MUSA MAMMAN v. THE STATE (2015)

MUSA MAMMAN v. THE STATE

(2015)LCN/7929(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 1st day of July, 2015

CA/K/563/C/2014

RATIO

APPEAL: APPEAL AGAINST THE JUDGEMENT OF A TRIAL COURT IN A CRIMINAL MATTER; THE QUESTIONS THE JUDGEMENT OF A TRIAL COURT IN A CRIMINAL MATTER IN AN APPEAL MUST ANSWER FOR IT TO BE DISMISSED

Now, it is trite law that an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment answers the following questions positively:
(i) did the prosecution prove the essential elements of the offence;
(ii) was the case proved beyond reasonable doubt; and
(iii) was the evaluation of the evidence of the prosecution and defence witnesses properly done – Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: ONUS/BURDEN OF PROOF; WHETHER THE ONUS ON THE PROSECUTION TO PROOF HIS CASE IN A CRIMINAL CASE SHIFTS AND THE IMPLICATION OF THE FAILURE OF THE PLAINTIFF TO PROVE HIS CASE

The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Obi Vs State (2013) 5 NWLR (Pt.1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt. 1391) 298. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: PROOF BEYOND REASONABLE DOUBT; WHETHER PROOF BEYOND REASONABLE DOUBT MEANS PROOF BEYOND THE SHADOW OF DOUBT

It must, however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke Vs State (2013) 16 NWLR (Pt 1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt.1395) 568. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt.
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as 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 will suffice.” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CRIMINAL LAW: CHARGE OF MURDER; WHETHER THE CAUSE OF DEATH MUST BE ESTABLISHED BEYOND REASONABLE DOUBT TO PROVE THE INGREDIENT THAT IT WAS THE ACT OF THE APPELLANT THAT CAUSED THE DEATH OF THE DECEASED
On the second ingredient of the offence of whether it was the act of the Appellant that caused the death of the deceased person, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant – Udosen Vs State (2007) 4 NWLR (Pt 1023) 125, Oche Vs State (2007) 5 NWLR (Pt 1027) 214, Ekpoisong Vs State (2009) 1 NWLR (Pt1122) 354, Iliyasu Vs State (2014) 15 NWLR (Pt 1430) 245. This point was made a long time ago by the Supreme Court in the case of Lori Vs State (1980) 8-11 SC 81 at 95-96 where Nnamani, JSC said:
“In a charge of murder, the cause of death must be established unequivocally and the burden rests on the prosecution to establish this and if they fail the accused must be discharged … It is also settled law that the death of the victim must be caused by the accused or put differently, it must be shown that the deceased died as a result of the act of the accused.”
The point was reiterated by the Supreme Court in Oforlete Vs State (2000) 12 NWLR (Pt 631) 415 thus: “In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: WAYS IN WHICH THE PROSECUTION MAY PROVE THE GUILT OF THE DEFENDANT

Now, it is settled law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes – Emeka Vs State (2001) 14 NWLR (Pt.734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt 1066) 300, Ilodigwe Vs State (2012) 18 NWLR (Pt 1331) 1, Umar Vs State (2014) 13 NWLR (Pt.1425) 497. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: CIRCUMSTANTIAL EVIDENCE; THE CONDITIONS THAT MUST BE MET FOR CIRCUMSTANTIAL EVIDENCE TO SUSTAIN CONVICTION
It is trite law that before a defendant can be convicted for culpable homicide or murder on circumstantial evidence, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than murder can the facts be accounted for. A conviction for culpable homicide or murder on circumstantial evidence must point to the guilt of a defendant with the accuracy of mathematics. A Court cannot convict on circumstantial evidence, especially in a case of murder or culpable homicide where such evidence points in more than one direction ? Osuoha Vs State (2010) 16 NWLR (Pt.1219) 364 and Maigari Vs State (2010) 16 NWLR (Pt.1220) 439.
In other words, for circumstantial evidence to sustain conviction, the following conditions must be met: (i) the evidence must irresistibly and unequivocally lead to the guilt of the defendant; (ii) no other reasonable inference could be drawn from it; and (iii) there must be no co-existing circumstances which could weaken the inference. All the three conditions must exist in the adduced evidence to ground and sustain the conviction of a defendant- Shehu Vs State (2010) 8 NWLR (Pt.1195) 112. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

MUSA MAMMAN Appellant(s)

AND

THE STATE Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): The Appellant was charged before the lower Court under Section 221(b) of the Penal Code with one count of culpable homicide punishable with death and he was alleged to have caused the death of one Danjuma Mamman on or about the 20th day of February, 2006 at Yarbudu Village in Kurfi Local Government Area of Katsina State by stabbing him in the neck with a knife with knowledge that death would be the probable consequence of the act. The Appellant pleaded “Not Guilty” to the charge and the matter went to trial. The Respondent called six witnesses and tendered three exhibits in proof of its case while the Appellant called two witnesses in proof of his defence. At the conclusion of trial and of the final addresses of Counsel, the lower Court found the Appellant guilty on the count of culpable homicide punishable with death and sentenced him to death.

The Appellant was dissatisfied with the judgment and sequel to the order of this Court made on the 19th of November, 2014 granting him an extension of time within which to file a notice of appeal, he caused a notice of

appeal dated the 28th of November, 2014 to be filed against it. The notice of appeal contained six grounds of appeal. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 12th of January, 2015 on the 26th of January, 2015. In response, Counsel to the Respondent filed a brief of arguments dated the 12th of March, 2015.

At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs as their oral submissions in the appeal. From the six grounds of appeal contained in the notice of appeal, Counsel to the Appellant distilled two issues for determination in the appeal. These were:
i. Whether the learned trial Judge was right when he descended into the arena of conflict by cross-examining the Appellant.
ii. Whether the learned trial Judge was right when His Lordship held that the Respondent had proved its case beyond reasonable doubt against the Appellant.

The complaint of the Appellant in the first issue for determination was that one Umaru Mamman, who testified as the second prosecution witness, gave evidence of the killing of

someone and did not mention the name of the person killed and/or the name of the Appellant as the assailant in his evidence in chief and by reason of which Counsel to the Appellant declined the invitation to cross-examine the witness, but that rather than discharge the witness, the learned trial Judge asked questions of the witness and in the course of which the witness supplied the name of the deceased as the person killed and the name of the Appellant as the culprit. The Appellant further complained that the learned trial Judge also asked questions of the Appellant in further cross-examination. Counsel to the Appellant stated that by these actions, the learned trial Judge descended into the arena of conflict by taking over the prosecution of the Appellant and thereby denied the Appellant a fair trial and he referred to the case of Okoduwa Vs State (1988) NWLR (Pt 76) 333 and he made quotations there from spanning over four pages of the brief of arguments.

?Counsel stated that where a trial Judge decides to cross-examine a prosecution witness on issues which the witness did not give any evidence on or which the defence Counsel did not cross-examine upon,

the questions of the trial Judge will amount to a violation of the right of the accused person and he referred to the cases Olowu Vs The Nigerian Navy (2011) 18 NWLR (Pt.1279) 659, Okapo vs Sunmorui (1987) 2 NWLR (Pt 58) 587 and Akana Vs Silver Edge Shipping Agencies (1987) 4 NWLR (Pt 63) 472. Counsel stated that, in the instant case, apart from the answers given by the second prosecution witness to the questions asked by the learned trial Judge and in the course of which he mentioned the name of the Appellant as the assailant, there was no other evidence linking the Appellant with the commission of the offence and that the action of the learned trial Judge thus tilted the scale of justice against the Appellant and this is fatal to the proceedings. Counsel urged this Court to resolve the first issue for determination in favour of the Appellant.

On the second issue for determination, Counsel prefaced his arguments with the provision of Section 36 (5) of the 1999 Constitution that every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty and stated that the necessary consequence of the provision is that the

burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and he referred to the provisions of Section 139 of the Evidence Act and the cases of Okoro Vs State (1988) NWLR (Pt.94) 255, Nabi Vs State (1993) 7 NWLR (Pt 307) 511 and Solola Vs State (2005) 5 SC (Pt 1) 135 amongst others. Counsel emphasized that the offence of culpable homicide punishable with death is a capital offence which requires a high degree of proof and he referred to the case of Ikem Vs State (1985) 1 NWLR (Pt.2) 378.

Counsel reiterated the three elements necessary for the prosecution to prove conjunctively beyond reasonable doubt to sustain a charge of murder as stated by the Supreme Court in the case of Abogede Vs The State (1996) 6 NWLR (pt 448) 270 and stated that while it was not in contest in the instant case that the deceased is dead, as confirmed by the medical report, Exhibit 1, there was no cogent or reliable evidence showing that it was the act or omission of the Appellant that caused the death of the deceased.

?Counsel stated that the only reason given by the lower Court for convicting the Appellant was that the knife found at

the scene of crime, Exhibit 2, was alleged to belong to him and that meanwhile the Appellant led unchallenged evidence that the knife belonged to the deceased.

Counsel stated that it was on record that the Appellant made an alleged voluntary confessional statement at the Kurfi Divisional police Station, but that the Respondent failed to tender same at the trial and that this raised the presumption of withholding evidence and that the lower Court ought to have invoked the provisions of Section 167 (d) of the Evidence Act to hold that if the statement had been tendered it would have been favourable to the Appellant, and against the Respondent, and would have created doubt in the mind of the Court and he referred to the cases of Mandilas Vs Karaberis (1958) SCNLR 335, Adeyemi Vs Commissioner of Police (1961) All NLR 387 and Abudu Vs State (1985) 1 NWLR (Pt 1) 55. Counsel stated that the whole case centered around the use of the knife found at the scene, Exhibit 2, and that this would have been resolved by the conduct of fingerprint analysis on the knife to determine whose fingerprint impression was thereon and that failure of the Police to conduct the fingerprint

analysis created an irreconcilable doubt in the case of the Respondent which should have been resolved in favour of the Appellant and he referred to the cases of COP Vs Donatus Ude (2012) All FWLR (Pt 642) 1691, and Okoh Vs The State (2009) All FWLR (Pt 453) 358. Counsel stated that before pinning the use of the knife, Exhibit 2, on the Appellant, the Police ought to have examined the fingerprints of the Appellant and compared same with the fingerprint impressions on the knife, even before arraigning the Appellant in Court because by Regulation 13 of the Nigeria Police Regulations the Police had a duty to take the fingerprints of every person in their custody before arraigning them in Court. Counsel stated that it was established law that where there is an iota of doubt in a criminal trial, such doubt should be resolved in favour of the accused person and he relied on the case of State Vs Azeez (2008) 35 NSCQR 426, amongst others.

Counsel stated that from the evidence of the prosecution witnesses, the entire case of the Respondent was predicated on an alleged dispute over a parcel of land belonging to the sister of the Appellant, but which was in

possession of the Appellant and the threat made by the Appellant that he would deal with anyone who bought the land, as he intended to buy same. Counsel stated that the deceased was the brother of the Appellant and there was no evidence of any animosity between them over the said parcel of land and that the finding of the lower Court that because of the threat of the Appellant that he would deal with anyone who bought the land, then it could be that he was the one that killed the deceased was based on suspicion and should thus not stand and he referred to the case of Ogundele Vs Agiri (2009) 18 NWLR (Pt 1173) 219. Counsel stated that the lower Court also relied on Exhibit 3, a light blue jumper stained with blood, which the Respondent said was recovered from the room of the Appellant, a fact which the Appellant denied, in finding the Appellant guilty Counsel stated that the Appellant gave unchallenged evidence that he was one of those that entered the room of the deceased and saw him in a pool of blood and who carried his body outside and into the police vehicle on the day of the incident and that he had been in detention from the date of the murder and that

it was incumbent on the Respondent, in the circumstances, to prove how it recovered Exhibit 3 and the failure of the Respondent to do so created a doubt in its case against the Appellant.

Counsel stated that the Respondent did not lead any evidence directly linking the Appellant with the killing of the deceased and that this much was acknowledged by the lower Court in the judgment and that all that the lower Court relied on in convicting the Appellant was circumstantial evidence. Counsel stated that the circumstantial evidence before the lower Court was not cogent enough to ground conviction and that it is the law that circumstantial evidence to ground conviction must be cogent, conclusive and strong leaving no room for any other explanation except the accused person’s guilt and he referred to the case of Nweke Vs State (2001) 4 NWLR (Pt.704) 588. Counsel urged this Court to resolve the second issue for determination in favour of the Appellant.

Counsel concluded by urging this Court to set aside the conviction and sentence of the Appellant as contained in the judgment of the lower Court, and to discharge and acquit him accordingly.

?Counsel to

the Respondent adopted the two issues for determination formulated by Counsel to the Appellant. In arguing the first issue for determination, Counsel conceded that the learned trial Judge did ask questions from the second prosecution witness and from the Appellant, but stated that the questions asked were merely to clarify portions of the evidence of the witnesses that were obscure and needed further elucidation and that the learned trial Judge was allowed by law to do so and he referred to the provisions of Section 246 (1) of the Evidence Act and Sections 237 (2) and (4) of the Criminal Procedure Code. Counsel stated that the questions asked by the learned trial Judge were within the scope of the law and he sought to distinguish the facts and circumstances of this case from what transpired in the case of Okoduwa Vs State supra relied on by the Counsel to the Appellant and to say that the decision in that case was inapplicable to the present case.
?
On the second issue for determination, Counsel conceded that the burden of proof of the guilt of an accused person was on the prosecution and that the standard of proof required was proof beyond reasonable

doubt, but stated that proof beyond reasonable doubt did not mean proof beyond all shadow of doubt and that what was required was for the prosecution to establish 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 and he referred to the cases of Bolanle Vs State (2009) 18 NWLR (Pt 1172) 1 and Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360. Counsel stated that the reference made by Counsel to the Appellant about an alleged confessional statement which was not tendered was ill-intentioned and the submission made thereon was self serving because the Investigating Police Officer who testified as the fourth prosecution witness did not testify that the Appellant made a confessional statement which was reduced into writing and that the Appellant denied making any statement in his oral testimony before the lower Court and that the issue of withholding evidence did not arise.

The argument of Counsel on Exhibit 2, the blood-stained knife found at the scene of the crime, was ambiguous but he stated that the failure of the Police to conduct a fingerprint analysis on

the knife to determine the ownership and use was not a serious omission because fingerprint was just one of the means of identification of the perpetuator of a crime, and that once other means are resorted to, the omission will not be fatal to the case of the Respondent. Counsel stated that the dispute over the land in question was between the Appellant and the deceased, who lent the Appellant the money he used to pay rent for the land, and that the threat of the Appellant that he would kill anyone who did not stay away from the farm land was directed at the deceased. Counsel stated that the fourth prosecution witness gave evidence of how he recovered Exhibit 3, the blood stained jumper, from the room of the Appellant in the presence of the Appellant and that the Appellant did not object to the admission of both Exhibits 2 and 3 and that having failed to object to the admissibility of the exhibits in the Court below, the Appellant cannot do so in this appeal and he referred to the case of Shurumo Vs State (2010) 19 NWLR (Pt 1226) 73.

?Counsel stated that there was no doubt created in the mind of the lower Court by the case of the Respondent and he

mentioned the different ways of proving the guilt of an accused person and referred to the case of Patrick Vs State (2013) 18 NWLR (Pt 1385) 163.

Counsel stated that in the present case the Respondent relied on proof by circumstantial evidence and led evidence to prove (i) the existence of Exhibit 2, the knife belonging to the Appellant, tendered and admitted in evidence without objection; (ii) the presence of Exhibit 3, the cloth of the Appellant, stained with blood and which was recovered by the Police from residence of the Appellant and which was tendered and admitted in evidence without objection; (iii) the testimonies of the second and third prosecution witnesses on the dispute that existed between the Appellant and the deceased over the land in question; (iv) the inability of the Appellant to refund to the deceased the loan of N1,000.00 taken to pay the rent for the land and the threat to kill anybody who did not stay awry from the land in question; (v) the deceased was killed shortly after the Appellant made the threat and it was only the deceased that had an interest in the land in view of the loan he gave to the Appellant. Counsel stated that all

these pieces of evidence pointed to no other person as the killer of the deceased but the Appellant. Counsel stated that the lower Court evaluated the totality of the evidence led by the parties before finding the evidence led by the Respondent as credible, positive and compelling in proving the guilt of the Appellant and that the attitude of the appellate Court to such finding of trial Court is to confirm same and he referred to the case of Anyegwu Vs Onuche (2009) 3 NWLR (Pt 1129) 659.

Counsel urged this Court to resolve the two issues for determination in favour of the Respondent and to dismiss the appeal as lacking in merit and to uphold and affirm the conviction of and the sentence passed on the Appellant by the lower Court.

Now, it is trite law that an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment answers the following questions positively:
(i) did the prosecution prove the essential elements of the offence;
(ii) was the case proved beyond reasonable doubt; and
?(iii) was the evaluation of the evidence of the prosecution and defence witnesses properly done – Osuagwu Vs State (2013) 5 NWLR

(Pt 1347) 360. In this wise, it is the view of this Court that there is only one issue for determination in this appeal and this is:
Whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offence of culpable homicide punishable with death against the Appellant beyond reasonable doubt?
?
The Appellant was charged for culpable homicide punishable with death and he was alleged to have killed one Danjuma Mamman by stabbing him in the neck with a knife. It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests

squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Obi Vs State (2013) 5 NWLR (Pt.1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt. 1391) 298.

Vs Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt.
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as 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 will suffice.”

On the first ingredient of the offence of culpable homicide punishable with death, it was not in contest between the parties that the person referred to in the charge against the Appellant as Danjuma Mamman is dead. All the witnesses, both the prosecution and the defence witnesses, testified to the death of the deceased and the Respondent tendered a medical report confirming the death of the deceased as Exhibit 1. Further, the finding of the lower Court on the issue in the judgment has not been appealed against by the Appellant.
?
On the second ingredient of the offence of whether it was the act of the Appellant that caused the

death of the deceased person, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant – Udosen Vs State (2007) 4 NWLR (Pt 1023) 125, Oche Vs State (2007) 5 NWLR (Pt 1027) 214, Ekpoisong Vs State (2009) 1 NWLR (Pt1122) 354, Iliyasu Vs State (2014) 15 NWLR (Pt 1430) 245. This point was made a long time ago by the Supreme Court in the case of Lori Vs State (1980) 8-11 SC 81 at 95-96 where Nnamani, JSC said:
“In a charge of murder, the cause of death must be established unequivocally and the burden rests on the prosecution to establish this and if they fail the accused must be discharged … It is also settled law that the death of the victim must be caused by the accused or put differently, it must be shown that the deceased died as a result of the act of the accused.”
The point was reiterated by the Supreme Court in Oforlete Vs State (2000) 12 NWLR (Pt 631) 415 thus:
“In every case where it is alleged that death has resulted from the act of a person, a causal link between the

death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence”
?
On the cause of death, the third prosecution witness testified that when he went to the room of the deceased, he met the deceased in a pool of his blood with his throat slashed. The fifth prosecution witness stated that she saw blood gushing out of the deceased and discovered that the deceased was slaughtered at the neck. The medical report tendered by the fourth prosecution witness, Exhibit 1, related that the death of the deceased was caused as a result of a deep cut with a sharp object in the outer part of his neck. Counsel to the Appellant did not contest the cause of the death of the deceased in the lower Court and the lower

Court found that the parties were agreed on the cause of death being a deep cut on the neck of the deceased. The Respondent thus led cogent evidence to prove the cause of death.

This takes us to the second limb of the second ingredient of the offence of culpable homicide punishable with death; whether it was the act of the Appellant that caused the death of the deceased. In Osuoha Vs State (2010) 16 NWLR (Pt.1219) 364, the Court of Appeal stated that to sustain a charge of murder, the cause of death must be linked to the act of the accused with certainty and clarity and not on the basis of conjecture, imagination, or loose deduction and it must be proved that the accused knew that his act will result in death or did not care whether death of the deceased will result from his act.

NWLR (Pt.734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt 1066) 300, Ilodigwe Vs State (2012) 18 NWLR (Pt 1331) 1, Umar Vs State (2014) 13 NWLR (Pt.1425) 497.

The Respondent, in the instant case, did not tender a confessional statement of the Appellant and neither did it call eye witness evidence. It relied on circumstantial evidence to prove the guilt of the Appellant. The lower Court, in finding the Appellant guilty, stated in the judgment thus:
“I have also said earlier that in the absence of direct evidence, circumstantial evidence, if proved could be enough to ground a conviction where inferences drawn from the whole history of the case points strongly to the commission of the offence by the accused person. Having gone through the entire proceedings in this case, particularly the evidence so far adduced points strongly to the accused person as the person responsible for the deceased’s person death. There was indeed animosity between the accused person and the deceased arising from the sale of the farmland belonging to the accused person’s sister. Evidence before the Court had proved that the accused person was in possession of the farmland

prior to his sister’s decision and direction to dispose it off. The land was sold off but due to the interest shown by the accused person, the Village Head (PW1) annulled the sale and same was now offered to the accused. He could not however pay for the purchase price. This led to the owner to demand rent for the farmland inspite of the fact that she needed the purchase price to enable her get another land in her new place where she was residing. The accused person was also not able to pay the rent. The deceased person through the assistance of the former buyer loaned the sum of N1,000.00 … to the accused person to enable him pay the rent … There is however no evidence before the Court that the accused person was able to return the loan to the deceased.
Even though both the accused person and his Counsel have shown that they were happy with the loan given to the accused person and had commended the deceased for his overtures, events later in the proceedings had revealed that the accused person was indeed not happy with the development… He was indeed not happy as he felt that the farmland would be taken away from him for his failure to pay back the

loan before the commencement of the rainy season. He consequently threatened to kill anyone who did not stay away from the farmland. The accused person had suspected that by the deceased person giving him a loan to lease the farmland, and even giving him a time limit within which to repay the loan or lose possession, the latter was interested in taking over the farm from the accused person. The deceased therefore became the target of the accused person’s threat and made good his promise by executing the deceased. The accused person thereafter kept himself away from the scene when the entire village community had gathered in the deceased person’s house lamenting his death until DW2 wondered why the accused person was not there and therefore decided to go to the accused person’s house to find out why he was not in the deceased person’s house. …
Exhibit 1 had shown that the deceased was cut deep in the outer part of his neck with a sharp object which led to his death. PW2 and PW3 had testified that the accused person had threatened to kill anyone who did not stay away from the farmland which had been in his possession. The same witness had told the Court

how the deceased got involved and the role he played on the disposal or lease of the farmland. Exhibit 2 is synonymous with the sharp object used and the testimony of PW4 had indeed confirmed that it was the knife (Exhibit 2) that was used in killing the deceased.
Exhibit 3 which was soaked in blood and the testimony of PW4 went to show that the exhibit not only belonged to the accused person but was also the cloth the accused person had on him at the time of the deceased’s death…
I find that all the circumstances of this case point strongly to the commission of the offence by the accused person …” (see pages 75 to 79 of the records)

One of the most firmly established principles of adjudication is that a Court of law has no jurisdiction to speculate or make conjectures and it must confine itself to the evidence before it and give judgment on the evidence, and on the evidence alone – Ejezie Vs Anuwu (2008) 12 NWLR (Pt 1101) 466. Courts of law are Courts of facts and law and they decide issues on facts established before them and on the law, and not on speculation or conjectures – Oguonzee Vs State (1998) 7 NWLR (Pt 551) 521, Agip (Nigeria)

Ltd Vs Agip Petroli International (2010) 5 NWLR (Pt 1187) 348.

Reading through the evidence led by the Respondent in the testimonies of the six prosecution witnesses, this Court must say it is at a loss to locate the basis for the bulk of the conclusive statements made by the lower Court in the above reproduced excerpt of the judgment, and upon which it found the Appellant guilty. The lower Court read into the evidence led by some of the witnesses, words that were never uttered by them and it twisted the evidence of the witnesses to suit its own perceptions. For example, the fourth prosecution witness never confirmed in his evidence that the knife, Exhibit 2, was the instrument used to kill the deceased and neither did he state that the bloodied jumper, Exhibit 3, was the cloth the Appellant had on at the time of the deceased’s death. Also, the statement of the lower Court that the Appellant”… had suspected that by the deceased person giving him a loan to lease the farmland, and even giving him a time limit within which to repay the loan or lose possession, the latter was interested in taking over the farm from the accused person” was entirely the

thinking of the Court and was not stated by any of the witnesses.

Counsel to the Respondent pointed out in his brief of arguments the circumstances proved in the testimonies of the six prosecution witnesses. From the reading of the entire testimonies of the witnesses, the established circumstances were:
(i) the existence of Exhibit 2, the blood stained knife which the fourth prosecution witness, the Investigating Police Officer, said he recovered at the scene of crime and which was tendered and admitted in evidence without objection;
(ii) the presence of Exhibit 3, the cloth of the Appellant, stained with blood and which was recovered by the Police from residence of the Appellant and which was tendered and admitted in evidence without objection;
(iii) the testimony of the third prosecution witness that it was the deceased who loaned the Appellant the sum of N1,000.00 to pay the rent for the farmland with an agreement that if the Appellant was able to repay the loan before the commencement of the rainy season, he could take the farm on rent;
(iv) the inability of the Appellant to repay to the deceased the loan of N1,000.00 taken to

pay the rent for the land and the threat to kill anybody who did not stay away from the land in question;
(v) the deceased was killed shortly after the Appellant made the threat.

These were all that could be deduced from the testimonies of the six prosecution witnesses. The question is whether these circumstances constituted sufficient circumstantial evidence on which the lower Court could have grounded the conviction of the Appellant for culpable homicide punishable with death?

?Now, circumstantial evidence is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and/or precision of mathematics. It is not a derogation of evidence to say that it is circumstantial. However, to be sufficient to ground a conviction in a criminal trial, circumstantial evidence must be complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the defendant and no one else did the deed and as such, it is only the defendant and no one else, who should be criminally culpable for the offence alleged or charged. The facts must be

incompatible with the innocence or non-culpability of the defendant and incapable of explanation by any other reasonable hypothesis or consideration than that of his guilt – State Vs Njoku (2010) 1 NWLR (Pt 1175) 243 and Oladotun Vs State (2010) 15 NWLR (Pt.1217) 490.
It is trite law that before a defendant can be convicted for culpable homicide or murder on circumstantial evidence, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than murder can the facts be accounted for. A conviction for culpable homicide or murder on circumstantial evidence must point to the guilt of a defendant with the accuracy of mathematics. A Court cannot convict on circumstantial evidence, especially in a case of murder or culpable homicide where such evidence points in more than one direction ? Osuoha Vs State (2010) 16 NWLR (Pt.1219) 364 and Maigari Vs State (2010) 16 NWLR (Pt.1220) 439.
In other words, for circumstantial evidence to sustain conviction,

the following conditions must be met: (i) the evidence must irresistibly and unequivocally lead to the guilt of the defendant; (ii) no other reasonable inference could be drawn from it; and (iii) there must be no co-existing circumstances which could weaken the inference. All the three conditions must exist in the adduced evidence to ground and sustain the conviction of a defendant- Shehu Vs State (2010) 8 NWLR (Pt.1195) 112.

It is obvious that the proved circumstances in the present case do not meet the required level of circumstantial evidence that can sustain a conviction for culpable homicide punishable with death. There was no direct evidence showing that the blood stain knife found at the scene of the crime, Exhibit 2, was the murder weapon and neither was there any evidence linking the knife to the Appellant. The statement of the lower Court in the judgment that the third prosecution witness testified that the blood stained knife was recovered from the room of the Appellant is incorrect. Both the third prosecution witness and the fourth prosecution witness testified that the knife was recovered by the Police in the room of the deceased. There was

also no evidence showing that the blood stained jumper, Exhibit 3, recovered from the room of the Appellant actually belonged to the Appellant and/or that the blood stains on the jumper were from the deceased. The Police ought to have done a fingerprint analysis of the knife to see if it carried the fingerprints of the Appellant. The Police should also have matched the blood on the knife and on the jumper to that of deceased and the ownership of the jumper to the Appellant through a DNA testing. There was nothing in the circumstances established by the Respondent at trial linking the cause of death of the deceased to the Appellant. It is correct that the second prosecution witness suggested in his answers to the questions asked him by the lower Court that it was the Appellant that killed the deceased. The law, however, is that suggestions of witnesses as who they thought committed an offence is not, and has never been, the determinant of the guilt of an accused person. The Respondent obviously failed to lead credible evidence to prove the second ingredient of the offence of culpable homicide punishable with death.
?
This is one matter that should

never have been charged to Court by the Respondent in view of the quality of evidence available to it without demanding for further investigation and for further evidence from the Police. It is obvious that the case against the Appellant was predicated more on suspicion than on clear facts and the Courts have consistently stated that suspicion alone, no matter how grave, cannot sustain a criminal charge -Idowu Vs State (1998) 11 NWLR (Pt 574) 354, Mbang vs State (2010) 7 NWLR (Pt 1194) 431, Shehu vs State (2010) 8 NWLR (Pt 1195) 112, Rabiu Vs State (2010) 10 NWLR (Pt 1201) 127 and Oladotun Vs State (2010) 15 NWLR (Pt 1217) 490. Perhaps with a little more effort by the Police and the Respondent would have turned the suspicion into concrete facts that could have established the charge against the Appellant. The investigation of this matter was not properly carried out and it is more by reason of lack of capacity on the part of the Investigating Police Officers, than by lack of necessary tools for the job. The trial of this case took place in 2010 and at which time, this Court is aware, that the Nigeria Police had access to facilities both within and outside the

country where fingerprint analysis and DNA testing could be carried out. The Police just did not bother to do the needful. It is hoped that the Police and the office of the Director of Public Prosecution, Katsina State would display L higher level of responsibility and professionalism in future in making decisions on matters to be charged to Court so as to save otherwise innocent citizens from undergoing unnecessary detention and trials.

In conclusion, this Court finds that the Respondent failed to prove its case against the Appellant beyond reasonable doubt. The judgment of the High Court of Katsina State in Charge No KTH /DM/4C/2009 delivered by Honorable Justice I. B. Ahmed on the 28th of November, 2011 convicting and sentencing the Appellant to death for culpable homicide punishable with death cannot thus be sustained and same is hereby set aside. The charge of culpable homicide punishable with death against the Appellant is dismissed and the Appellant is discharged and acquitted. These shall be the orders of the Court.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading the judgment of my learned brother,

Habeeb Adewale Olumuyiwa Abiru JCA before it was delivered. I agree with the reasoning of my learned brother and the conclusion that there is merit in the appeal. I allow the appeal and abide by the consequential orders.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I am in agreement with the judgment just delivered by my learned brother Habeeb Adewale Olumuyiwa Abiru, JCA that the decision of the lower Court sentencing the Appellant to death be set aside.

?The appeal of the Appellant accordingly succeeds and the Appellant is discharged and acquitted.

Appearances:

J. J. Usman with Solomon ApenjaFor Appellant(s)

A. Umar, CSC Ministry of Justice, Katsina StateFor Respondent(s)

Appearances

J. J. Usman with Solomon ApenjaFor Appellant

AND

A. Umar, CSC Ministry of Justice, Katsina StateFor Respondent

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