled for determination across the divide. I have also reviewed the evidence adduced at the trial which was relied upon by the trial Judge in reaching his decision that is being challenged now.
Thus; having considered the issues so formulated by the parties and the grounds of appeal duly filed by the Appellant, I shall adopt the issues distilled by the Appellant for the determination of this appeal. For clarity purpose, the said issues are hereunder reproduced to wit:
“1. Whether the trial Court properly assumed jurisdiction over the case, tried and convicted the Appellant when the Appellant was not charged under any known law. Distilled from Ground 1.
2. Whether the trial Court was right when it convicted the Appellant, holding that the prosecution had proved of culpable homicide not punishable with death that the Appellant knew that death was the likely consequence of stabbing the deceased with a knife on the
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back which engaged in a fight. Distilled from Grounds 2 & 3.”
RESOLUTION OF ISSUE 1
Under issue 1, learned counsel made concerted efforts to submit that the trial Court was robbed of the jurisdictional competence to try the Appellant as a result of the defect on the face of the charge which the Appellant was tried and subsequently convicted. In the argument of the Appellant Counsel at paragraph 4.3 of the Appellant’s Brief, the charge did not disclose the enactment and the section allegedly contravened by the Appellant, leaving the charge in the realm of speculation or inference.
The law over the years has been settled that a charge is important in any criminal case and that for its competence, it must tell the person accused enough, so that he may know the case alleged against him and prepare his defence. The charge must not therefore have defects or errors which could mislead the accused.
However, the emphasis is not on whether or not there were defects, errors or omissions in the charge, but on whether or not those defects, errors or omissions could and did in fact misled the defence. Subject to the above, a defect,
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error or omission which does not prejudice the defence is no ground for quashing the conviction on a charge for a known offence. See the case of OGBOMOR V. THE STATE (1985) LPELR – 2286 (SC).
In as much as a charge is to be drafted in a proper way to enable the accused person be informed of the alleged offence he is being tried for, any procedural omissions or omission to prepare a charge will not render the charge incompetent or the trial a nullity except where the accused person can go further to prove that the omission has occasioned a miscarriage of justice. In the instant appeal under consideration, the learned Counsel for the Appellant complained on the alleged defects in the charge before the lower Court and he urged that the Appellant should be discharged and acquitted. Section 206 of the Criminal Procedure Code which relates to the effect of any defect in a charge provides thus;
“No error in stating either the offence or the particulars required to be stated in the charge and or omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such
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errors or omission and it has occasioned a failure of Justice.”
Also by Section 382 of the Criminal Procedure Code, the Court shall have regard to whether the objection could be and should have been raised at an earlier stage in the proceedings. In MAGAJI V. NIGERIAN ARMY (2008) LPELR – 1814 (SC), the Supreme Court held among others that:-
“Any objection to a charge for any formal defect on the face thereof or for any perceived irregularity relating to procedure, shall be taken immediately after the charge has been read over to the accused and not later. In the instant case, there was no evidence on the record that the Appellant or his Counsel ever raised any objection either before or after the charge was read to the Appellant and he pleaded to it as to the competence of the General Court Martial and the Jurisdiction in respect of the charge”
In the instant appeal when the Appellant was arraigned at the lower Court upon the charge, he was represented by Counsel by name B.A. Alih, Esq. who announced appearance and conducted the proceeding on his behalf (see page 22 of the record of appeal). In my humble view, the Appellant was not
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misled by the charge. If he was misled his Counsel should have said so at the onset, indicating this by way of objection to the charge but he did not do so. As a matter of fact as borne out of the record transmitted to this Court, there was no stage of the proceedings at the Court below (from arraignment to sentencing) did the Appellant or his counsel register an objection to the alleged defective charge. I am therefore of the opinion that the Appellant and his counsel in the trial Court had sufficient knowledge that the Appellant was standing trial for culpable homicide not punishable with death under Section 224 of the Penal Code despite the said enactment and the section contravened not expressly stated on the charge. I hereby discountenance the submissions of the Appellant’s counsel and the said issue is hereby resolved against the Appellant and in favour of the Respondent.
RESOLUTION OF ISSUE 2
The law is long settled that in a criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which
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presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO V. THE STATE (1989) 4 NWLR (Pt. 113) 57.
Culpable homicide not punishable with death is akin to the offence of manslaughter. In SHOSIMBO VS THE STATE (1974) All NLR 603, the Supreme Court stated that “for the offence of manslaughter it is not necessary to prove any intent to kill or do grievous bodily harm provided there is proof that the unlawful act of the accused caused some harm to the deceased which harm caused his death.” To sustain a charge of culpable homicide not punishable with death, it is sufficient if the Respondent proved that the said act of the Appellant was unlawful, unauthorized and inexcusable in law and/or that it was rash and reckless without due regard or consideration for its consequences and/or that it was negligent – STATE VS BELLO AYINDE (1976-77) NNLR 38, BABALOLA VS STATE (1978-79) NNLR 31, ADAMU VS STATE (2014) LPELR – CA/K/373/C/2013.
The law is long settled that the
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prosecution can prove its case against the accused person by all or any of the following means:
i. Evidence of any eye witness of the crime;
ii. Confession or admission when voluntarily made by the accused; and
iii. Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
In proving the guilt of the Appellant, the Respondent called two witnesses and four exhibits, 3 of which were admitted in evidence. Exhibit P1 were the pictures of the deceased which was tendered but marked “rejected”. Exhibit P2 is the confessional statement of the Appellant made at the State CIID, Kogi State. Exhibit P3 is the attestation form annexed to the statement credited to the Appellant, while the report of the post mortem examination was admitted in evidence as Exhibit P4. To decide whether the trial Court was right to have convicted the Appellant is an issue to be decided after revisiting the evidence led by the Respondent at the trial and also that of the Appellant who testified solely in his defence.
Save for the testimonies of the Respondent’s witnesses, the first
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thing that comes to play is the Appellant’s confessional statement tendered and marked as Exhibit P2. The statement can be found at pages 10 to 11 of the record of appeal. In the said statement, the Appellant confessed to have stabbed the deceased during a fight. It is rather mind disturbing that this evidence was allowed to sail freely through the coast of admissibility without the Appellant or his counsel registering an objection when the said document was tendered by the Respondent. The said statement was earlier endorsed by superior police officer in the presence of the appellant herein. (See Exhibit P3). In admitting Exhibit P2, the trial Court at page 27 of the record of appeal as follows:
“The statement of the defendant to which there is no objection is admitted as Exhibit P2.”
When a confessional statement is admitted without objection from the maker or his counsel, the law implies that the maker of the statement agrees with everything in the statement. It also means that the maker made the statement voluntary and it is the truth on his role in the crime. See SMART V. STATE (2016) LPELR – 40728 (SC).
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During the Appellant’s defence, he gave a different account of what transpired between himself and the deceased. In his examination-in-chief at pages 33 – 34 of the record of appeal, he testified that:
“…I went to the hospital where I met my younger brother, Sahaad. I asked him what was the matter. He did not answer me. I went inside where I met his mother. I heard a noise outside. Sahaad came inside and stabbed me with a knife on my forehead.
I began to struggle with him over the knife. In the process, Sahaad sustained an injury by the side of his ribs. My brother rushed me to the police station. When the policeman came to the house, Sahaad was not around. The police traced him to his father’s house. I went to a chemist shop for treatment. I was refused treatment. I went back home. Unknown to me, Sahaad was hiding in his room. When I tried to enter the room, Sahaad rushed at me and struck me a second time with a knife. I screamed and in an attempt to avoid his knife, my elbow hit him. He fell with the knife injuring his side…”
It is evident that the testimony of the Appellant during trial was different from the content of his
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confessional statement made to the police at the earliest opportunity. The learned counsel to the Appellant at paragraph 5.15 of the Appellant’s Brief of argument submitted that the Court below ought to have disregarded the extra judicial statement of the Appellant and his evidence because both are at variance and should have focused more on whether the prosecution had proved its case beyond reasonable doubt. The learned trial judge after taking the defence of the Appellant threaded with caution by treating the Appellant’s confessional statement as a retracted statement. The learned trial judge held at page 50 of the record of appeal as follows:
“It is my view and I so hold that though the defendant did not directly deny making Exhibit P.2 and did not object to its admissibility, by his viva-voce evidence before me, he had retracted the contents of Exhibit P.2. The law is now settled on what a trial Court should do in a criminal trial where the person accused of a crime retracts a confessional statement credited to him. The Court must ensure there is some evidence outside the confessional statement, no matter how small which show that
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the confession is probable.”
Adhering to the admonition of the Supreme Court on what is required of a trial Court when an accused person retracts from his confessional statement, the trial Court considered other evidence adduced by the prosecution to show that the confession was probable. The evidence of PW2, the wife of the deceased is succinct on the fact that the Appellant stabbed the deceased on the back. PW2 testified at page 29 of the record of appeal as follows:
“The defendant came to the compound with a motorcycle. While going to the mosque the defendant took a knife from his pocket and stabbed him on the back. He was rushed to the hospital where the medical officer confirmed him dead.”
The evidence of PW2 was not discredited under cross-examination and this evidence corroborates the Appellant’s confession in Exhibit P2 that he stabbed the deceased on the back. (See page 11 of the record of appeal). The content of the medical report is also instructive on the cause of the deceased’s death. It is contained therein that the deceased was stabbed “on the left mid chest posteriorly, traversing the pleurae
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and penetrating into the left lung tissue”.
From the Appellant’s confessional Statement, the evidence of the Respondent’s witnesses and the exhibits tendered, it has been duly established beyond reasonable doubt that the death of a human being occurred and that the death of the deceased was caused through the act of the Appellant.
As for the last ingredient i.e. that the Appellant knew that death was the likely consequence of his act or omission, the learned trial judge held at pages 53 – 54 of the record of appeal stated as follows:
“Now, will a reasonable man be surprised that the deceased died from the stabbing by the defendant in the course of their fight? My answer is in the negative. A stab wound to any part of the human body could result in death from bleeding. So, did the defendant know or had any reason to know that the death of the deceased was a likely consequence of his act of stabbing the deceased on the back with a knife? I have no hesitation in answering in the affirmative. Once the deceased was stabbed, he began to bleed and as Exhibit P.1 stated, the deceased died from “Haemopneumothorax
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with lung collapse and internal bleeding secondary to stab wound.” In my view, every sane and normal human being knows that stabbing another with an object such as a knife or broken bottle on the back is likely to cause death.”
I cannot but agree with the reasoning of the trial Court that the Appellant knew that death was the likely consequence of stabbing the deceased with a knife while engaged in a fight. I am therefore convinced that the Respondent discharged the standard of proof by establishing through credible and admissible evidence that the Appellant is guilty of the offence of culpable homicide not punishable with death contrary to Section 224 of the Penal Code. The law is trite that proof beyond reasonable doubt, does not mean proof beyond shadow of doubt, as stated by Denning J. in the case of MILLER V. MINISTER OF PENSIONS 1947 2 ALL E.R. page 372 at 373 when he said:-
“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice, if the evidence is so strong against a man as to leave only a
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remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice”.
On the whole, I hereby resolve the two issues distilled by learned counsel to the Appellant which were adopted by this Court in the resolution of this appeal against the Appellant and in favour of the Respondent. I hold that his appeal is bereft of merits and same is hereby dismissed. The decision of the trial Court per Honourable Justice A.N Awulu in Case No: AHC/5C/2008 delivered on the 17th day of June, 2019 wherein the Appellant was convicted and sentenced to 10 years imprisonment for culpable homicide not punishable with death contrary to Section 224 of the Penal Code is hereby affirmed.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother, ADAMU JAURO JCA, dismissing the appeal.
In his Brief, the Appellant made submissions that the learned trial Court was robbed of the jurisdiction to try the Appellant because of the defect on the face of the Charge for which the Appellant
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was tried and convicted. By virtue of Section 151 of the Criminal Procedure Act, 1945, a Charge is a crucial and integral part of the administration of criminal justice in Nigeria since it contains vital information about the offence for which an Accused Person is being tried. This information aids in the Prosecution and defence of the case. Therefore, any defect or error which could mislead the Accused Person and occasion a miscarriage of justice must be avoided. The Apex Court in OGBOMOR V. STATE (1985) LPELR – 2286 (SC) stated thus;
“The important thing about “the charge” in any criminal case is that it must tell the person accused enough, so that he may know the case alleged against him and prepare his defence for “the fact that a charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case” – Section 151(4) of the Criminal Procedure Act Cap. 43 of 1958. The charge must not therefore have defects or errors which could, mislead the accused. The emphasis is not on whether or not there were defects, errors or omissions in the
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charge, but on whether or not those defects, errors or omissions could and did in fact mislead the defence. Subject to the above, a defect error or omission which does not prejudice the defence is no ground for quashing the conviction on a charge for a known offence: see R. V. Ijoma & Ors (1962) All N.L.R. 402; Mgbemene v. I.G. of Police (1963) 1 All N.L.R. 321; Omisade & Ors v. R (1964) 1 All N.L.R. 233. “(Emphasis Supphed). Per OPUTA, J.S.C.
The emphasis from the above case is that the defect or error must have indeed misled an Accused Person, thereby placing the Accused at the disadvantage in the preparation of his defence. This is not the case in the instant Appeal as the Appellant did not state how he was misled or show that he suffered any miscarriage of justice as a result of the defect.
In the pursuit of justice, it is the duty of the Court to ensure that substantial justice is done because technical justice is dangerous and prevents the Court from dealing with the case on its merits which is against the interest of justice. The Courts bearing this in mind have shifted their attention from minor technicalities that do not affect
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the substance of the case to focus on doing justice to all parties. See EZE V. FRN (2017) LPELR – 4209 (SC).
It is a travesty of justice to allow this appeal on a mere technicality or procedural error that does not touch on the substance of the case. I call in aid the decision of the Apex Court in SALAWU V. STATE (2011) LPELR – 9351 (SC) where, His Lordship, TABAI J.S.C. (Emeritus) stated thus;
“This Court has emphasised again and again the dangers of technicalities to the cause of justice. In the case of SYLVESTER OGBOMOR V. THE STATE (1985) 1 N.S.C.C. 224 at 239, this Court per ANJAGOLU JSC re-emphasised the ultimate aims of the law at doing substantial justice as opposed to technical justice when he said: – “The dictates of justice which command that the guilty be punished and the innocent set free after a fair hearing under procedural regularity, do not permit the acquittal of an otherwise guilty person upon fanciful errors contained in the charge. The Law always aims at substantial justice.” (Emphasis Supplied).
With this addition, I adopt as mine the reasoning and conclusions made in the lead Judgment. I too hereby dismiss
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this appeal as lacking in merit.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
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Appearances:
Joe Abah, Esq. For Appellant(s)
Mr. Ibrahim Sanni Mohammed SAN Hon. Attorney General and Commissioner for Justice Kogi State, with him, Habib Abdullahi Atule E. Stanley,Esq. ADPP and A. D Bello Esq. Legal Officer from Ministry of Justice Kogi State For Respondent(s)
