MUSA HAMZA v. THE STATE (2016)

MUSA HAMZA v. THE STATE

(2016)LCN/8549(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/K/292/C/2014

RATIO

EVIDENCE: ON WHOM LIES THE BURDEN TO PROVE IN CRIMINAL TRIALS
It is trite that in a criminal trial, the burden of proving the guilt of an accused person beyond reasonable doubt, is rigidly placed on the prosecution. See ALI V STATE (2012) All FWLR (Pt.610) 1313 at 1331, and by the combined effect of Section 36(5) of the Constitution of Federal Republic of Nigeria 1999 as amended and Section 29(2) of the Evidence Act, 2011, the burden on the prosecution is the same where the voluntariness of a confessional statement tendered in evidence is challenged; OSENI V. STATE (2012) LPELR – 7833 (SC), AUTA V. STATE (1975) NNLR 60, 65 (SC), EKE V STATE (2011) All FWLR pt. 566) 430 at 438. PER AMINA AUDI WAMBAI, J.C.A.
EVIDENCE: TRIAL WITHIN TRIAL; ON WHOM LIES THE BURDEN OF PROVING THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT
Where at the point of tendering a confessional statement the accused denies its voluntariness, it is the duty of the prosecution to prove positively and affirmatively beyond reasonable doubt in a mini-trial, called Trial Within Trial (TWT), that the confession was made voluntarily. IBEME V. THE STATE (2001) 14 NWLR (pt. 734) 666, EMEKA V. STATE (2001) 14 NWLR (Pt. 734) 666, COMMISSIONER OF POLICE v. DONATUS UDE (2010) LPELR (CA). PER AMINA AUDI WAMBAI, J.C.A.
EVIDENCE: CIRCUMSTANCES MEDICAL REPORTS WILL NOT BE NEEDED IN RELATION WITH THE CAUSE OF DEATH
By the principle of causation, an event is caused by the act proximate to it and in the absence of which the event would not have happened. In a charge of culpable homicide, the important consideration for determining responsibility is whether death of the deceased was caused by the injuries he sustained through the act of the accused and not whether from the medical point of view death was caused by the injuries. See R v. EFFANG (1969) 1 ALL NLR 339 considered, in Uyo v. A. BENDEL STATE (1986) 1 NWLR (Pt. 17) 418.
Medical evidence though desirable to determine the cause of death is not essential in all cases of culpable homicide. The presence or absence of medical evidence would not vitiate a criminal trial, as the Court is entitled to examine the evidence and draw the necessary inference. In other words, in the absence of a medical report, a trial Court can still infer the cause of death provided there is clear and sufficient evidence that death of the deceased is the direct result of the unlawful act of the accused person to the exclusion of all other reasonable possible causes. See ALI V STATE (supra) at 1342; OSUAGWU V STATE (2013) 5 NWLR (Pt. 1347) 360 at 390; OBI v. STATE (2013) 5 NWLR (Pt. 1346) 68 at 85. In OGBU & ANOR V. STATE (2007) LPELR – 2289 (SC) the Court further held that where there are facts which sufficiently show the cause of death to the satisfaction of the Court, the medical report ceases to be of any practiced or legal necessity. PER AMINA AUDI WAMBAI, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

MUSA HAMZA Appellant(s)

AND

THE STATE Respondent(s)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): At the Katsina State High Court of justice in charge No. KTH/32C/2012 dated 29th October, 2012, the Appellant as the accused person was charged on a one count charge of the offence of Culpable Homicide punishable under Section 221 of the Penal Code, in that the Appellant on or about the 19th day of April, 2012 at Abukur Village, Rimi Local Government Area of Katsina State, hit one Suleiman Abubakar with a hoe blade on his stomach which resulted to his death. With the knowledge that death would be the probable consequence of this act.

?The brief facts of the case are that the deceased Suleiman Abubakar was on the fateful night of 19/4/2014 at about 8:00 PM in the company of his friend one Abubakar Umar, on their way to Mandiri behind Abukur township mosque, when chased and attacked by someone whom both the deceased and Abubakar Umar (PW2) identified to be the Appellant. The deceased was struck and injured with an iron rod, on his stomach, developed pains and fell ill. He was subsequently taken to Abukur dispensary for medication from where he was referred to Federal Medical Centre Katsina where his

chest and stomach were x-rayed. He was referred to General Hospital Katsina whereat he was operated upon, but the stomach pains persisted and he subsequently died. The Appellant was arrested and arraigned on a charge of Culpable Homicide punishable under Section 221 of the Penal Code.

At the trial of the case, the Appellant pleaded not guilty to the charge. The Respondent as the prosecution, called 3 witnesses and tendered 2 Exhibits, Exhibits A and A1, the Appellant’s statements to the Police which were so admitted after a Trial within trial. The medical and post mortem reports tendered were rejected and accordingly so marked.

In denying the allegation, the Appellant testified for himself and called one other witness but tendered no Exhibit. After the close of the defence and adoption of written addresses, the trial Judge in a considered Judgment delivered on 31st March, 2014 found the Appellant guilty as charged, convicted and sentenced him to death by hanging.

Aggrieved with the said Judgment, the Appellant commenced this appeal vide a notice of appeal on 21/5/2014 dated 20/5/2014 predicated upon 2 grounds.

?In compliance with the Rules

of this Court, both Counsel filed and exchanged their briefs of argument. The Appellant’s brief of argument dated 1/12/2014 and filed on 25/2/2015 was settled by N. O. Ishola Esq., wherein 2 issues were distilled for determination to wit:-
“(1) Whether the learned trial Judge was right by admitting and acting on the said confessional statement in convicting the Appellant.
(2) Whether the evidence before the lower Court is sufficient enough to warrant the conviction of the Appellant.”

The Respondent?s brief of argument dated 4/5/2015 and filed on 05/05/2015 but deemed properly filed on 6/7/2015, was settled by Hassan Yusuf Esq., wherein the Respondent adopted the issues formulated by the Appellant.

At the hearing of the appeal on 14/3/2016 while the learned Counsel for the Appellant adopted his brief of arguments and urged upon us to allow the appeal, the learned Respondents Counsel adopted his brief and prayed the Court to dismiss the appeal.

?This appeal shall be determined on the 2 issues formulated by the Appellant’s Counsel subject to the 1st issue been recast as follows:-
“Whether the learned trial Judge was right in

admitting Exhibits A and Al as the confessional statements of the Appellant”
ISSUE NO. 1
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN ADMITTING EXHIBITS A & A1 AS THE CONFESSIONAL STATEMENTS OF THE APPELLANT.

On this issue, it was submitted for the Appellant that the 2 Exhibits A and A1 (the Appellants statements to the police) ought not to have been admitted and relied upon by the trial Court because the procedure adopted by the police in obtaining the statement was a product of question and answer session between the Appellant and the IPO which made the statement involuntary. NAMSOH v STATE (1993) 5 NWLR (Pt. 292) 129 at 133-134 was cited in support. Stretching further, it was submitted that the proceeding of the Trial Within Trial at pages 26-27 of the printed records, reveal that the Appellant only agreed to cooperate with the police after been beaten thus rendering the statement involuntary, inadmissible and ought to be expunged, contending that if so expunged there would be nothing left to sustain the Appellant’s conviction. He cited in support KABIRU ALIWU V THE STATE (2009) 4 MJSC (Pt. ii) 147 at 152.

?In response, the learned

Respondent’s counsel answered the poser by the Appellant in the affirmative and posited that the trial Court was right in admitting Exhibits A and A1 maintaining that the argument of the Counsel to the Appellant is misleading and is an attempt to misdirect the Court as the authority cited does not in any way support his argument and also for failing to the refer to testimony of PW3 in the main trial where PW3 testified that the Appellant voluntarily gave his statement to the PW3.

On the contention that Exhibits A and A1 are inadmissible being products of a question and answer session, Respondent’s Counsel submitted that there is no rule in our criminal procedure or the Law of evidence Act which makes involuntary and inadmissible a statement recorded by the Police by questioning the accused. He relied on SALAWU V STATE (2011) 7 SCNJ 67 at 87.

?It is trite that in a criminal trial, the burden of proving the guilt of an accused person beyond reasonable doubt, is rigidly placed on the prosecution. See ALI V STATE (2012) All FWLR (Pt.610) 1313 at 1331, and by the combined effect of Section 36(5) of the Constitution of Federal Republic of Nigeria 1999 as

amended and Section 29(2) of the Evidence Act, 2011, the burden on the prosecution is the same where the voluntariness of a confessional statement tendered in evidence is challenged; OSENI V. STATE (2012) LPELR – 7833 (SC), AUTA V. STATE (1975) NNLR 60, 65 (SC), EKE V STATE (2011) All FWLR pt. 566) 430 at 438.

Where at the point of tendering a confessional statement the accused denies its voluntariness, it is the duty of the prosecution to prove positively and affirmatively beyond reasonable doubt in a mini-trial, called Trial Within Trial (TWT), that the confession was made voluntarily. IBEME V. THE STATE (2001) 14 NWLR (pt. 734) 666, EMEKA V. STATE (2001) 14 NWLR (Pt. 734) 666, COMMISSIONER OF POLICE v. DONATUS UDE (2010) LPELR (CA).

?In the instant case, objection was raised to the admissibility of the Appellant’s statement to the police on the ground that it was not made voluntarily because the Appellant was beaten and tortured by the police before making same. That necessitated the conduct of a Trial Within Trial wherein 2 witnesses testified for the prosecution who explained the manner the statement was rendered and maintained that it was taken

voluntarily. The Appellant testified as DW1 and testified that he was beaten and tortured to make the statement. The learned trial Judge who saw heard and observed the witnesses considered the evidence for the prosecution and the Appellant and in admitting the statements, held that the Appellant was unable to support his allegation of torture or undue influence.

Significantly also, the Appellant at page 27 of the record stated he signed his statement voluntarily and in cross-examination, admitted that it was what he told the Investigation Police officer that was written in the said Exhibits A and A1.

?On the contention that Exhibits A and A1 are products of question and answer between PW3 and the Appellant thereby making them involuntary and inadmissible, I know of no Law that automatically makes involuntary and inadmissible a confessional statement solely on the ground that it was obtained by means of a Police officer questioning an accused person and recording the answer given by the accused. The case of Namson v. State (Supra) relied upon by the learned Counsel to the Appellant neither decided that a statement recorded as a result of question and

answer between the Police officer and the accused automatically and ipso facto become involuntary and inadmissible nor are the facts upon which Namson’s case was decided same with the facts in this appeal.
In Salawu v. State (2009) LPELR – 8867 (CA) this Court relied upon and mis-applied the decision in Namson’s case and declared the accused/Appellant’s statement involuntary and inadmissible but on appeal, the Supreme Court in Salawu v. State (2011) LPELR – 9357 (SC) explained what it decided in Namson’s case and distinguished that case from the fact in Salawu?s case. The striking feature in Namson’s case was that there was a sheet of paper containing selected questions and answers already prepared by the IPO’s superiors with which the IPO was armed while recording the statement. That was conspiously absent in Salawu’s case as it is so absent in this case. Unlike in Namson’s case, there is in this appeal not even a slight suggestion let alone any iota of evidence of any specific questions asked by PW3 in response to which the admission in Exhibit A and A1 were made.
?I am therefore at one with the Respondent’s Counsel that Namson’s case is

distinguishable from the facts of this instant appeal. Furthermore, it is necessary to emphatically emphasize that Namson’s case did not decide that in every case where in the course of recording the statement of an accused person a Police officer asks questions and records answers the statement automatically becomes involuntarily and inadmissible in Law. That is not the principle upon which Namson’s case was decided. I am reinforced in this view by the dictum of Tabai JSC in Salawu’s case (Supra) which was restated in Jimoh v. State (2011) 7 SCNJ 67, 87-88. It is therefore clear that such a statement would become involuntary and inadmissible only where the prepared questions are oppressive to the accused and intended to sap and indeed sapped the free will of the accused person to freely make the statement see Salawu v. State @page 32. This is not the situation in this case.
?I therefore hold that Exhibits A and A1 do not become involuntary and inadmissible merely by PW3 stating in cross-examination that he questioned the Appellant and the Appellant answered in the process of recording the statement. Moreso here, that Appellant said that he voluntarily

signed the statement.

I therefore hold that Exhibits A and A1 were properly admitted in evidence and resolve the issue in favour of the Respondent and against the Appellant.

ISSUE No.2
WHETHER THE EVIDENCE BEFORE THE LOWER COURT IS SUFFICIENT ENOUGH TO WARRANT THE CONVICTION OF THE APPELLANT

In support of this issue, it was submitted for the Appellant that the lower Court erroneously reached its findings by accepting the evidence of PW2 as the testimony of an eye witness to the attempt to hit the deceased even though the said witness agreed that it was dark and did not know what happened, contending that his evidence is unreliable and the reliance placed on the evidence by the Lower Court is baseless, citing in aid the case of Kabiru Almu V The State (2009) 4 MJSC (Pt. II) 147 at 162.

?Counsel contended that the learned trial Judge did not properly evaluate the evidence before the Court to establish the cause of death which was raised by the evidence of PW1 to the effect that the operation carried out on the deceased was unsuccessful and he was unattended to and died. Equally, that the contents of the medical report erroneously rejected

by the Lower Court were contrary to the evidence of the prosecution witnesses as, also, the failure to produce the weapon used to determine the nature of the offence, all created gaps in the prosecution’s case which the Lower Court ought not to fill. MICHAEL V. STATE (2008) VOL. 162 LRCN, Page 144 was referred to.

The further submission of the Counsel is that the failure of the trial Judge to consider the unchallenged evidence of the Appellant and all defences available to him occasioned a miscarriage of justice, citing OJO v. STATE (1973) 11 SC 331, LAOYE V. THE STATE (1985) 2 NWLR (Pt. 10) 832, UDOS V. STATE (2007) 4 SCNJ 493 and Counsel concluded that there was no evidence to warrant the conviction of the Appellant.

Contrariwise, and in refuting the Appellant’s argument, it was submitted for the Respondent that the learned trial Judge properly evaluated the evidence placed before the Court including the evidence of PW2 who was an eye witness to the Appellants chasing the deceased, and was shown the injury sustained by the deceased which Appellant did not deny died.

?It was further submitted that the learned trial Judge was at liberty to

believe the evidence of the Prosecution witnesses and disbelieve those of the defence on the basis of their credibility Citing Naidi v. State (2005) 17 NWLR (Pt. 953) 17, 32-33 G-A and contending that the case of Kabiru Alamu V The State cited by the Appellant’s Counsel is inapplicable.

Additionally, it was argued that the Appellant could be convicted solely on his confessional statement (Exhibits A and A1) if the Court believed the truth of the confession and cited AGBOOLA V. STATE (2013) 5 SCNJ 683, 689 in support. Moreover, the evidence of PW1, PW2 outside the confession, linked the Appellant to the death of the deceased and that even the evidence of DW1 did not deny that the Appellant killed the deceased.

On the Appellant’s oral evidence in Court being in conflict with contents of his confessional statement, Counsel opined that the Court is entitled to discard the oral evidence and act on the confession relying on OGUN V. STATE (2011) 12 SCNJ 1, @ 16, BASSEY V. STATE (2012) 12 NWLR (pt. 1314) 209, 227.

?He concluded that the Respondent proved its case beyond reasonable doubt against the Appellant as proof beyond reasonable doubt does not mean

beyond shadow of doubt. Citing in aid the case of MICHAEL V. STATE (2008) 13 NWLR (pt. 361) 367, 384 E-F.

Now, it is clear from the argument canvassed by the Appellant’s Counsel that his principal complaint is against the evaluation of evidence including Exhibits A and A1 by the learned trial Judge.

It is now settled Law that the exclusivity of evaluation of evidence and ascription of value to the evidence resides in the trial Court which had the opportunity of seeing, hearing and observing the demeanor of witnesses. This primary duty of the trial Court is exercised by receiving evidence presented before the Court, assessing and weighing the received evidence and then ascribing the proper value to same.
Explaining this duty of the trial Court, Oputa JSC in OLUFOSOYE V. OLUFEMI (1989) 1 SC (Pt. 1) 29 said:-
“There is a duty on a trial Court to receive all available evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the con of the surrounding circumstances of the case. This is evaluation of evidence”.

?Thus, the making of findings of fact is a function pre-eminently within

the function of the trial Court and when the trial Court has unquestionably performed its function and has satisfactorily evaluated the evidence before it, it is not for the appellate Court to evaluate the same evidence and come to its own decision except where the findings or conclusions arrived at are perverse or wrong inferences were drawn or made on accepted facts or wrong principles have been applied to the facts. OSUJI v. EKEOCHA (2009) 16 NWLR (pt. 1166) 81 SC, THOMPSON V. AROWOLO (2003) 7 NWLR (Pt. 818) 163.

A finding of fact or decision of Court is said to be perverse when it runs counter to the evidence and pleadings or the trial Court took into account matters which it ought not to have taken into account (extraneous matters) or shuts its eyes to the obvious or when the decision has occasioned a miscarriage of justice. MINI LODGE LTD & ANOR V. NGEI & ANOR (2009) 18 NWLR (Pt. 1173) 254, NEPA V. J. A. OSOSANYA & ORS (2004) LPELR 1960 (SC).

The Appellant therefore has the duty to show that the trial Court did not properly evaluate the evidence or its evaluation was perverse.

?It has been and still remains a cardinal principle

of our criminal Law that the burden of proving that any person has been guilty of a crime or a wrongful act, subject however to certain exceptions (which do not apply here) rests squarely on the prosecution who asserts the commission of the crime, to prove same beyond reasonable doubt by virtue of Section 135(1) of the Evidence Act CAP E.14, 2011 which provides as follows:-
“lf the commission of a crime by a party to any proceedings is directly in issue in any proceeding Civil or Criminal, it must be proved beyond reasonable doubt”
For the prosecution to secure or sustain a conviction, it must prove each and every ingredient of the alleged offence beyond reasonable doubt or else the accused will be entitled to an acquittal . ORJI v. STATE (2008) 10 NWLR (Pt. 1094) 31 SC KAYODE V. STATE (2012) 11 NWLR (Pt. 1312) 523, AFOLABI V. STATE (2010) 6-7 MRSC 187, 220.

?In a charge of culpable homicide punishable with death, as in this appeal, to succeed, the prosecution is required to prove the following ingredients:-
(a) That the death of a human being has taken place,
(b) That the accused caused the death of the deceased,
(c) That the act

was done with the intention of causing death, or the accused knew or had reason to know that death would be the probable cause of his action.
These necessary ingredients must co-exist for the prosecution to succeed. MUSA V. THE STATE (2009) 15 NWLR (Pt. 1165) 467 C- E, OHEMAJE V. THE STATE (2008) 15 NWLR (Pt. 1109) 57.
It is needless to state that failure to prove any of the ingredients beyond reasonable doubt means failure to prove the charge. ADAVA v. STATE (2006) 9 NWLR (Pt. 984) 152, NWAEZE V. THE STATE (1996) 4 NWLR (Pt. 443) 375.

It is now firmly settled that the guilt of an accused person may be proved either by the evidence of a person who witnessed the commission of the offence (eye witness), confession of the accused or by circumstantial evidence. IGRI v. STATE (2012) 16 NWLR (Pt. 1327) 522, HARUNA V. A.G.F. (2012) LPELR – 7821 (SC), OKPAKO V. THE STATE (2012) LPELR – 9468 (CA), EMEKA V. STATE (2005) 4 LRCN 259.

?On the 1st ingredient that a human being died, there is no contention that the death of a human being occurred and the evidence of PW2 as well as that of PW1 who is the father of the deceased established that the death of

Suleiman Abubakar took place and the corpse brought to PW1.

On the 2nd and 3rd ingredients that the intentional act of the Appellant caused the death of the deceased or that the Appellant knew or had reason to know that death could be the probable cause of his action, the evidence adduced by the Respondent in support of these two ingredients consist of Exhibit A and A1 and the viva voce evidence of PW1 and PW2.

In Exhibit A1, the English version of Exhibit A at pages C-D of the record, the Appellant stated inter alia:-
“…..While l was going out from our house I took one hoe handle and hide it inside my trouser and went out, while I was walking reaching Unguwar Fulani, i saw one small boy by name Suleiman Abubakar walked at the street, upon which my mind told me that I should beat him with the said hoe handle, I also came out with the said hoe handle and beat him in his chest without telling me anything, by the time I beated (sic) him he falled (sic) down crying…. after some days on 7/05/2012 the said Suleiman was dead as the result of that beating.”

?It is settled Law that an accused person can be convicted solely upon his confessional

statement so long as it is credible, direct, positive and satisfactorily proved. UBIERHO V. STATE (2005) 5 NWLR (Pt. 919) 644, OSUNG V. THE STATE (2012) All FWLR (Pt. 650) 1226.

Confessional statement of an accused person where found to be voluntary and unequivocal, provides the best evidence of the person’s guilt. Resiling from the statement does not make it unreliable. The Court can still admit and convict on the retracted confession if it is satisfied that the statement was made by the accused and guarantees its credibility. However, where as in this case the confession is retracted or the accused resiles from same, it is desirable by practice to find outside the confession, some evidence howsoever slight, of circumstances to make it probable that the confession was true. BUSARI v. STATE (2015) All FWLR (Pt. 777) 715 @732-733 H-G, YUSUF V. STATE (1976) 6 SC 167.
?The proper approach of testifying the veracity of a retracted confession as established by the cases is to subject the confession to the following tests. These are:-
“i. Is there anything outside the confession to show that it is true?
ii. Is it corroborated?
iii. Are the

relevant statements made in it of facts true as far as they can be tested?
iv. Was the prisoner one who had the opportunity of committing the murder?
v. Is his confession possible?
vi. Is it consistent with other facts which have been ascertained and have been proved?”
See Haruna v. A. G. Fed. (Supra), NWACHUKWU V. STATE (2002) 12 NWLR (Pt. 782) 543, GALADIMA V. STATE (2012) 18 NWLR (Pt. 1333) 610.

What then is corroborative evidence?
Corroborative evidence is any independent or supplementary evidence outside the evidence already given which tends to strengthen or confirm the already given evidence. It is additional evidence of a different character on the same point. Corroborative evidence is therefore simply a confirmatory evidence of a witness’s evidence by an independent testimony to the effect not only that a crime has been committed but that it was committed by the accused person. See Blacks Law Dictionary, 6th Edition page 344 and SALIU V. STATE (2014) LPELR 22998 (SC), DAYAYA V. STATE (2006) 1 SC (pt. 11) 1 @ 18, OKABICHI & ORS. V. STATE (1975) 11 All NLR 17, In ADONIKE V. STATE (2015) LPELR 24287 (SC), Muntaka Coomassie JSC

referring to previous decisions of the Supreme Court defined what amounts to corroborative evidence in these terms:-
“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.
In other words, it must be evidence which implicates him, that is which confirms in some material particular not only that the crime has been committed but also that the prisoner committed it…..”

The testimonies of the prosecution witnesses especially of PW2 and PW1 and that of the defence are evidence outside the confessional statement.

Do they corroborate the confession and show that the Appellant committed the offence charged, as admitted in Exhibits A and A1?

?The evidence of PW2 at pages 21-22 of the record is that: he was together with the deceased on the fateful night at about 8:00 PM on their way to Mandiri behind Abukur township mosque when the Appellant wanted to attack them, and he escaped but the Appellant chased the deceased and when the deceased came back to meet him, the deceased told him that the Appellant hit him with iron rod on his stomach and

lifted his shirt to show PW2 the injury. They returned home where they used to sleep and the deceased could not sleep as a result of the pain from his injured stomach until PW2 messaged the area with hot water.

The illness got severe and the deceased’s father, Abubakar Rabo Abukur (PWI) took the deceased to the dispensary, the Federal Medical Centre and then to the General Hospital where he was operated upon but the stomach pain persisted and the deceased subsequently died.

?The Appellant?s Counsel argued that PW2 is not an eye witness and his evidence was wrongly relied upon by the learned trial Judge. By Section 126(a) of the Evidence Act, an eye witness is a witness who saw or witnessed the occurrence of the event, of which he testifies about. In this sense while it is true that PW2 is not an eye witness to the actual hitting of the deceased by the Appellant, he is obviously an eye witness to the Appellant chasing the deceased and when the deceased returned to meet PW2 who was waiting for the deceased, he saw the injury sustained by the deceased on his stomach. The witness maintained in cross-examination that he knew the Appellant before the

attack and recognized him as the person who attacked and chased the deceased. Shortly after being chased by the Appellant, the deceased showed to PW2 the injury he sustained. PW2 witnessed all the events leading to the injury inflicted on the deceased. It has not been suggested let alone was there any iota of evidence on the Part of the defence to show that the deceased had the injury on him before being attacked and chased by the Appellant. The interval of time from the time the deceased was chased to the time he came to meet PW2 and showed PW2 the injury, leaves no room to suggest that another person other than the Appellant inflicted the injury on the deceased. This fact is supported by the confessional statement of the Appellant already reproduced in this Judgment. The learned trial Judge evaluated the evidence of PW1 and PW2 from the attempt to attack the deceased which the PW2 witnessed, to the injury the deceased sustained, and his being taken to the hospital by PW1 up to the time the deceased died and correctly held that, the pieces of evidence cannot be referred to as hearsay evidence. The learned trial Judge was therefore right in his finding and

conclusion that the PW2 was an eye witness to the attempt to hit the deceased.

It was also contended by the Appellant’s Counsel that the contents of the wrongly rejected Exhibits, the medical report and the report of the post-mortem examination, are contrary to the evidence of the prosecution witnesses for while the documents showed that the deceased sustained the injury on his chest, the witnesses evidence is that the injury was on the stomach and that the cause of death was the unsuccessful surgery and the poor attention given to the deceased after the surgery.

?On the alleged wrongful rejection of the two documents and their contents being different from the evidence of the prosecuting witnesses, it is astonishing and ironical that the defence who objected at the Lower Court albeit, through a different concunsal, is now, with the other side of his mouth arguing that the documents were wrongfully rejected by the learned trial Judge. A party cannot blow cold and hot or aprobate and reprobate but must be consistent in prosecuting his case. He cannot be heard to blame the Judge for sustaining the objection which they raised at the Lower Court. It is

legally wrong and I would say morally too, that a party who sought to take advantage of an objection to admissibility of a document would turn around, after losing the case, to contend that the Judge wrongly rejected the document. In A.G. Rivers State v. A.G. Akwa lbom State (2011) LPELR, – 633 (SC), the Supreme held that a party cannot rely or take advantage of the contents of a document and at the same time turn around to question the legality of the same document. In the same vein, the Appellant who objected to the admissibility of the document at the Lower cannot come here on appeal to contend that the document was wrongly rejected.

Equally, none of the parties can make any reference to the contents of the two documents tendered but rejected not being Exhibits before the Court, OPARAJI V. OHANU (1999) 6 SC (Pt. 1) 41, OGUNTAYO V. ADELAJA (2009). I therefore discountenance the Appellant’s argument that the contents of the documents are different from the evidence of the prosecution witness.

On the contention that the unsuccessful surgery, poor attendance of the deceased after the surgery and the absence of the post-mortem examination report raises

doubt as to the cause of death, the undisputed fact as rightly found by the learned trial Judge is that it was the injury inflicted on the deceased by the Appellant that started the chain of actions that followed. The hitting of the deceased by the Appellant caused the injury which necessitated the operation carried out for the purpose of saving the life of the deceased. The proximate cause of the surgery was the injury inflicted by the Appellant from which the deceased never recovered but died therefrom. Had the Appellant not inflicted the injury on the deceased there would have been no cause to operate on the deceased.

By the principle of causation, an event is caused by the act proximate to it and in the absence of which the event would not have happened. In a charge of culpable homicide, the important consideration for determining responsibility is whether death of the deceased was caused by the injuries he sustained through the act of the accused and not whether from the medical point of view death was caused by the injuries. See R v. EFFANG (1969) 1 ALL NLR 339 considered, in Uyo v. A. BENDEL STATE (1986) 1 NWLR (Pt. 17) 418.

Medical evidence though desirable to determine the cause of death is not essential in all cases of culpable homicide. The presence or absence of medical evidence would not vitiate a criminal trial, as the Court is entitled to examine the evidence and draw the necessary inference. In other words, in the absence of a medical report, a trial Court can still infer the cause of death provided there is clear and sufficient evidence that death of the deceased is the direct result of the unlawful act of the accused person to the exclusion of all other reasonable possible causes. See ALI V STATE (supra) at 1342; OSUAGWU V STATE (2013) 5 NWLR (Pt. 1347) 360 at 390; OBI v. STATE (2013) 5 NWLR (Pt. 1346) 68 at 85. In OGBU & ANOR V. STATE (2007) LPELR ? 2289 (SC) the Court further held that where there are facts which sufficiently show the cause of death to the satisfaction of the Court, the medical report ceases to be of any practiced or legal necessity.
?Thus where the victim dies and the evidence leaves no doubt as to the manner of the cause of death, as in this instant appeal, medical report may be dispensed with ONYIA v. STATE (2006) 11 NWLR (pt. 991) 267 and HARUNA V. STATE

(2010) LPELR – 1233 (CA). I therefore hold that in the circumstances of the instant appeal, medical report was not necessary to determine that the cause of death of the deceased was the injury inflicted on him by the Appellant. The learned trial Judge was therefore right in his conclusion.

It was also contended that the contents of Exhibits A1 is seriously in conflict with human reasoning and is not normal for lacking in any motive. It is not the Law that absence of any motive for the commission of a crime is sufficient ground on which to infer mania – see OKUNNU v. STATE (1977) 3 SC (Reprint) 97. Moreover in this case at hand, the motive for the commission of the crime was explicitly provided in the evidence of the Appellant as DW1 wherein the Appellant stated that when the deceased was arrested by the NDLEA he told the officers of the NDLEA that it was the Appellant who sent him, and the people went to sympathize with the Appellant?s mother. After the deceased’s release by the NDLEA’ the deceased saw the Appellant but the Appellant said he had nothing with him.

?The evidence of DWI, the ward head also shed more light on the problem between

the deceased and the Appellant which was reported to him and he tried to resolve.
DW1 stated inter alia:-
“The accused reported to me that the deceased should stop disturbing him because he wanted to cause him trouble. He came back again and told me that he did not stop…….. After 14 days I was told that Suleiman was taken to hospital and he died there….”

The combined evidence of DW1 and DW2 does not only establish the motive for killing the deceased and how the motive was executed and the weapon used, but also the evidence is very much in tandem with the confessional statement.

?Putting it in clear terms, it is because the deceased mentioned the name of the Appellant to the officers of the NDLEA when caught with Indian hemp as the person who sent him, that the Appellant later reported to their Ward head (DW1) to warn the deceased, and when the deceased defied the admonition of the ward head, the Appellant planned the dastardly act by hiding a hoe inside his trouser, hunted the deceased unprovoked, hit the deceased with the weapon from which he felled, the deceased suffered persistent pains and despite medication died in consequence of

the injury. It is my view that not only do the evidence of PW1 and PW3 support the confession, but also the evidence of the Appellant and that of his witness, DW1. I also hold that, in the circumstances of this case the non production in evidence of the weapon used is not a sine qua non to a conviction and is therefore not fatal to the case of the prosecution. See OYIA V STATE (2006) 11 NWLR (Pt. 991) 267; ABIODUN V STATE (2013) 9 NWLR (Pt.1358) 138 at 151.

The aforestated evidence offered by the prosecution witnesses as analyzed in this Judgment heavily corroborate the confessional statement of the Appellant that it was the Appellant who on Thursday the 19/04/2012 chased the deceased, inflicted injury on the deceased with the hoe handle which he took from his house and hid inside his pocket. The deceased who sustained injury, was seriously in pain, taken to the hospital and operated upon on Friday but died on Monday.

?Proof beyond reasonable doubt simply means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence; with a degree of compulsion which is consistent with a high degree of probability. It does

not mean proof beyond all shadow of doubt nor to the hilt. OSENI v. STATE (2012) ALL FWLR (Pt. 619) 1010, UCHE V. STATE (2015) ALL FWLR (Pt. 796) 431, 446 E-G. A reasonable doubt (not shadow of doubt) which would justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is a doubt which a reasonable man might entertain and which is distinction from fanciful or imaginary doubt. In other words, it is one which would cause a prudent and ordinary person to be cautious and hesitate before acting in matters of importance. See UCHE V. STATE (Supra).

In the instant case, the prosecution proved the guilt of the Appellant beyond reasonable doubt as found by the Lower Court and the Appellant has not shown any reason why this Court should temper with that finding of guilt properly made by the Lower Court.

Resultantly, there is no merit in this appeal as the issue is resolved against the Appellant.

The Judgment of the Lower Court delivered on 31/03/2014 as well as the conviction and sentence of death passed on the Appellant are hereby affirmed. Appeal is dismissed.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity

of reading the judgment of my learned brother, AMINA AUDI WAMBAI JCA before it was delivered. I agree with the reasoning and conclusion of my learned brother. The appeal is lacking in merit and I dismiss it. I abide by the consequential orders.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of reading in draft the lead judgment just delivered by my learned brother, AMINA AUDI WAMBAI’ J.C.A. I am in full agreement with the reasonings and the decision arrived at dismissing the appeal for being unmeritorious. However , for emphasis, let me adumbrate few points. In the determination of whether to attach any weight to the statement made by an accused person which has been retracted or not, the Courts, through a litany of decisions have laid down the tests to be applied or followed. For instance, in the case of Dawa v. State (1980) 8-11 SC page 236 at 267; Obaseki, JSC (of blessed memory) had this to say on pages 267-268:
“On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. v. Sykes (1913) 8 Cr. App. R.233 and approved by the West African Court of

Appeal in Kanu V. The King (1952/55) 14 WACA 30 and I regard them as sound and golden. The questions a judge must ask himself are:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the Prisoner one who had the opportunity of committing the murder?
(5) Is his confession Possible?
(6) Is it consistent with other facts which have been ascertained and have been proved?
If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.
Since Kanu v. The King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided . it satisfies the 6 tests

enumerated above. Among the long line of authorities may be mentioned: (1)The Queen v. Obiasa (1962) 1 All NLR (2) Edet Obosi v. The State (1965) NMLR 119 (3) Paul Onochie & 7 Ors. V. The Republic (1966) NMLR 307 (4) Obue v. The State (1976) 2 SC 141 (5) Jimoh Yesufu v. The state (1976) 6 SC 167 (6) Ebhomien & ors v. The Queen (1963) 1 All NR 365.”

Exhibits “A” and ?A1″, the statement of the appellant as found by the lower Court passed or satisfied all the requirements enumerated supra. The learned trial Judge was perfectly right when he relied on Exhibit ?A” ?A1? in finding the appellant of having committed the offence of culpable homicide under Section 221 of the Penal Code of Katsina State, and convicted him accordingly.

As to whether the prosecution did prove the commission of the offence with which he was charged, having regard to the totality of the evidence adduced before the lower Court, I agree with the learned trial Judge that, apart from the Exhibit ?A” and “A1?, there are cogent and credible evidence proving the commission of the offences as required by Section 135(2) of the Evidence Act, that is

beyond reasonable doubt. For, as enumerated in the case of Lor & ors v. The State (1980) 8-11 SC P. 81 @ 99, wherein Nnamani JSC (of blessed memory), dealing with same issue said:
?The Basic necessity before a verdict of guilty in a criminal charge can be pronounced is that the jury are satisfied of the guilt of the accused beyond reasonable doubt. Proof beyond reasonable doubt as Denning J (as he then was) stated in Miller v. Minister of Pensions (1947)2 All E.R.372, 373.
Does not mean proof the shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a 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?.
Not long ago, Mohammed, JSC, reemphasize what proof beyond reasonable in proving the commission of an offence entails. His lordship in the case of Afolalu v. State (2010) All FWLR (Pt. 588) P. 812 said:

?The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138(1) of the Evidence Act. Therefore, if on the entire evidence adduced before a trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused will be upheld even if it is on the credible evidence of a single witness…… On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of doubt resulting in the discharge and acquittal.”

It is for the foregoing, and the fuller reasons ably marshalled by my learned brother, WAMBAI, J.C.A that I, too, hereby dismiss the appeal and in the result, affirm the judgment of the lower Court delivered on the 31st of March, 2014, including the conviction and sentencing.

Appearances

M. S. Katu with him, Solomon UtuoghaFor Appellant

AND

Hassan Yusuf, DCL, MOJ Katsina StateFor Respondent