MU’AMMAR TUKUR v. THE STATE
(2019)LCN/12711(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/K/223/C/2017
RATIO
CRIMINAL LAW: INGREDIENTS OF HOMICIDE
“She submitted that the need to amend the charge did not arise and that the Appellant failed to prove to the Court that he was misled. The ingredients of the offence of culpable homicide punishable with death are:
(a) That the death of a human being was caused.
(b) That the accused was the cause of the deceased person’s death; and
(c) That the act of the accused leading to the death of the deceased person was done intentionally or with knowledge that death or grievous harm was the probable and not the likely consequence of the act.” PER JAMES GAMBO ABUNDAGA, J.C.A.
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
MU’AMMAR TUKUR Appellant(s)
AND
THE STATE Respondent(s)
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Katsina State High Court holden at Funtua delivered by Hon. Justice A. A. Baraka, on 29th December 2016 in Suit No. KTH/FT/12C/13, wherein the Appellant was charged with the offence of culpable homicide punishable with death. He was thus charged:
That you, Mu’amar Tukur of No.1, Idris Road, Bakori, Bakori Local Government Area of Katsina, on or about the 29th day of April, 2008 at Madawaki Quarters, Bakori, did commit culpable homicide punishable with death in that you caused the death of one Shafir Muktar by stabbing him with a knife on his chest and neck with the intention of causing his death and thereby committed an offence punishable under Section 221 (a) of the Penal Code.
The Appellant pleaded not guilty, whereof the prosecution set out to prove its case by calling seven (7) witnesses: it also tendered six Exhibits. In defence of the charge, the Appellant testified as DW3 and called two witnesses who testified as DW1 and DW2. Thereafter counsel to both the prosecution and defence submitted written addresses which were duly adopted and the Court adjourned for judgment. In its judgment the Court (hereinafter referred to as ‘the lower Court’) found the Appellant guilty and convicted him and sentenced him to death by hanging.
Not satisfied with the judgment, the Appellant filed a notice of appeal on 27th January, 2017 containing seven (7) grounds. The grounds of appeal short of their particulars are hereunder reproduced:
GROUND ONE
The trial Court committed serious error of law when it convicted and sentenced the Appellant to death for the offence of Culpable Homicide punishable with death under Section 221(a) of the Penal Code on the evidence of the prosecution witnesses which are clearly at variance with the lone Charge upon which the Appellant was tried.
GROUND TWO
The learned trial Judge erred in law when he solely relied on the evidence of the PW1-PW5 vis–vis Exhibits 3 and 4 to draw inference of the cause of death of the deceased
GROUND THREE
The learned trial Judge erred in law when he allowed the tendering of the medical evidence as well as the two photographs through the PW6 and admitted same in evidence without any proper foundation contrary to the provisions of Section 83 of the Evidence Act.
GROUND FOUR
The trial Court committed serious error of law when it admitted in evidence, the two photographs as Exhibits 1 and 2 which are to all intents and purposes, computer-generated-evidence without compliance with the provisions of Section 84 of the Evidence Act, 2011 and thereby plunging itself to abyss of error and same has occasioned a serious miscarriage of justice on the Appellant.
GROUND FIVE
The learned trial Judge erred in law when he held that the prosecution has succeeded in establishing beyond all reasonable doubts, a charge of culpable homicide punishable with death against the Appellant thereby occasioning a serious miscarriage of justice on the Appellant.
GROUND SIX
The trial Court erred in law when it held that the prosecution has proven beyond reasonable, that the Appellant had the intention to cause the death of the deceased or that the Appellant knew that his act will result in the death of the deceased without ascertaining the probable intention of the Appellant and thereby arriving at a wrong conclusion, thus occasioning a substantial miscarriage of justices. (sic)
GROUND SEVEN
The learned trial Judge erred in law when his lordship tried, convicted and sentenced the Accused/Appellant to death on the alleged offence of culpable homicide punishable with death under Section 221(a) of the Penal Code on a charge that did not disclose the material time of the commission of the alleged offence by the Accused/Appellant and thereby occasioned serious miscarriage of justice on the Appellant.
Upon the compilation and transmission of the record of appeal briefs of argument were filed by counsel for the defence and the prosecution.
The Appellant’s brief of argument, settled by Hassan M. Liman, SAN, dated 12th December 2017 was filed on 13th December 2017 pursuant to leave of Court granted on 6/12/17. Thereafter upon the service on him of the Respondent?s brief of argument, the learned Silk filed a reply brief of argument on 27th November, 2018.
The Respondent’s brief of argument settled by S. B. Umar (Mrs) was filed on 31st May, 2018, and deemed properly filed and served on 5th June, 2018.
The briefs of argument were adopted on 28th November, 2018. In the Appellant?s brief of argument, five issues were formulated for consideration and determination. Learned counsel proffered arguments on them. The issues are:
ISSUE ONE
Whether the learned trial Judge was right when he admitted in evidence and relied on Exhibits 1, 2, 3 and 4 to convict and sentence the Appellant to death when same were not tendered by their makers in compliance with Section 83 and when Exhibits 1 and 2 also did not comply with the provisions of Section 84 of the Evidence Act, 2011.
ISSUE TWO
Whether the learned trial Judge was right to have convicted and sentenced the Appellant to death on the contradictory evidence of the prosecution?s witnesses as to the nature of the weapon used in the commission of the alleged crime and on the evidence at variance with the sole charge upon which the Appellant was tried. (formulated from ground one).
ISSUE THREE
Whether the learned trial Judge was right when he held that the prosecution has proved the offence of culpable homicide under Section 221(a) of the Penal Code beyond all reasonable doubts; when there is no credible evidence to link the Appellant to the cause of death and in view of the available evidence on the nature of the weapon allegedly used to cause death. (from grounds five & six).
ISSUE FOUR
Whether the learned trial Judge was right to have convicted and sentenced the Appellant to death relying on the evidence led by the prosecution to draw the inference of the cause of death of the deceased without considering the circumstances of the entire events leading to the death of the deceased. (from ground two).
ISSUE FIVE
Whether from the facts and circumstances of this case, the trial Court was right not to have taken into consideration, the issue of the material time of the commission of the alleged offence. (from ground seven).
The Respondent’s counsel adopted the five issues formulated by the Appellant. However, she proffered parallel arguments to the arguments of the learned Silk.
The arguments of both counsel will be considered in the determination of this appeal. On a calm consideration of the totality of the evidence adduced in this trial and the submissions of counsel on the issues formulated as contained in their briefs of argument, I am of the respectful view that the germane issues for the determination of this appeal can be compressed into two as follows:-
(1) Whether the lower Court did not err in admitting Exhibits 1, 2, 3 and 4 in evidence even when they were not tendered by the makers.
(2) Whether on the totality of the evidence before the Court the charge against the Appellant was proved beyond reasonable doubt to warrant the conviction and sentence of the Appellant.
RESOLUTION OF THE ISSUES
ISSUE ONE
Whether the lower the lower Court did not err in admitting Exhibits 1, 2, 3 and 4 even when they were not tendered by the makers.
This issue was argued in the Appellant’s issue one, adopted by the Respondent. The learned Silk for the Appellant went into the record of appeal to point to the fact that the Exhibits were not tendered by the makers. He therefore submitted that the lower Court erred in law when it admitted them in evidence in utter disregard to the provisions of Section 83(1) and (2) of the Evidence Act, 2011. He submitted that it is long settled that documentary evidence to have probative value must be tendered by the maker. Counsel referred us to Opolo v State (1977) 11 SC at page 6; Okpara V FRN (1977) 4 SC at page 53; Sunday Onunoju V State (1976) 5 SC at page 1; and Belgore V Ahmed (2013) 8 NWLR (Pt.1355) 60 at 100. He submitted that the purport and rationale behind the need for compliance with the provisions of Section 91(1)(a) of Evidence Act, 2004 (repealed), now Section 83(1)(a) of Evidence Act, 2011 was explained in the case of Omega Bank (Nig) Plc V O.B.C. Ltd (2005) ALL FWLR (pt.249) 1964 at P.1994 Paras D-G Per Niki Tobi, JSC (of blessed memory).
On these authorities, the learned Silk urged us to hold that Exhibits 1, 2, 3 and 4 are hearsay and to expunge them from the record of the Court. He contended that this Court has the jurisdiction to do so, and referred us toOnochie V Odogwu (2006)6 NWLR (Pt.975) 65 at 86 Paras A-H, P.90, Para B. It was further contended by Dr. H. M. Liman, SAN for the Appellant that apart from the fact that PW6 identified and tendered the medical reports in evidence the prosecution did not lead evidence on the purports of the documents as to the cause of death. That this was a clear duty of the prosecution to do but they failed to do so. He further contended that it is not the duty of the Court to embark on inspection or inquisitorial examination of documents outside the Court room when same have not been orally demonstrated or argued before the Court. He cited a plethora of cases including the case of Ivienagbor V Bazuaye (1999) 9 NWLR (Pt.650) 552 at 561, Paras E-D. Other cases cited on the need to have documentary evidence tendered by their makers are NIMASA V Hensmor (Nig) Ltd (2015)5 NWLR (Pt.1452) 278 at 312-313, Paras A-B.
On Exhibits 1 and 2, counsel submitted that photographs are computer-generated evidence and therefore to be admissible there must be strict compliance with Section 84(1), (2) and (4) of the Evidence Act. In support, counsel cited Kubor V Dickson (2013) 4 NWLR (Pt.1345) 534, 5577-578; Omisore V Aregbesola (2015) 15 NWLR (Pt.1482) 205 at 295 Paras D-G; Dickson V Sylva (2017) 8 NWLR (Pt.1567) SC.
S. B. Umar (Mrs), counsel to the Respondent did not accept the submission of Dr. H. M. Liman, SAN for the appellant that Exhibits 1, 2, 3 and 4 are inadmissible. She submitted that their admission in evidence did not in any way contravene the Evidence Act. She submitted that PW6 on page 64 of the record laid foundation by telling the Court that the photographer was nowhere to be found. She relied on Section 83(2) of the Evidence Act. She submitted that Opolo V State; Okpera V State, and Sunday Onunoju V State cited by Dr Liman is no longer the current position of the law on admissibility of documentary evidence under the Evidence Act, 2011. She contended that these cases were decided before the Evidence Act, 2011.
Similarly, Mrs Umar submitted that Exhibits 3 and 4 did not contravene the law, and contended that Section 55(3) of the Evidence Act and Section 249(3) of the CPC are supportive of the admission of Exhibits 3 and 4 in evidence. She also cited Achuku V State (2015)6 NWLR (Pt.1456)425 at 438. She pointed out that the Appellant?s counsel was asked whether he had any objection to which he said he had none before the documents were admitted in evidence. That when no objection is raised by the opposing party before a document is admitted in evidence, the opposing party cannot afterwards be heard to complain about its admission. Counsel referred to Da?u V State (2016) NWLR (Pt.1510) 83 at 90; Adegbite V State (2018) WRN 1-189 at 57 Lines 28-30.
In his reply address, Dr Liman insisted that the said Exhibits 1, 2, 3 and 4 were wrongly admitted in evidence and made reference to Blessing V FRN (2015) 13 NWLR (Pt.1475) 1 at 36-38, Paras C-G, where, as submitted by counsel Section 53 of the Evidence Act 2011 was fully considered. He submitted that the cases cited by Mrs Umar are not applicable.
He further submitted that there are two categories of evidence that are inadmissible; the first were those which are inadmissible per se, and that objection to this class can be raised at any stage of the proceeding, and the second category, are those that once admitted without objection, no objection can again be raised thereafter. He referred to Abowaba V Adesina (1946-49) 12 WACA 18 at 20; Okulade V Alade (1975) 1 A.N.L.R. (Pt.1) 67 at 73-74. That Exhibits 1-4 belong to the category of which objection can be raised at any stage, even on appeal.
It is not disputed that Exhibits 1, 2, 3 and 4 were tendered by persons who are not the makers. Exhibits 1 and 2 are photographs of the deceased when he was lying on the ground, while Exhibits 3 and 4 are post mortem examination report and the Doctor?s medical report respectively. Exhibits 1 and 2 are of the same class, while Exhibits 3 and 4 are together of a different class. Each of the two classes deserves separate considerations and will be dealt with accordingly.
The argument of the learned Silk that Exhibits 1 and 2 are not admissible is anchored on or stemmed from the provision of Section 83(1) of the Evidence Act which provides in part:
‘In any proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall on production of the original document shall be admissible as evidence of the fact if the following conditions are satisfied.’
S.83(1)(a) of the Evidence Act prescribes conditions that must be fulfilled before a statement in a document can be tendered and received in evidence. However, where such a statement is sought to be tendered and received in evidence through a person who is not the maker, the conditions spelt out in the proviso to Section 83(1) must be satisfied. The proviso is thus:
Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.
The additional condition to be satisfied to receive a document tendered by a person other than the maker is found in S.83(2)(a) of the Evidence Act, 2011. The witness through whom Exhibits 1 and 2 were tendered is the I.P.O in the case. He told the Court that he was the person assigned to the case when it was reported. That the photographs of the deceased was taken and attached to the case diary. He told the lower Court in his evidence that the photographer was nowhere to be found. Therefore, contrary to the contention of the learned SAN that the necessary conditions was not satisfied before Exhibits 1 and 2 were admitted, I find that the necessary condition was fulfilled.
Assuming there is a failure to sufficiently explain away the failure of the maker in the instant case to tender the photographs, I am still of the opinion that, against the background of the evidence of the PW6 detailing how he came about the photographs of the deceased body, the said photographs (Exhibits 1 and 2) is a fact relevant to the fact in issue and is therefore by virtue of Section 1 of the Evidence Act, a relevant fact and is therefore admissible. In the case of Kayili V Yilbuk (2015) 7 NWLR (Pt.1457)26 at 69 Paras B-C, it was held:
Where, by the nature of the facts contained in it, a document is made relevant to the facts in issue, its admission will be proper. The determinant factor in the circumstance is the weight to be attached to the evidence as tendered. While admissibility of a document may be made under the Evidence Act, the weight to be attached to its contents is another matter.
I respectfully do not agree that Exhibits 1 and 2 were wrongly admitted.
But assuming the said Exhibits 1 and 2 were wrongly admitted, it would not in any way have any bearing in relation to the finding of the lower Court in that respect.
It is not in doubt that the photographs were taken to demonstrate that the deceased was found dead. The Appellant’s counsel conceded the fact that the deceased was killed in his reply brief of argument. I hereby reproduce what counsel stated in paragraph 1.35 of the said reply address, for avoidance of doubt.
In response to paragraphs 4.27-4.31, we submit that the Respondent misconceived the argument of the Appellant therein, and we submit that there is no dispute as to the death of the deceased, but there is a reasonable doubt as to whether it was the act of the Appellant that caused the death of the deceased.
This fact having been conceded, this will amount to sheer dissipation of energy and time to go into the other related issue of whether the said Exhibits are computer-generated evidence. The Court in Kayili V Yilbuk (supra) at page 63, Paras E-F, 67, Paras E-G held:
By Section 75 of the Evidence Act where a fact is admitted, it is deemed proved and needs no further proof.
I will now proceed to deal with Exhibits 3 and 4. It remains the law that a maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law: (1) That the maker is dead; (2) That the maker can only be procured by involving the party in so much expense that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer questions on it, the non-maker of it is not in a position to answer questions on it in such a position. In the later situation, a Court of law will not attach any probative value to the document and a document that a Court does not attach any probative value to is as good as a mere paper on which it is made. After all, probative value is the root of admissibility of evidence. (See Section 83(1)(a) of the Evidence Act, 2011, and the case of Omega Bank (Nig) Plc V O.B.C. Ltd (2005) ALL FWLR (Pt.249) 1964 at 1994 Paras D-G, Per Niki Tobi, JSC (of blessed memory). See also the case of Belgore V Ahmed (2013) 8 NWLR (Pt.1355) 60 at 100, cited by Dr H.M. Liman, SAN counsel to the Appellant. Counsel also cited the case of Blessing V FRN (2015) 13 NWLR (Pt.1475) 1 at PP 36-38, Paras C-G in response to the reliance by Mrs Umar on Sections 55(1) of the Evidence Act to the argument of Dr Liman on the inadmissibility of Exhibits 3 and 4.
Indeed Mrs S.B. Umar relied on S.249(3)(c) of the CPC and S. 55(1) of the Evidence Act as seen in the Respondent’s brief of argument. Section 249(3)(c) of the CPC provides:
If by reason of such disagreement or otherwise it appears desirable for ends of justice that such medical officer or registered medical practitioner shall attend and give evidence in person, the Court shall summon such medical officer or registered medical practitioner to appear as a witness.
There is nothing in the record of appeal to show that the Appellant at the lower Court indicated his desire to request the attendance of the medical practitioner who authored Exhibits 3 and 4 to be summoned to give evidence, and the Court refused him. Counsel was specifically asked if he had any objection, he said he had none. He cannot now on appeal be heard to grumble that he was denied fair hearing or that the contents of the said Exhibits be not used. A party in law is not allowed to approbate and reprobate.
Section 55(1) of the Evidence Act validates the production of certificates of specified government officers to be sufficient evidence in all criminal cases. The specified officers include pathologists. Section 55(3) of the Act went on to state:
Notwithstanding Subsections (1) and (2) of this section, the Court shall have the power on the application of either party or of its own motion, to direct that any such officer as is referred to in the subsections shall be summoned to give evidence before the Court if it is of the opinion that, either for the purpose of cross examination or for any other reason the interest of justice requires.
Counsel to the Appellant at the lower Court did not deem it necessary to apply for the makers of Exhibits 3 and 4 to be called to give evidence so as to be cross examined. Can the Appellant now be heard to complain or to say that no probative value be attached to them? This question was answered in the case of Blessing V FRN (supra) 1 at pages?. In the following words:
‘… by virtue of Subsection 3 of Section 55 the Appellant had the option of applying to the Court to summon the forensic analyst P.O. Afolabi, for the purpose of cross examination but failed to take advantage of the provision. It is too late in the day to complain. I hold that Exhibit 4 was properly admitted in evidence and the Court was entitled to afford it full probative value ‘
The issue is thus rested. Exhibits 3 and 4 are therefore unquestionably admissible in the circumstances and were rightly admitted in evidence. Issue one is thus resolved in favour of the Respondent.
ISSUE TWO
Whether on the totality of the evidence before the court the charge against the Appellant was proved beyond reasonable doubt.
The issue is drawn from partly the 1st issue and all the other issues raised in the Appellant’s brief of argument which the Respondent also adopted. The gravamen of the issues are:
(1) Once Exhibits 1, 2, 3 and 4 are held to be inadmissible and expunged, there will be no sufficient evidence to convict the Appellant.
(2) That the prosecution’s evidence as testified to by the prosecution witnesses as to the nature of the weapon used in commission of the offence was contradictory and at variance with the charge against the Appellant, and therefore there was reasonable doubt as to the guilt of the Appellant which should have been resolved in favour of the Appellant.
Making copious references to the pages of the record of appeal, Dr Liman, SAN submitted that the prosecution witnesses (PW) 1-4 did not give evidence to support the charge as to the use of a knife in stabbing the deceased. That only PW5 gave evidence in support of the use of a knife. He contended that PW5 was the only one with the deceased when the Appellant allegedly invited the deceased to some distance away, and the said PW5 was also the first to get to the scene of the alleged crime as the cry of the deceased however attracted people to the scene, and also the one who informed those who came that it was the Appellant that was responsible for what happened even though he (PW5) did not see the Appellant stabbing the deceased. Dr Liman, SAN, contended that PW1-PW4 could not have seen the Appellant stabbing the deceased as well.
He submitted that the entire evidence of PW1-PW4 are at variance with the charge as laid, and that if their evidence is anything to go by, or to establish the fact that the Appellant actually stabbed the deceased with a dangerous weapon different from a knife as charged this must be on an amendment of the charge to fall in line with the preponderance of the evidence led by the prosecution (that is an iron or a white object). He thus submitted that the failure to amend the charge would result in the charge not having been proved. Counsel cited Aruna V State (1990) 6 NWLR (Pt.155) P.125 at pages 125-130 Paras H-A. Also cited are Abidoye V FRN (2014) ALL FWLR (Pt.722) 1624 at 1641 Paras F-G, P.1642 Para D; Agumadu V Queen (1963)1 ALL NLR 203.
Learned counsel also submitted that as between testimonies of PW5 and PW1-PW4, there are conflicting accounts. That the evidence of PW5 made the evidence of PW1-PW4 unreliable, and at best PW1-PW4 are but liars. He listed what he believed are contradiction in the prosecution’s case which were not explained. Citing the case of State V Azeez (2008)14 NWLR (Pt.1108) 437 at 482-483, Paras H-E, counsel submitted that where the prosecution’s evidence is found to be contradictory on a material issue the Court should give the benefit of doubt to the accused person. Counsel also referred to Sam V State (2015)15 NWLR (Pt.14832) 522 at 545 Para A; Chukwu V State (1996)7 NWLR (Pt.463)686; Adebayo V Ighodalo (1996)5 NWLR (Pt.450)507. On the duty of the prosecution to explain the contradiction in the evidence of its witness, counsel relied on Aigbadion V The State (2000)7 NWLR (Pt.666) 686 at 699, Paras E-G.
And as to the principle of law that the Court cannot choose and pick where evidence of prosecution witnesses conflict, we were referred to COP V Amuta (2017)4 NWLR (Pt.1556)379 at 399-400, Paras F-B. Relying on the case of Aliu V The State (2015)2 NWLR (Pt.1442)57 at 85, Paras D-G, P.86, Paras B-C; and State V Danjuma (1997)5 NWLR (Pt.506)572, Paras B-C counsel submitted that the burden of proof in criminal cases is proof beyond reasonable doubt, and that the evidence led must be credible. He concluded that the proof is by either of the following methods:
(i) Confessional statement.
(ii) Direct or eye witness evidence; or
(iii) Circumstantial evidence.
That the prosecution adopted proof by direct or eye witness account. He then went on to submit that while they agree that death of a human being was established as found at pages 109-110 of the records of appeal, he did not accept that the deceased died on the spot. Counsel contended that the finding of the lower Court pining the cause of death to the accused person is perverse. He relied on Igbikis v State (2017) ALL FWLR 883, 1405 at 1428, Paras E-G.
Learned counsel further submitted that if by the lower Court’s finding the incident took place at night, and therefore the Appellant could not have seen the relations stab the deceased, vice versa the prosecution witness could not have also seen the accused/appellant stab the deceased.
Counsel also picked holes in the failure of the prosecution to tender the report from Dr Garba’s hospital where the deceased was first taken. Similarly they faulted the failure of the prosecution to include the proof of evidence and statements made by all the prosecution witnesses in the charge, and urged that S.167 (d) of the Evidence Act should be invoked. Counsel also made a case out of the visit of the PW5 to the prison after his evidence in Court, and submitted that the visit creates doubt as to the guilt of the Appellant for the death of the deceased.
It is also the submission of Dr Liman SAN that the prosecution failed to prove the causal link between the alleged cause of death and the alleged act of the accused/appellant that caused the death. Counsel cited and relied on Oforlete V State (2000) FWLR (Pt.12) 2081 at 2104 and 2105 Paras F-A. Further submission of counsel is that the incident took place at night when there was no electricity therefore the lower Court ought to have been wary of the evidence of the prosecution witnesses.
Learned counsel submitted that the evidence of DW1 and DW2 was unchallenged and should be acted upon by the Court. He cited and relied on Chukwu V State (2013)4 NWLR (Pt.1343) P.16, Paras B-C.
In response to the submission of Appellant’s counsel, Mrs S.B. Umar counsel to the Respondent submitted that not every inconsistency or contradiction in the case of the prosecution can warrant reversal of the decision of the trial Court. That such contradiction must be material to the extent of casting serious doubt in the prosecution’s case. She submitted that contrary to the submission of Dr Liman for the Appellant, she submitted that a knife is not an ingredient of the offence of culpable homicide punishable with death. She relied on Galadima V State (2017)12 NWLR (Pt.1580)339 at 357 Paras F-H; and Iliyasu V State (2015)11 NWLR (Pt.1469)26 at 52-53, Paras D-A. She conceded that the evidence of PW1-PW4 did not support the charge as to the use of knife but that the evidence of PW5 did. However, she submitted that the contradictions as to the object used in committing the offence are not fundamental and substantial to the question of the accused/appellant committing the death of the deceased intentionally. Her contention further is that the Appellant was not misled and relied on Section 206 of the CPC.
Further on minor contradictions counsel relied on Musa V State (2015)9 NWLR (Pt.1359)214 at 236, Paras C-D. She contended that the need for amendment of the charge did not arise in view of Section 206 of CPC.
Further on discrepancies complained of by Appellant’s counsel, she submitted that contradiction or discrepancies in the evidence of two witnesses is inevitable or else it will give room for suspicion or collusion. She cited the case of Ezeuke V State (2016)6 NWLR (Pt.1509)529 at 535, Paras C-G. She further contended that all the inconsistencies itemised by the Appellant are immaterial to the fundamental issue before the Court, and urged us to discountenance the Appellant?s submission, more so, she further contended that PW1-PW4 were not discredited under cross-examination.
Mrs S.B. Umar further contended that by virtue of Section 135(1) of the Evidence Act, 2011, proof beyond reasonable doubt as contemplated in the law does not connote proof beyond all shadow of doubt ? Esene V State (2017)8 NWLR (Pt.1568)337.
On the contention of the Appellant that the deceased did not die on the spot where he was stabbed, Respondent?s counsel submitted that from the evidence of PW1-PW4, and PW6 the deceased died on the spot. She further contended that the lower Court was right in accepting and acting on the evidence of the prosecution witnesses, and that assessment of evidence of witnesses is within the province of the trial Court.
She cited Ndidi V State (2005)17 NWLR (Pt.96317 at 32-32, Paras G-A to support her submission. She thus contended that the decision of the trial Court is not perverse.
In further argument, she contended that Exhibits 3 and 4 (the medical report) which was admitted without objection revealed a deep penetrating injury inflicted on the deceased. She rejected the contention of the Appellant that the prosecution withheld evidence by not tendering the medical report issued at Dr Garba’s hospital.
In further argument, Mrs Umar contended that the prosecution did not need to include the statement of any witness in their proof of evidence. That they were also not bound to call Sagir Ibrahim as a witness. It is also the submission of the Respondent’s counsel that the act of the Appellant, the weapon used and the part of the body stabbed clearly proved that the Appellant intended to cause the death of the deceased.
On the Appellant’s argument on how the incident allegedly happened, the Respondent conceded that there was no electricity but submitted that offences can be committed in the dark. Moreover, that the evidence that there was bright moon light was not challenged, and therefore questioned the evidence of DW1 and DW2 who said they witnessed the beating of the Appellant. Counsel urged us to resolve this issue in the Respondent’s favour.
The Appellant’s counsel filed a reply brief of argument which I will refer to when and where necessary in the course of this judgment.
There are issues that have either been conceded to, or have been resolved in the course of this judgment that can no longer be contested. First, is that issue one having been resolved in favour of the Respondent, it is safe and appropriate to hold that the lower Court did not err in using Exhibits 1-4 as part of the reasons to adjudge the Appellant guilty of culpable homicide punishable with death. Exhibits 1 and 2 are photographs of the deceased and as pointed out elsewhere in this judgment, the Appellant?s counsel conceded the fact that there was the killing of a human being. Exhibits 1 and 2 show that the human being conceded to have been killed is the deceased, Shafir Muktar mentioned in the sole charge in this case.
Exhibit 3 is the police post mortem examination, while Exhibit 4 is the report of medical report on the cause of death. The death of the deceased as shown in Exhibits 3 and 4 resulted from injuries from deep stabbing.
It is now beyond peradventure that the Appellant was present when the deceased was stabbed to death, contrary to his evidence in Court denying complete knowledge of the death of the deceased and how he died. In this connection I should refer to the statement he made to the police on his arrest. The Hausa version is in evidence as Exhibit 5, while the English version is in evidence as Exhibit 6. It is instructive to reproduce verbatim portion of the statement at pages 130- 132 of the record of appeal.
‘ On 29/4/2008 at about 2200 hrs, while I was at the frontage of our house to watch football from there I went (and met) Basiru Muktar’s house but I did not met I only met his elder brother named Abdullahi Muktar and asked him whereabouts of his younger brother Basiru and he shows/pointed we were Basiru is. From there I went and met Basiru Muktar and asked him to kindly assist and allow that boy Modibo to enter film house which he is taking care from there Basiru Muktar said he will not allowed him enter even if I myself said I will enter he will not allow me the thing that led to a stage he abused me and I told him when he abused me again I will slap him, then he abused me and I slapped him, he revenge from there we started fighting then the following people namely 1. Abdullahi 2. Shafir (Deceased) 3. Muddasiru and Abubakar who are relations to Basiru Muktar came and supported Basiru and join the fight where we continue fighting when they over powered me and inflicted an injury on my head, nose and neck with knives and wood they are carrying. I felt down unconscious later when I regained consciousness I heard them saying I killed Shafir Muktar from there they pursued me and I escape to Funtua and boarded a motor vehicle to Lagos. Since then I did not come back to Bakori till on 7/8/2013 when I got an information that my mother was sick but when I came I met she died.
In fact I am not the one who killed Shafir, it was his relations who participated in the fight stabbed Shafir thing (sic) I am the one because we were fighting in the darkness and also I was not carrying anything when we are fighting. There are the ones carrying wood and knives. And when they pursued me saying that they will kill me made me fear not come back ‘.
This statement was abandoned by the Appellant at his trial in Court as can be seen from his evidence in Court as DW3 ? see pages 83-85. However, counsel to the Appellant keyed into it in the Appellant?s brief of argument and reply brief of argument. I refer to paragraphs 4.54 and 4.63, of Appellant?s brief of argument, and paragraph 1.42 of the Appellant?s reply brief of argument.
Exhibit 5 was voluntarily made by the Appellant. It is therefore clear that his evidence in Court denying complete knowledge of the death of the deceased is an afterthought.
My lords I want us to consider the contention of the Appellant?s counsel that the lower Court erred in convicting the Appellant despite the contradictions and inconsistencies in the evidence of the prosecution witnesses against the following background facts which cannot be disputed.
(i) That indeed the deceased was killed through stabbing (see Exhibits 1, 2, 3 and 4).
(ii) That the deceased died in the course of a fight (as claimed by the Appellant) involving the Appellant and the deceased and his brothers.
The law as to contradictions/inconsistencies in the evidence of witnesses called by a party (in the instant case, the prosecution) has two stand points, all of which must be applied in accordance with the peculiarities of the facts presented in a case. What amounts to contradiction or inconsistency was defined thus in the case of Prosper V The State (2016) ALL FWLR (Pt.861) 1227 at 1248, Paras E-G:
A contradiction defines a situation where a piece of evidence states the opposite of what another witness had affirmed or admitted. Contradictions or inconsistencies in the evidence of witnesses which are material to the proof of ingredients of a criminal offence are fatal as against the case for the prosecution.
The law is that where the prosecution’s case is found to be contradictory on a material issue, the court should give the benefit of doubt that stems from the non-credibility of such evidence to the accused person and discharge and acquit him. See Chukwu V State (1996)7 NWLR (Pt.463)686 at 701, Paras G-H. However, it is also the law that not every miniature contradiction in the evidence of prosecution witnesses can vitiate the case of the prosecution. Minor contradictions which did not affect the credibility of witnesses will not avail the accused person. see Musa V State (2015)9 NWLR (Pt.1359) 214 at 236, Paras C-D.
The Appellant’s counsel placed heavy weight on the following areas of the alleged contradictions in the Respondent’s case: (i) the contradiction in the testimony of the witnesses as to whether it was a knife that was used to stab the deceased or an iron or white iron as testified to by the prosecution witnesses; (ii) the alleged contradiction between the witnesses as to whether PW1-PW4 were not eye witnesses based on counsel?s perception of the evidence of PW5 that he alone was the eye witness; (iii) the alleged contradiction as to whether the Appellant actually stabbed the deceased because as submitted by counsel, for the PW1-PW4, they saw the Appellant stabbing the deceased with iron object whilst the PW5 only saw the Appellant holding a knife (but suspected that the Appellant was responsible); (iv) that whilst all the prosecution witnesses stated the date of the incident to be 29th April, 2008, PW2 was specific when he stated under cross examination that 29/4/08 fell on Thursday.
The contention of the Appellant’s counsel is that the contradictions were not explained by the prosecution, and this he holds is fatal to the prosecution’s case. The duty of this Court on these issues is, first to decide whether the contradictions did exist, and if so whether they are fundamental and cannot be wished away by the Court in favour of the prosecution.
As to the instrument used, there can be no doubt that PW1-PW4 did not categorically state the object used to stab the deceased to be knife. They refer to it as iron, while PW5 said it was a knife, even then, as opposed to PW1-PW4 who were categorical that the Appellant stabbed the deceased, PW5 said he heard the deceased screamed a distress sound in Arabic meaning he had been killed, when he was together with the deceased, and later saw the Appellant holding a knife.
I have had cause elsewhere in this judgment to refer to Exhibits ‘5’ and ‘6’ (the statement of the accused person/appellant which he did not disclaim, and which of course featured in the submission of his counsel when he urged us to believe the Appellant in his claim therein that the deceased was stabbed by his own relation who participated in the fight because they fought in the night. If this statement of the Appellant and the evidence of the prosecution witnesses are considered together, with all sense of truthfulness and fear of God, one cannot but come to conclusion that the deceased was stabbed with a sharp object. It is common ground between all the prosecution witnesses and the Appellant that this incident took place in the night; even though there was moon light as admitted to by some of the prosecution witnesses, it will be unfair to describe the testimony of PW2 who said it was dark as being untruthful.
After all, the Appellant himself accepted the fact that it was dark. There are natural events that are self-evident. In the night moon light cannot provide light all over the place. While some places may be dark, some very dark, some may even look as if some kind of light has been provided. In an environment like this, not all persons around can see objects clearly. Therefore in this circumstance, where all the prosecution witnesses all said the deceased was stabbed by the Appellant, while on the other hand the Appellant claimed that the deceased was stabbed by his relation, the description of the object used as knife; white iron or iron cannot be regarded as a major contradiction that would create doubt in the mind of the Court as to the death of the deceased as a result of the injuries sustained from being stabbed, and in the chest and neck region for that matter.
I want to proceed to look at the alleged discrepancies between the prosecution witnesses, and in specific reference to the contention that only PW5 was an eye witness. The lower Court which watched the witnesses when they testified on oath believed that they were consistent in their evidence. I have not really seen anything in the evidence of the prosecution witness PW5 that suggests that PW1-PW4 were not at the scene. Each of them narrated the role they played when the incident happened. The statement of the Appellant (Exhibits 5 and 6) attest to the fact that PW1-PW4 were present at the scene. Refer once again to the statement of the Appellant at pages 13-133 of the record of appeal. Refer particularly to page 131 where the Appellant gave the names of those present at the happening of the incident. They are (1) Abdullahi, (2) Shafir (the deceased), (3) Muddasiru, (4) Abubakar.
The Appellant’s counsel placed weight on a statement credited to PW5 that he was the one who informed the other witnesses of what happened when they came. I am unable to share that point of view with the Appellant’s counsel, and I want to refer to the relevant portion of the evidence of PW5 on page 48 of the record, anon:
‘The cry of the deceased attracted people to the place within a short time. However before I could reach the deceased he fell down, and all those who were at the scene rushed towards the deceased and I narrated to all those who came asking question that it was the Accused that was responsible for what happened to the deceased.’
There is nowhere he named the PW1-PW4 as being among those who rushed to that place asking question and he narrated to them what happened. PW1 for instance, whom the Appellant’s counsel dubbed a liar for reasons that are unjustified, in my respectful view gave a succinct narration of the part he played when the incident happened. I place high premium on his evidence. I invite my lords to once again read the testimony of PW1 on pages 34-37.
I cannot therefore agree with the Appellant?s counsel that there is a major contradiction between the evidence of PW1- PW4 on the one hand and that of the PW5 on the other hand.
There is again in my respectful view no contradiction between the testimonies of PW1-PW4 who said they saw the Appellant stab the deceased and that of PW5 who said he heard the deceased cried out in pain, staggered and he saw the Appellant holding a knife. Look at the evidence of PW5 again at page 48 part of which read:
The deceased urged and pleaded with the Accused to forget and forgive what was done to him. At this material time they were holding hands together. It was then the Accused invited the deceased to join him and he stood up, they moved some distances away. I then heard the deceased cry loudly shouting inna lillahi (from God we come)
I turned my attention towards them, I saw the deceased staggering while the Accused was holding a knife and run away towards their house. I then stood up and went and met the deceased.
From this narration no other conclusion can be drawn other than that the Appellant inflicted a mortal injury on the deceased, the seriousness of which made the deceased believed he was going to die and cried in anguish. The witness was just honest by saying that he did not see the point of contact between the Appellant’s knife and the deceased. The evidence of all the prosecution witnesses to my mind amount to the same thing, that the Appellant stabbed the deceased.
Appellant’s counsel picked holes in the evidence of PW2 that 29th April, 2008 was Thursday. There is no doubt that the incident took place on 29th April, 2008. All the prosecution witnesses and the Appellant are agreed on that. The only point of disagreement which counsel to the Appellant used as a basis for alleging that there is a contradiction in the prosecution case on this issue is that PW2 told the Court under cross examination that 29th April, 2008 was a Thursday.
This incident took place on 29th April 2008. PW2 gave his testimony on 30th April, 2014, about exactly 4 (four) years after the incident. To be fair, that the witness told the Court that 29th April, 2008 was a Thursday, whereas it was not is not sufficient to brand his evidence unreliable that should affect the credibility of the prosecution’s case. For people who naturally have a short memory, even a period of six months or at most a year is enough for details like that to be forgotten. The point I am making is that the misstatement by PW2 that 29th April, 2008 fell on a Thursday is not conclusive that it was a deliberate falsehood, and I refuse to treat it as a contradiction that could impact negatively on the credibility of the prosecution’s case.
Another major issue on which the Appellant placed heavy premium is that the Respondent (the prosecution) should have applied to have the charge amended because of the evidence of some of the witnesses that the deceased was stabbed with an iron or white object as opposed to the charge which specifically stated that the deceased was stabbed with a knife. Counsel relied onAruna V State (1990) 6 NWLR (Pt.155)125 at 135-136, Paras H-A; and Abidoye V FRN (2014) ALL FWLR (Pt.722) 1624 at 1641, Para D. amongst other cases.
The submission of Appellant’s counsel is that knife was made an ingredient of the offence, and therefore something else having been revealed in the evidence of the prosecution witnesses (PW) 1-4, the charge should have been amended to fall in line. The Respondent’s counsel disagreed with him and went on to state the ingredients of the offence of culpable homicide punishable with death. She submitted that the need to amend the charge did not arise and that the Appellant failed to prove to the Court that he was misled. The ingredients of the offence of culpable homicide punishable with death are:
(a) That the death of a human being was caused.
(b) That the accused was the cause of the deceased person’s death; and
(c) That the act of the accused leading to the death of the deceased person was done intentionally or with knowledge that death or grievous harm was the probable and not the likely consequence of the act.
On this I rely on Galadima V State (2017)12 NWLR (Pt.1580) 339 at 357 Paras F-H; and Iliyasu V State (2015)11 NWLR (Pt.1469)26 at 52-53, Paras D-A.
What can be deduced is that the charge of culpable homicide is complete without the instrument used by the accused in causing the death of the deceased being inserted or stated in the charge. see Ajayi V State (2011) LEGALPEDIA CA 4960. Stating the instrument used only further assists the accused person to prepare to meet the case against him. The only defence which the Appellant was entitled to bring further if he felt that what was put in evidence as the instrument allegedly used by the Appellant in causing the death of the deceased is different from what is stated in the charge, is to raise, as it were a case of non proof of an essential ingredient of the offence but not to suggest an amendment to the charge. I disagree with learned Appellant’s counsel that there was need to amend the charge. He appropriately raised the issue that he was entitled to raise, and that is, that there were contradictions in the evidence of the prosecution witnesses as regards the instrument that was used; and that has been addressed already, albeit unfortunately resolved against the Appellant after a careful evaluation of the evidence on record.
On the evidence before the Court, inclusive of the Exhibits, I hold that the prosecution (the Respondent) clearly made out a case for the defence (the Appellant) to rebut.
The prosecution evidence clearly established that there was an initial misunderstanding between the Appellant and Abdul-Basir (PW1) which resulted into a fight between the Appellant and Abdullahi, a senior brother of Abdul-Basir and the deceased. Thereafter the Appellant came back probably because he felt cheated in the earlier fight, and this second time, the deceased became his victim. The Appellant?s defence deserved outright rejection when his statement to the police (Exhibits 5 and 6) is put side by side with his evidence in Court. In Exhibits 5 and 6, he admitted of a fight involving him and the deceased and his brothers in the process of which the deceased was stabbed by one of his brothers, who later turned around to blame him for the killing.
That as a result he ran away when he was chased by the brothers of the deceased to Funtua, from where he boarded a vehicle to Lagos, and remained there till when in 2013 he learnt of his mother’s condition and came home. (see his statement to the police Exhibits 5 & 6 on pages 125-133 of the record of appeal). In his defence testifying as DW3, he told the Court that there was a fight in which five members of the deceased family beat him up to the stage of unconsciousness from which he later regained consciousness when they were still there, and ran away and was pursued by them. Under cross examination he told the Court that from 2008 when he ran away following the fight he was at school, and did not know why he was arrested in 2013 when he came home following his mother’s death. That he was simply arrested for no reason! (see the evidence of the Appellant on pages 83-85 of the record of appeal). No where in the entirety of his case both at the trial Court and this Court did the Appellant disowned Exhibits 5 & 6 as his statement.
The evidence of the Appellant’s two witnesses shows that they probably only witnessed the first fight between the Appellant and the deceased and his brothers. They did not at all allude to the narration of events as stated by the Appellant in Exhibits 5 & 6. It is either they did not know of it, or, just as the Appellant did, they deliberately decided to omit it. I refer to the evidence of the two defence witnesses (DW1 and DW2) on pages 72-74; 76-79).
The lower Court cannot therefore be faulted for rejecting the case of the defence (Appellant). In sum total, the lower Court was right in convicting and sentencing the Appellant for the offence.
Issue two is also thus resolved against the Appellant. The appeal therefore fails as it is devoid of merit.
I hereby affirm the conviction and sentence of the lower Court.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft Judgment of my learned brother, JAMES GAMBO ABUNDAGA JCA and I agree with the reasoning and conclusion reacted in the said Judgment. The issues in the appeal were considered in great detail and I have nothing useful to add.
Appearances:
Dr. Hassan M. Liman, SANFor Appellant(s)
S.B. Umar, Esq.For Respondent(s)
