MOHAMMED v. STATE (2022)

MOHAMMED v. STATE

(2022)LCN/17132(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, March 10, 2022

CA/S/126C/2021

Before Our Lordships:

Frederick Oziakpono Oho Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Between

HAUWA’U A. MOHAMMED APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE STANDARD OF PROOF IN CRIMINAL CASES

In resolving issues (1) and (3) together, it is instructive that both parties are agreed that in every criminal trial such as this, the standard of proof is beyond reasonable doubt and the burden of proof is on the prosecution. They are also agreed as to the three ingredients which the prosecution needs to prove to sustain a charge of culpable homicide contrary to Section 221 of the Penal Code under which the appellant was charged, tried and convicted. Their point of disagreement comes in whether or not the prosecution has proved the three ingredients beyond reasonable doubt in the instant case. While the prosecution/respondent vehemently insists that it has established all three ingredients beyond reasonable doubt, the objection of the appellant echoes very loudly that the only ingredient the prosecution established is the first one, the death of a human being. Their serious contention is that there is neither a causal link between the act of the appellant and the death of the deceased nor was it proved that the act of the appellant that caused the death was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act. 

It is trite that in a murder charge such as this, the prosecution is required to prove beyond reasonable doubt not only that the act of the accused person could have caused the death of the deceased but that it actually did. If there is the possibility that the deceased died from other causes other than the act of the accused person, the prosecution has not established the case against the accused person: UGURU V STATE (2002) 9 NWLR, PT 771, 90 and AUDU V STATE (2003) 7 NWLR, PT 820, 516.
In other words, a causal link between the death and the act of the accused person must be proved beyond reasonable doubt. The first and perhaps logical step in the process of such proof is to prove the cause of death. PER MAHMOUD, J.C.A.

WHETHER OR NOT CORROBORATIVE EVIDENCE MUST BE DIRECT EVIDENCE THAT THE ACCUSED COMMITED THE CRIME

The grouse of the appellant is that PW5’s testimony was not corroborated since the other witnesses were not eye witnesses. What then in law constitutes corroboration? Corroboration is a confirmation of a witness’s evidence by independent testimony which shows or tends to show not merely that a crime has been committed but that it was committed by the accused. Corroborative evidence need not be direct evidence that the accused committed the crime, but it is sufficient if it is merely circumstantial evidence of his connection to the crime. There is a plethora of authorities on this principle but I will mention only a few: OMISADE & ORS V QUEEN (1964) LPELR – 251119 (SC); OKABICHI & ORS V STATE (1975) LPELR – 2406 (SC); DAGAYYA V STATE (SUPRA), ADONIKE V STATE (2015) 7 NWLR, PT 1458, 237 and IKUMONIHAN V STATE (2018) LPELR – 44 362 (SC). It follows from these authorities that the evidence of PW4, the husband of both parties (deceased and appellant) which though circumstantial shows the appellant’s connection to the crime. It is sufficient corroboration. I agree largely with the respondent’s counsel that Exhibits B, B1, C & C1 also constitute corroborative evidence. I therefore hold that in the face of this corroborative evidence, the trial Judge was right to have acted on the testimony of PW5 to convict the appellant. PER MAHMOUD, J.C.A.

THE DEFENCES OF THE OFFENCE OF PROVOCATION

Was the trial Court right in holding that the defences of provocation and self defence were not available to the appellant? Provocation is a recognized defence which if satisfactorily established has the effect of whittling down the punishment stipulated for the offence. For the defence of provocation to avail the appellant these three elements or ingredients must co-exist:
1. The act of provocation done in the heat of passion.
2. The loss of self-control, both actual and reasonable and done before there was time to cool down and
3. The retaliation is proportionate to the provocation.

See ULUEBEKA V THE STATE (2000) 4 SC PT. 1, 203; AMALA V STATE (2004) 12 NWLR, PT 888, 520 and EZE V STATE (2018) LPELR – 44 967(SC). PER MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The accused/appellant was charged and tried for the offence of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code at the Kebbi State High Court sitting at Birnin Kebbi.

The case of the prosecution was that the accused and the deceased who were co-wives were alleged to have engaged in a fight over fetching of water on the 27th March, 2020. Their children joined in the fight. In the course of the fight the accused/appellant beat the deceased with a stick severally and this resulted in her death. In proof of its case, the prosecution called five witnesses and tendered four exhibits marked as Exhibits A, B, B1, C, C1 and D. These are the sticks allegedly used to murder the deceased, the Hausa and English translations of the statement of the accused recorded at the State Criminal Investigation Department (SCID), Maiyama Police Division, Kebbi State and the medical report respectively.

In her own defence, the accused/appellant testified for herself as DW1, called no other witness and tendered no exhibit.

​At the conclusion of hearing, written addresses were ordered, exchanged and adopted. The trial Chief Judge in his judgment delivered on the 16th day of October, 2021 convicted the appellant and sentenced her to death.

It is against this judgment that the appellant being dissatisfied with the conviction and sentence appealed to this Court on the following four grounds with their particulars thus:
1. The trial Court erred in law and facts when it held in the circumstances of the case that the Respondent had established the offence of Culpable Homicide punishable with death against the Appellant beyond reasonable doubt; and thus, caused grave injustice to the Appellant.
PARTICULARS OF ERROR
A. The Respondent had by a one count charge dated the 2nd of December, 2020 and filled on the 3rd of December, 2020, arraigned the Appellant alleging that the Appellant had on the 27th of March, 2020, killed one Aishatu. A. Muhammad; and thereby committed the offence of Culpable Homicide punishable with death under Section 221(b) of the Penal Code.
B. The Appellant pleaded not guilty to the offence and in a bid to establish the offence against the Appellant, the Respondent called Five (5) Witnesses and tender Six (6) Exhibits; in defence of the allegation, the Appellant also testified for herself.
C. In law, it is the responsibility of the Respondent to establish all the constituents of the offence of Culpable Homicide under Section 221(b) of the Penal Code, namely; (a) That the deceased died (b) That his/her death was caused by the accused and (c) That the accused knew that the death would be the probable consequence of his act or acts, against the Appellant beyond reasonable doubt; and where any doubt exists, same must be resolved against the Respondent and in favour of the Appellant.
D. It is blazingly doubtful from the pieces of evidence adduced before the trial Court whether the Appellant intentionally caused the death of the deceased and/or knew that death would be the probable consequence of her act or acts. The Lower Court was therefore wrong in holding that the Respondent had established the offence of Culpable Homicide.
2. The lower Court misdirected itself in law and facts when in convicting the Appellant for the offence of Culpable Homicide punishable with death, held that the evidence adduced by the Respondent and the Appellant corroborated the unsworn testimony of Aisha Mohammad; thereby occasioning a miscarriage of justice to the Appellant in the determination of the case.
PARTICULARS OF ERROR
A. In a bid to establish the offence against the Appellant, the Respondent called Five (5) Witnesses and tendered Six (6) Exhibits; save the unsworn evidence of Aisha Mohmmad, the testimonies of the rest witnesses are characterized by hearsay and therefore, inadmissible in law.
B. The hearsay narrations of PW1, PW2, PW3 and PW4 are inadmissible and cannot in law corroborate the unsworn evidence of Aisha Muhammad under Sections 37, 38 and 209 (1) and (3) of the Evidence Act, 2011.
C. In the aftermath, the trial Court misapplied the law to the facts of the case when it held that the unsworn evidence of Aisha Muhammad, a child was corroborated in the circumstance of the case.
3. The lower Court erred in law and fact when it held that the defences of provocation and self-defence do not avail the Appellant in the circumstances of the case and thereby occasioned a grave miscarriage of justice to the Appellant.
PARTICULARS OF ERROR
1. In both her extra judicial statement and oral testimony on oath before the trial Court, the Appellant raised the defences of provocation and self-defence on the grounds that the deceased had consistently provoked and attacked her.
2. The defenses raised by the Appellant were neither challenged nor controverted by the Respondent under cross-examination; the law is trite that unchallenged evidence is admissible as the truth of the fact is an issue.
3. The defenses of provocation and self-defense when raised and sustained; mitigates the sentence to be passed on an accused or exonerate an accused person completely of criminal liability respectively; the trial Court therefore erred in law when it sentenced the Appellant to death in the face of the unchallenged defenses raised.
4. The judgment of the lower Court delivered on the 16th of September, 2021 is altogether perverse, unwarranted and unreasonable having regard to the evidence adduced before the trial Court.

To prosecute this appeal, the appellant’s brief which was settled by Mr. Lagalo Dan Lagalo was filed on the 10th January, 2022. In it, the appellant distilled three issues for the resolution of the Court thus:
1. “Whether having regards to the fact and circumstances of the case, the trial Court was not wrong when in relying on the testimony of PW5 a minor to convict the Appellant, held that the said testimony was corroborated? (Distilled from Ground 2)
2. Whether in view of the fact and circumstances of the case, the defences of provocation and self-defence was (Sic) available to the Appellant? (Distilled from Gound 3)
3. Whether having regards to the totality of the evidence adduced on record, the offence of Culpable Homicide punishable with death under Section 221(b) of the Penal Code was established against the Appellant beyond reasonable doubt to warrant her conviction and sentence by the trial Court? (Distilled from Grounds 1 and 4).”

In arguing the appeal, Mr. Lagalo Dan Lagalo, of counsel for the Appellant adopted the brief as their legal arguments in support of the appeal. On issue (1) counsel submitted that the evidence of PW5, a minor which requires corroboration in law was not so corroborated by the testimonies of PW1 PW2, PW3 and PW4 who were not eye witnesses to the fight between the appellant and the deceased or the alleged beating with a stick to death of the deceased by the appellant.

On issue (2) Mr Lagalo predicated his arguments on the fact that the defence of provocation was available to the appellant from the facts and circumstances of this case. Counsel contended that the uncontroverted evidence of the appellant was that the deceased had repeatedly waylaid her on her way from the stream and pushed her water down even up to the day of the incident. Counsel also submitted that since it was a case of two fighting, the appellant merely acted in self defence which unfortunately resulted in the death of the deceased. Counsel conceded that the trial Court rightly considered the defences as raised by the appellant but erred in holding that the defences were not available to the appellant.

​On the third and final issue, counsel submitted that the prosecution woefully failed to prove the second and third ingredients of the offence of culpable homicide. These according to counsel are that such death was caused by the accused and that the act of the accused that caused the death was done with the intention of causing death or that the accused knew that death will be the probable consequence of his act. That the only eye witness evidence in support of the prosecution’s case is the uncorroborated evidence of PW5, a child. Counsel further contended that Exhibit D, the medical report is not only speculative but failed to state the cause of death.

Counsel urged the Court to allow the appeal, quash and set aside the conviction and sentence of the lower Court and in its place, discharge and acquit the appellant.

The Respondent’s brief was settled by Aishatu Abbas, DPP, Kebbi State Ministry of Justice on the 20th January, 2022. In it, the Respondent adopted the same issues formulated by the appellant for determination by the Court.

In arguing the appeal, Mr Lawal Hudu Garba, DDPP, Ministry of Justice, Kebbi State of counsel for the Respondent adopted the said brief as their legal arguments in opposition to the appeal. On issue (1) counsel submitted that the testimony of PW5, a seven-year-old and an eye witness to the crime was properly received in compliance with Section 209 of the Evidence Act, 2011 and the testimony of PW5 was adequately corroborated by the confessional statements of the appellant, Exhibits B, B1 C and C1. Counsel referred to the decision of this Court in UMAR USMAN V STATE (2015) LPELR – 40758 (CA). Counsel in reacting to the submission of the appellant’s counsel contended that failure of the prosecution to call one Hajo, the younger sister of PW5 is not fatal to its case as the prosecution is not bound to call any number of witnesses to prove its case.

On issue (2), counsel referred to a number of authorities to submit that the conditions which the accused/appellant needs to prove for the defence of provocation to avail him. Counsel submitted that indeed the appellant in cross examination contradicted herself as to the deceased’s alleged and repeated acts of provocation which she admitted did not occur on the day of the incident. Counsel urged the Court to uphold the findings of the trial Court that the defences of provocation and self defence were not available to the appellant in the circumstances of this case.

​On issue (3), counsel conceded with the appellant’s counsel that the burden and standard of proof are both on the prosecution and is beyond reasonable doubt. Counsel however submitted that on the authority of AKPAN V THE STATE (2016) 8 SCM 1 AT 7, PARAS F – G, the confessional statement is one of the acceptable ways of proving an offence against an accused beyond reasonable doubt. Counsel contended that the evidence of the prosecution witnesses together with the exhibits tendered proved the offence of Culpable Homicide punishable with death against the appellant beyond reasonable doubt.

On the speculative nature of the medical report, Exhibit B, counsel submitted that the nature of the injuries which caused the death of the deceased as described in Exhibit B was confirmed by PW4, the husband of both the deceased and the appellant. Counsel further referred to a plethora of authorities to submit that the trite position of the law is that where a person dies in circumstances which leave no doubt as to the cause or manner of death, medical evidence can be dispensed with. Counsel urged the Court to so hold and to dismiss this appeal for lacking in merit and affirm the conviction and sentence of the trial Court made on the 16th September, 2021.

​This should necessitate me to first resolve the date the judgment of the lower Court was delivered in the instant case. Both addresses of counsel confidently referred to the 16th September, 2021 as the date judgment in this case was delivered. This was also the date his Lordship, the Hon. C. J. signed the judgment at page 84 of the records. This should ordinarily resolve any issue in respect of the date the judgment of Court was delivered. Curiously, however at page 70 of the record, the last item on the heading showing the date of delivery was this:
“TODAY: 16th of October, 2021.”

​First of all, I am unable to understand how the appellant’s counsel who complied and transmitted the records could have missed this slip. Counsel ought to have checked every page of this short record of only 89 pages with a fine tooth comb. However, having come to my notice it is obligatory to resolve it in order to ensure that the validity of the judgment is not compromised as a result of this slip. I went back to the 2021 calendar and discovered that 16th October, 2021 was a Saturday while 16th September, 2021 was a Thursday. Conscious that this is not an election petition matter in which the Court can sit on Saturdays, I am emboldened to hold that the appearance of “October” instead of “September” on the heading shows that this is a mere typographical slip, which slipped the eye lenses of both counsel. I am fortified in this position by page 84 of the record where the trial Chief Judge signed and dated the judgment, the 16th of September 2021. I hold therefore that October as appeared on the heading of the judgment at page 70 is a typographical slip and the judgment was delivered on the 16th September, 2021.

I have considered the three issues as raised and adopted by the parties. It is my view that issues 1 and 3 both speak to the same issue of evidence and should have and will be considered together. In view of the submissions of the appellant’s counsel I will reframe issue (2) thus:
“whether from the evidence on record, the trial Judge was right to hold that the defences of provocation and self defence were not available to the appellant?”

In resolving issues (1) and (3) together, it is instructive that both parties are agreed that in every criminal trial such as this, the standard of proof is beyond reasonable doubt and the burden of proof is on the prosecution. They are also agreed as to the three ingredients which the prosecution needs to prove to sustain a charge of culpable homicide contrary to Section 221 of the Penal Code under which the appellant was charged, tried and convicted. Their point of disagreement comes in whether or not the prosecution has proved the three ingredients beyond reasonable doubt in the instant case. While the prosecution/respondent vehemently insists that it has established all three ingredients beyond reasonable doubt, the objection of the appellant echoes very loudly that the only ingredient the prosecution established is the first one, the death of a human being. Their serious contention is that there is neither a causal link between the act of the appellant and the death of the deceased nor was it proved that the act of the appellant that caused the death was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act. 

It is trite that in a murder charge such as this, the prosecution is required to prove beyond reasonable doubt not only that the act of the accused person could have caused the death of the deceased but that it actually did. If there is the possibility that the deceased died from other causes other than the act of the accused person, the prosecution has not established the case against the accused person: UGURU V STATE (2002) 9 NWLR, PT 771, 90 and AUDU V STATE (2003) 7 NWLR, PT 820, 516.
In other words, a causal link between the death and the act of the accused person must be proved beyond reasonable doubt. The first and perhaps logical step in the process of such proof is to prove the cause of death. 

What then is the cause of death and was it proved beyond reasonable doubt in the instant case? In answering the latter part of the question in the negative, the appellant’s counsel alluded to Exhibit B which he termed speculative and in no way proved the cause of death. I have read Exhibit B. Clearly this is not a post mortem result of the cause of death. At best it is a certificate of death, merely confirming that the deceased whose corpse was taken to the hospital was indeed dead and no more. There is no evidence of any medical examination done on the corpse to ascertain cause of death. This is however not in my view fatal. The Apex Court in the case of UGURU V STATE (SUPRA), held that cause of death can be inferred where the person injured or attacked died immediately. The evidence of PW5 which was corroborated by the confessional statements, Exhibits B and B1 and C and C1 confirm that the deceased died in the course of the beating by the appellant. From a consideration of the evidence especially the confessional statements of the appellant in Exhibits B1 and C1 she unequivocally stated referring to the deceased thus: “… I picked a stick and started beating her till she died.” The evidence of PW4, the husband of both the deceased and the appellant confirms the nature of injuries the appellant inflicted on the deceased that caused her death. He testified at page 34 of the record thus:
“On 27/3/2020 I was at Andarai rearing and when I returned home Hauwa, the accused person was about to go out of the house and I returned her into the house. Then I went into the room of Aishatu and saw her children crying and I asked them the whereabouts of their mother and they showed me where she was covered with wrapper. I looked at her and found out that she died. I observed that she had serious injury on her hand and had fracture on her leg with a wound and had a serious wound on her head…”
So the cause of death was not only ascertained but it was directly linked to the act of the appellant, the beating. See OFORLETE V STATE (2000) 12 NWLR, PT 631, 415 and OCHE V STATE (2007) 5 NWLR, PT 1027, 214. Besides the Apex Court settled this issue in the case of AFOLABI V STATE (2016) 11 NWLR, PT 1524, 497 where it held that where the person injured or attacked died immediately, cause of death can be inferred. The evidence on record in the instant case is that the deceased died in the course of the attack, i.e. immediately. This settles the second ingredient of the offence.

The appellant’s counsel has also contended that the prosecution did not prove beyond reasonable doubt that the accused intended to kill the deceased. A person is presumed to intend the natural consequences of his act. Accordingly, where by an unlawful act, he causes another person grievous bodily harm leading to the death of that person, he is presumed to have intended to kill that person and he would be guilty of murder irrespective of his intention: AUDU V STATE (SUPRA).

In the instant case, the chain of causation was not broken. The injury which caused the death of the deceased was the direct cause of death. There is no room for more than one possible cause of death in this case so as to give the benefit of doubt to the appellant. The Apex Court affirmed this principle of causation in the case of AIGUOREGHIAN & ANOR V THE STATE (2004) 3 NWLR, PT 860, 367 when it held that, ”the important consideration for determining responsibility is whether death of the deceased was caused by injuries he sustained through the act of the accused and NOT WHETHER FROM THE MEDICAL POINT OF VIEW DEATH WAS CAUSED BY SUCH INJURIES.” (Emphasis provided).
This principle is based on the age old maxim that the accused must take his victim as he finds him. 

This case of AIGUOREGHIAN & ANOR V STATE also reinforces the position of law that where death is caused by infliction of injury by the appellant which was proximate to the death of the victim, medical evidence can be dispensed with as rightfully submitted by the Respondent’s counsel.

​This takes us to the evidence of PW5. There is no contest that PW5 is a minor and while her unsworn evidence is admissible, by Section 209 (3) of the Evidence Act, 2011, it has to be corroborated. This provision which is statutory is mandatory: OLALEYE V THE STATE (1980) LPELR – 2563 (SC). DAGAYYA V STATE (2015) LPELR – 24793 (CA). 

The grouse of the appellant is that PW5’s testimony was not corroborated since the other witnesses were not eye witnesses. What then in law constitutes corroboration? Corroboration is a confirmation of a witness’s evidence by independent testimony which shows or tends to show not merely that a crime has been committed but that it was committed by the accused. Corroborative evidence need not be direct evidence that the accused committed the crime, but it is sufficient if it is merely circumstantial evidence of his connection to the crime. There is a plethora of authorities on this principle but I will mention only a few: OMISADE & ORS V QUEEN (1964) LPELR – 251119 (SC); OKABICHI & ORS V STATE (1975) LPELR – 2406 (SC); DAGAYYA V STATE (SUPRA), ADONIKE V STATE (2015) 7 NWLR, PT 1458, 237 and IKUMONIHAN V STATE (2018) LPELR – 44 362 (SC). It follows from these authorities that the evidence of PW4, the husband of both parties (deceased and appellant) which though circumstantial shows the appellant’s connection to the crime. It is sufficient corroboration. I agree largely with the respondent’s counsel that Exhibits B, B1, C & C1 also constitute corroborative evidence. I therefore hold that in the face of this corroborative evidence, the trial Judge was right to have acted on the testimony of PW5 to convict the appellant.

Was the trial Court right in holding that the defences of provocation and self defence were not available to the appellant? Provocation is a recognized defence which if satisfactorily established has the effect of whittling down the punishment stipulated for the offence. For the defence of provocation to avail the appellant these three elements or ingredients must co-exist:
1. The act of provocation done in the heat of passion.
2. The loss of self-control, both actual and reasonable and done before there was time to cool down and
3. The retaliation is proportionate to the provocation.

See ULUEBEKA V THE STATE (2000) 4 SC PT. 1, 203; AMALA V STATE (2004) 12 NWLR, PT 888, 520 and EZE V STATE (2018) LPELR – 44 967(SC).

The appellant’s counsel did not show these three elements as existing in the instant case. Self defence on the other hand as held by the Apex Court in the case of NWUZOKE V STATE (1988) 1 NWLR, PT 72, 529 is available to an accused person only when he proves that he was at the time of the killing in reasonable apprehension of death or grievous harm and that it was necessary at the time to use force which resulted in the death of the deceased. In other words, there must be reasonable grounds for the accused to believe that the only way he could escape death or grievous bodily harm to himself was to kill the assailant. See also ODUNLAMI V NIGERIA NAVY (2013) 12 NWLR, PT 1367, 20.

The appellant’s counsel has in my view failed to show how any of the conditions for provocation or self defence exist to avail the appellant. He is therefore misconceived in the circumstances to allege that the trial Judge erred in holding that the defences did not avail the appellant. His Lordship rightly held that they did not avail the appellant.

Consequently, and having resolved both reframed issues against the appellant, this appeal fails for lacking in merit. It is accordingly dismissed. The judgment of Justice M. S. Ambursa, C. J. delivered on the 16th September, 2021 convicting and sentencing the appellant for Culpable Homicide contrary to Section 221 (b) of the Penal Code is hereby affirmed.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, PATRICIA AJUMA MAHMOUD, JCA and I am in agreement with the reasoning and conclusions in disallowing the Appeal as completely lacking in merit. I subscribe to the consequential orders made thereto.

MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother PATRICIA AJUMA MAHMOUD JCA. I agree with the reasons therein for the conclusion that the appeal fails for lacking in merit and should be dismissed.
I hereby dismiss the appeal and adopt the consequential orders made in the lead judgment.

Appearances:

LAGALO DAN LAGALO For Appellant(s)

LAWAL HUDU GARBA, DDPP, with him, MR. SHAMSUDEEN JAAFAR, ADPP MININSTR OF JUSTICE, Kebbi State For Respondent(s)