MUSA v. STATE
(2022)LCN/17167(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Thursday, February 10, 2022
CA/KN/06/C/2020
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
ALHASSAN MUSA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN OF PROOF IN CRIMINAL MATTERS
It is long settled that the burden of proof with respect to criminal offences is on the prosecution, that the prosecution must prove the guilt of the accused beyond reasonable doubt. See Section 135 (1) of the Evidence Act. By proof beyond reasonable doubt, the law insists that every ingredient of the offence with which the accused stands trial must be proved by the prosecution. Failure to prove any of the ingredients would result in the acquittal of the accused person. See OBI VS. THE STATE (2013) 5 NWLR (PT. 346) 68, BABATUNDE VS. THE STATE (2014) 2 NWLR (PT. 1391 298, SABASTINE VS. THE STATE (2020) LPELR 50319 and GAWONI VS. THE STATE (2021) LPELR 55470.
The burden on the prosecution is not beyond every shadow of doubt for absolute certainty is impossible in our criminal jurisprudence except in certain exceptional situations. Once the evidence is so strong against an accused 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 will be said to have been proved beyond reasonable doubt. This can be attained by proof of all the ingredients of an offence. See ISAH VS. THE STATE (2018) 8 NWLR (PT. 1621) 346, EZEANI V. FRN (2019) 12 NWLR (PT 1686) 221 and PHILLIP V. STATE (2019) 13 NWLR (PT 1690) 209.
The prosecution is at liberty to prove its case by calling eye witnesses to the commission of the offence or by circumstantial evidence or by confessional statement made by an accused person. The prosecution can rely on any of the three modes or all of them to prove its case. See ADIO V. STATE (1986) 5 SC 94, ABIRIFON V. STATE (2013) LPELR 20804, GARBA V. FRN (2014) LPELR 24591 and MUSA V. STATE (2014) LPELR 22912. PER LAMIDO, J.C.A.
CONDITIONS TO ESTABLISH THE OFFENCE OF CULPABLE HOMICIDE
Before a conviction for culpable homicide punishable with death can be achieved on circumstantial evidence, the fact of the death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. Where circumstantial evidence points on different or many directions, a Court cannot convict an accused for the offence of murder or culpable homicide. See MAIGARI V. STATE (2010) 16 NWLR (PT 1220) 439 and OSUOHA V. STATE (2010)16 NWLR (PT 1219) 364. PER LAMIDO, J.C.A.
CONDITIONS THAT MUST BE FULFILLED FOR A CONVICTION OF AN ACCUSED PERSON TO BE SUSTAINED
For a conviction of an accused to be sustained, the circumstantial evidence relied upon by the Court to convict must have satisfied the following conditions:-
(i) The evidence must irresistibly and unequivocally lead to the guilt of the accused.
(ii) No other reasonable inference could be drawn from it.
(iii) There must be no co-existing circumstances which could weaken the influence.
All the above conditions must exist in any given case for a conviction of the accused to be sustained. See SHEHU V. STATE (2010) 8 NWLR (PT 1195) 112 and MAMMAN V. STATE (2015) LPELR 5963. PER LAMIDO, J.C.A.
THE POSITION OF LAW ON THE DEFENCE OF ALIBI
The word “alibi” is derived from Latin and it simply means “elsewhere”. In our criminal jurisprudence, when an accused person sets up a defence of alibi, he is in essence saying that he was elsewhere when an offence has been committed or he was not at the scene of the crime at the time of its commission. The defence is based on physical impossibility to place the accused person who was elsewhere at the scene of the crime at the time of the doing of the act constituting the crime. Once it is properly raised by the accused at the investigation stage, the police is duty bound to investigate same. See SANMI V. STATE (2019) 13 NWLR (PT 1690) 554, OPEYEMI V. STATE (2019) 17 NWLR (PT 1702) 403, SALE V. STATE (2020) 1 NWLR (PT 1705) 205 and HARUNA V. KANO STATE (2020) LPELR 50869.
The defence of alibi with its exculpating factor must be timeously raised and the accused must give a detailed explanation of his whereabouts at the relevant time. In EBRE V. STATE (2001) 12 NWLR (PT 728) 617, Achike, JSC held that:-
“We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeking that when properly established it has the far reaching finality of exculpating the accused person from complete criminal responsibility. To take advantage of this defence, the accused person must give a particularization of his whereabouts on the crucial day of the offence which will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any transpired at the said time and place(s). Obviously, such comprehensive information furnished by the accused person must, unquestionably be capable of investigation by the police should they wish to do so. A fair minded Tribunal would have no other option than to exercise its discretion of doubt in favour of the accused person. Furthermore, such defence must be timeously brought to the attention of the police by the accused person, preferably in his extra-judicial statement to afford the police an ample time to carry out its investigation. For the accused person to raise the defence while testifying at his trial is to deliberately deny the prosecution its right and duty to investigate the defence. Such a ploy cannot avail the accused, conversely, where the defence of alibi consists of vague accounts which are simply placed before the Court as mere make believe of plea of that defence, and which are completely devoid of material facts working of investigation, the police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation. In such a situation, the Court would have nothing before it to consider by way of alibi. For example where the accused person in his extra-judicial statement stated that either that he was not in town on that day or that he travelled to a neighbouring town or village and nothing more, no reasonable person would think that a serious plea of alibi has been made out. In other words, a general defence of alibi without sufficient facts to warrant an investigation is clearly porous and vague and cannot avail an accused person.” PER LAMIDO, J.C.A.
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Jigawa State High Court delivered by M.A. Sambo, J. on 31st October, 2013. The Appellant was arraigned before the High Court of Jigawa State on a lone count charge of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code. The charge reads:-
“That you Alhassan Musa (m) on or about 24th day of May, 2011 at about 12:00am at Nabai, Fulani settlement in Babura Local Government Area of Jigawa State within the Jigawa Judicial Division killed your wife by name Nanazabau Musa by using a matchet and cutting her neck and throat as a result she sustained injury and died as a result of the said injury and you thereby committed an offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code of Jigawa State.”
The accused/Appellant pleaded not guilty to the above charge and the prosecution opened its case and called a total number of 7 witnesses and tendered 1 Exhibit. The accused/Appellant opened his defence and called 2 witnesses. At the conclusion of hearing and address of Counsel, the trial Court in a considered judgment found the accused/Appellant guilty as charged and sentenced him to death.
Dissatisfied with his conviction and sentence, the accused/appellant filed a notice of appeal in challenge of same. The said notice of appeal contained 3 grounds of appeal couched thus:-
GROUND ONE
The learned trial judge erred in law when he held thus:-
“Consequently, I am satisfied that the ingredients for the offence of culpable homicide supra have been established against the accused person by the prosecution. I am therefore convinced beyond reasonable doubt that the accused person committed the offence of culpable homicide contrary to Section 221(b) of the Penal Code and punishable under the same section of the law when he caused the death of Nana Zabba’u (his wife) by cutting her neck with a sharp object on the neck on the 24th May, 2011.
PARTICULARS OF ERROR
i. The prosecution had failed to prove the essential ingredients of the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code Law, Cap 107, Laws of Jigawa State.
ii. None of the prosecution witnesses was an eyewitness to the crime.
iii. None of the prosecution witnesses unequivocally linked the Appellant to the commission of the offence.
iv. The evidence of PW2 and PW3 relating to the object allegedly used to inflict injury on the deceased recovered from the Appellant are contradictory and the same was not tendered in evidence.
v. There was no cogent and reliable circumstantial evidence to justify the conviction of the Appellant.
vi. The evidence of PW2 and PW3 are hearsay and inadmissible to establish that the Appellant killed the deceased.
vii. Exhibit A (the Autopsy report on the deceased) did not reveal the type of object that caused the injury on the deceased.
GROUND TWO
The learned trial judge erred in law when he held thus:
“For the foregoing reasons, I am satisfied and I believed that the defence of alibi is not properly raised or established by the accused person for the prosecution to rebut same”.
PARTICULARS OF ERROR
i. The Appellant properly and timeously raised the defence of alibi, which defence was raised upon arrest of the Appellant and at the Police Station.
ii. The evidence of the Appellant that he raised the defence of alibi at the Police Station was not controverted or challenged under cross-examination.
iii. The evidence of PW2, PW3 and DW2 corroborated the Appellant’s alibi.
iv. The police refused to investigate the Appellant’s alibi which was raised at the earliest opportuned time.
GROUND THREE
That the judgment of the learned trial judge is unwarranted, unreasonable and against the weight of evidence.
In compliance with the practice and procedure of this Court, the Appellant filed his brief of argument on 31/08/2020 but it was deemed filed on 22/03/2021. In the said brief, two issues for determination were formulated. The issues are:-
1. Whether from the totality of evidence placed before the trial Court the Respondent proved all the ingredients beyond reasonable doubt for the offence of culpable homicide punishable under Section 221 (b) of the Penal Code of Jigawa State to warrant a conviction and sentence of the Appellant (Distilled from Grounds 1 and 3).
2. Whether the trial Court was right in dismissing the defence of alibi raised by the Appellant (Distilled from Ground 2).
The Respondent’s brief was filed on 08/11/2021 but deemed properly filed on 10/11/2021. The Respondent adopts the two issues for determination formulated by the Appellant.
In arguing issue one, learned Counsel for the Appellant Abdulaziz Ibrahim, Esq., submitted that it is settled that to secure a conviction on a charge of culpable homicide punishable with death, the prosecution must prove the following ingredients:-
(a) That the deceased had died;
(b) That the death of the deceased was caused by the act of the accused; and
(c) The act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
He referred to OGBA VS. THE STATE (1992) 2 NWLR (PT. 224) 164, ORJI VS. THE STATE (2008) 6 MJSC 169 and OGIDI VS. THE STATE (2005) 5 MJSC 155. The charge against the accused must be proved by the prosecution beyond reasonable doubt.
He argued that the prosecution failed to prove that it was the act of the accused that caused the death of the deceased. In other words, there was no evidence linking the cause of death to the Appellant. The evidence of PW1 is hearsay and was not an eyewitness to the commission of the offence. PW1 also stated that he recorded the extra-judicial statement of the Appellant which was not tendered and he urged the Court to invoke the provision of Section 167 (d) of the Evidence Act. He argued that evidence of PW2 and PW3 is also hearsay. He argued that evidence of what a witness was told by other is hearsay and inadmissible. He referred to UBANI VS. THE STATE (2003) 18 NWLR (PT. 851) 224 and OZUDE VS. IGP (1965) 1 ALL NLR 102.
He also submitted that the evidence of PW4, PW5, PW6 and PW7 did not link the Appellant with the death of the deceased. PW4 who is a minor testified that she knows nothing about the incident and was not around when it happened, PW5 testified that he was home when he was informed of what happened and before he could reach the scene everything was over. PW6 on the other hand testified that he was sleeping when he heard the deceased screaming. He did not say it was the Appellant who inflicted the injury that caused the death of the deceased. PW7 who is a Police officer only took the Appellant’s statement at the State C.I.D. Dutse. All these witnesses did not link the cause of death of the deceased to the Appellant and the trial Court ought to have discharged him.
He argued that in the absence of direct evidence linking the Appellant with the death of the deceased, the Respondent resorted to circumstantial evidence which is not cogent and reliable to warrant the conviction of the Appellant.
It is a settled law that circumstantial evidence must be so compelling that in the circumstances of the case, it could be inferred that no other person caused the death of the deceased save the accused. Thus, circumstantial evidence must unequivocally point to an act of the Appellant. Its nature must be indisputable, cogent, positive, irresistible and conclusively point to no other person but the accused. He referred to LORI & ANOR VS. THE STATE (1980) 8 – 10 SC 81, JUA VS. THE STATE (2010) ALL FWLR (PT. 521) 1427, UDOEBRE & ORS. VS. THE STATE (2001) ALL FWLR (PT. 59) 1244 and IGBIKIS VS. THE STATE (2017) ALL FWLR (PT. 883) 1405. The evidence adduced by the Respondent at the trial did not suggest the guilt of the Appellant as the circumstantial evidence was not so strong or cogent enough to suggest that the Appellant killed the deceased. The circumstantial evidence only amount to suspicion and no amount of it can sustain a conviction for homicide. He referred to ZUBAIRU VS. THE STATE (2015) ALL FWLR (PT. 794) 178, ALMUSTAPHA VS. THE STATE (2013) 17 NWLR (PT. 1383 350, IKOMI VS. THE STATE (1986) 3 NWLR (PT. 28) 340 and EZE VS. THE STATE (1976) 1 SC 125.
He submitted that it is a settled rule that where a circumstantial evidence is susceptible to two equally possible inferences, the Court should accept that inference which goes in favour of the accused. He referred to AHMED VS. NIGERIAN ARMY (2017) ALL FWLR (PT. 869) 813. Thus, the Appellant’s testimony that he ran away because he thought that it was armed robbers which evidence was not controverted by the Respondent, and the inference that he ran away because of fear of being arrested are two diametrical hypothesis that ought to be resolved in favour of the Appellant. Therefore, the second ingredient of the offence was not established. He referred to TEGWONOR VS. THE STATE (2008) ALL FWLR (PT. 424) 1484.
On issue two, he submitted the law is settled that a Court is bound to consider all the defences raised by an accused person. He referred to NWANKWOALA VS. THE STATE (2006) ALL FWLR (PT. 339) 801. That where an accused set up the defence of alibi and gives some facts and circumstances of his whereabouts, the prosecution is duty bound to investigate the alibi set up to verify the truthfulness or otherwise of the alibi. He referred to AYAN VS. THE STATE (2014) ALL FWLR (PT. 740) 1409. The Appellant having informed the Police that he was not at home when the incident happened, it is their duty to investigate the alibi. The said evidence was corroborated by the evidence of DW2. The Appellant has a duty to establish his defence of alibi and that he did through DW2. He referred to OSUAGWU VS. THE STATE (2013) 1 SCNJ 33 and OFORLETE VS. THE STATE (2000) 7 SCNJ 162. Failure of the Police to investigate the defence of alibi set up by the Appellant ought to make the Court resolve the defence in favour of the Appellant and allow the appeal.
In arguing issue, learned Counsel for the Respondent, Mustapha B. Adamu, Esq., submitted that it is the duty of the prosecution to prove the charge against the Appellant beyond reasonable doubt and in a charge of culpable homicide punishable with death, the prosecution must prove that (i) the deceased died, (ii) that the death of the deceased was as a result of the act or omission of the accused and (iii) that the act or omission of the accused which caused the death of the deceased was done intentionally or carried out with the knowledge that grievous bodily harm was its probable consequence. He referred to MUSA VS. THE STATE (2009) 15 NWLR (PT. 1165) 467.
He argued that the first ingredient of the offence is not an issue as the prosecution was able to prove the death of one Nana Zaba’u Musa. The contention and argument of the Appellant is that the second ingredient is not proved as these is no evidence linking the death of the deceased to the Appellant. He stated that the prosecution can prove its case by calling eyewitnesses to the commission of the offence, by circumstantial evidence or by a confessional statement made by an accused person. He referred to EMEKA VS. THE STATE (2001) 14 NWLR (PT. 734) 666.
He argued that the trial Court convicted the Appellant through circumstantial evidence which is considered as the best evidence in establishing a case of murder. He referred to MUHAMMED & ANOR VS. THE STATE (2007) LPELR 1894 and ADDO VS. THE STATE (2020) LPELR 55521. The Court is entitled to, where direct evidence of an eye witness is not available, the Court may infer from facts proved the existence of other facts that may logically tend to prove the guilt of the accused and from the judgment of the trial Court at PP. 96 – 98 of the record of appeal, its finding of fact was in line with the evidence of witnesses and other evidence before it.
He also argued that from the evidence of DW1 (the Appellant), it seems that he was the last person seen with the deceased before her death and he is bound to give an explanation as to the cause of the death of his deceased wife. He referred to DATTI VS. THE STATE (2021) LPELR 55173. Having been the last person seen with his wife when she was hale and hearty, it follows therefore that there is an irresistible conclusion that the Appellant killed her.
On issue two, he submitted that the burden of proving a particular fact rests on the party who asserts that fact. He referred to Section 139(1) and (2) of the Evidence Act. Thus, the burden of establishing any defence lies on the Appellant. He referred to YARO VS. THE STATE (2007) 18 NWLR (PT. 1066) 215. He also stated that at the trial, the Appellant as DW1 testified that he went to Danuyawo village for a festival and was there when his wife died. The defence of alibi set up by the Appellant must be raised at the earliest opportunity and not during trial. He referred to NDIDI VS. THE STATE (2007) 13 NWLR (PT. 1050) 633. It is therefore an afterthought for the Appellant to raise the defence of alibi at his trial. He argued further that the defence of alibi must be precise and specific. He referred to OCHEMAJE VS. THE STATE (2008) 15 NWLR (PT. 1109) 57. In the case at hand, the Appellant failed to disclose facts which will support his alibi by not disclosing where he was and who he was with when he went to Danuyawo village for a festival.
On the issue of withholding evidence on failure to tender the extra-judicial statement of the Appellant, he argued that the issue of withholding evidence must be credibly established by making a demand which the prosecution failed to honour. He referred to AUWALU VS. THE STATE (2020) LPELR 50323; AREMU VS. THE STATE (1991) 7 NWLR (PT. 201), BUSARI VS. THE STATE (2015) LPELR 2479, EGWUCHE VS. THE STATE (2018) LPELR 43975, OKERE VS. IGP (2018) LPELR 44178, ROBERT VS. IGP (2018) LPELR 44176, EWUGBA VS. THE STATE (2018) 7 NWLR (PT. 618) 262 and ADEKOYA VS. THE STATE (2010) LPELR 3605. He urge the Court to resolve the two issues against the Appellant and dismiss the appeal.
Now, I have gone through the issues for determination formulated in the Appellant’s brief of argument which issues were adopted by the Respondent, that notwithstanding it is my opinion that a resolution of this appeal can be made through only one issue for determination. The issue is:-
Whether the learned trial judge was right when he convicted and sentenced the Appellant for the offence of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code.
All arguments as contained in both briefs of argument will be subsumed and considered under the above lone issue.
I think it would be pertinent to examine the evidence adduced by the prosecution at the trial. DW1 was PC Shittu Yakubu, a Police Officer. He testified that on 21/05/2011 while on duty at Babura Police Division two persons by name Alhaji Ado Dawai and Ahaji Habu reported that the accused Alhassan Musa residing at Nabai village killed his wife with a cutlass and ran away with the weapon. He also stated that some people have gone after the accused person. They went to the scene of the crime where they met the deceased lying in her pool of blood. They took the deceased to Babura General Hospital where she was confirmed dead and an autopsy was performed. On their return to the Police station, they found that the accused has been arrested. He recorded his statement and the accused confessed that he killed his wife by using a cutlass on her. He gave his reason that his wife usually ask him where he was coming from at night and on that occasion, he told her that he was returning from his parent’s house and she did not believe him. His wife then told him that if he is looking for another wife he should divorce her to which he replied that he cannot withstanding seeing her married to another man and he picked his cutlass and stroke her down.
PW2 was Gwabna Yusuf. He testified that on 21/05/2011, he in company of another went to a ceremony at Daudu Fulani settlement. On their way home, they saw the accused who requested for water to drink and they were only able to get some water at the next village. When they fetch the water they had to assist the Appellant to drink the water. They continued their journey and sighted a vehicle coming their way and the Appellant said they should ran away. PW2 asked what the Appellant has done that if he is on the path of truth he should not run anywhere. But the Appellant fled. When the vehicle stopped the occupants asked PW2 if they had seen a young boy who just killed his wife. They joined the passengers in chasing the Appellant. Eventually, he was arrested and handed over to the Police. PW2 personally disarmed the Appellant and handed over the weapon to the Appellant’s relative. Under cross-examination, he stated that they met the Appellant at Dantuba village and the passengers on that vehicle told them that the Appellant killed his wife.
PW3 was Auwalu Audu. He testified that they were returning to their village after attending a ceremony in another village when they saw the Appellant who asked them for some water to drink. They got some water at another village called Kwandagora and continued their journey. A vehicle drove past them and returned wherein the Appellant advised that they should run but he and his friend refused to run. The Appellant ran away and PW2 picked the machete the Appellant dropped. The passengers on the vehicle asked if they saw a young man and they replied in the positive and told them that he has ran away. They pleaded with PW3 and PW4 to assist them in arresting him and the Appellant was eventually arrested at Rukutu village. They were then taken to Police station where the Appellant was detained. Under cross-examination, he stated that the Appellant was frightened when he saw that vehicle and asked us to run away and he might have his reasons for running away.
PW4 was Maimuna Musa. She testified that she knows the Appellant and she said she talked to the deceased about a boyfriend. She then went out and didn’t know what happened afterwards.
PW5 was Isah Usman. He testified that he was sitting at home when he was informed what happened and before they could reach the scene everything was over, the corpse was taken to the hospital and they were told to go back home and later to return to pick the corpse. They were asked to go to Dutse for further investigation.
PW6 was Musa Yerima. He testified that on 24/05/2011, he was sleeping in his house when he heard the deceased screamed. He didn’t know what happened between the Appellant and the deceased so he rushed to their house and found the deceased lying and groaning as if she was about to die. He held her and asked what happened but she could not speak. When he discovered that she was dead he asked his wife to call a neighbour who upon seeing what happened to the deceased left for Babura town. The village head was informed and he went to the scene together with Police officers who took the corpse to the hospital.
PW7 was Cpl. Nuhu Barnabas, a Police officer. He testified that he recorded the extra-judicial statement of the Appellant in Hausa language and later translated same into English language. The Appellant signed it and he was taken to a superior officer wherein he confirmed to be the maker. He also recovered a cutlass from the Appellant. He tender the statement of the Appellant, cutlass and a wrapper which were all rejected.
Now, on the evidence adduced at the trial Court, the Appellant was found guilty and convicted accordingly. The Appellant’s Counsel argued two main points in this appeal in urging the Court to quash the conviction and set aside the sentence. Firstly, he contended that the conviction of the Appellant based on circumstantial evidence cannot stand as the evidence is not strong and compelling and secondly, he argued that the trial Court ought to have accepted the Appellant’s defence of alibi.
What constitutes culpable homicide has been stated under the Provision of 220 of the Penal code. The section provides that:-
220. Whoever causes death –
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or;
(b) by doing an act with the knowledge that he is likely by such an act to cause death; or
(c) by doing such rash or negligent act, commits the offence of culpable homicide.
From the above, whoever causes death by doing any act with the intention of causing death or bodily injury as is likely to cause death or with knowledge that his act is likely to cause death or by doing such a rash or negligent act commits the offence of culpable homicide.
It must be noted that whether culpable homicide is punishable with death depends on the manner it was committed. The provision of Section 220 of the Penal Code encompasses in its definition both culpable homicide punishable with death and culpable homicide not punishable with death.
The Appellant was charged and convicted under Section 221 (b) of the Penal Code. It provides thus:-
221 Except in the circumstances mentioned in Section 222 culpable homicide shall be punished with death …
a. …
b. if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or any bodily injury which the act was intended to cause.
For the prosecution to secure a conviction under the above Section, the following ingredients must be proved:-
(a) that death of a human being has occurred;
(b) that such death has been caused by the act of the accused;
(c) that the act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act; or that the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.
See ABUBAKAR VS. THE STATE (2017) LPELR 43197, ABDULLAHI VS. THE STATE (2018) LPELR 44455, ISAH VS. THE STATE (2017) LPELR 43472, GALADIMA VS. THE STATE (2017) LPELR 43469 and AHMAD VS. THE STATE (2019) LPELR 47973.
It is long settled that the burden of proof with respect to criminal offences is on the prosecution, that the prosecution must prove the guilt of the accused beyond reasonable doubt. See Section 135 (1) of the Evidence Act. By proof beyond reasonable doubt, the law insists that every ingredient of the offence with which the accused stands trial must be proved by the prosecution. Failure to prove any of the ingredients would result in the acquittal of the accused person. See OBI VS. THE STATE (2013) 5 NWLR (PT. 346) 68, BABATUNDE VS. THE STATE (2014) 2 NWLR (PT. 1391 298, SABASTINE VS. THE STATE (2020) LPELR 50319 and GAWONI VS. THE STATE (2021) LPELR 55470.
The burden on the prosecution is not beyond every shadow of doubt for absolute certainty is impossible in our criminal jurisprudence except in certain exceptional situations. Once the evidence is so strong against an accused 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 will be said to have been proved beyond reasonable doubt. This can be attained by proof of all the ingredients of an offence. See ISAH VS. THE STATE (2018) 8 NWLR (PT. 1621) 346, EZEANI V. FRN (2019) 12 NWLR (PT 1686) 221 and PHILLIP V. STATE (2019) 13 NWLR (PT 1690) 209.
The prosecution is at liberty to prove its case by calling eye witnesses to the commission of the offence or by circumstantial evidence or by confessional statement made by an accused person. The prosecution can rely on any of the three modes or all of them to prove its case. See ADIO V. STATE (1986) 5 SC 94, ABIRIFON V. STATE (2013) LPELR 20804, GARBA V. FRN (2014) LPELR 24591 and MUSA V. STATE (2014) LPELR 22912.
On the first ingredient of the offence, it is in evidence that Nana Zubba’u Musa is dead. The evidence of PW1, PW5 and PW6 have all testified that Nana Zabba’u died. This evidence is not contested even by the Appellant either at the trial and in this Court. The law is well settled that where a piece of evidence was not denied, challenged, discredited or disparaged under cross-examination, the trial Court is entitled to believe and act on it. See OFORLETE V. STATE (2000) 12 NWLR (PT 681) 415 and SULEIMAN V. STATE (2015) LPELR 25726. Thus, the Respondent has proved the first ingredient of the offence of culpable homicide punishable with death.
On the second ingredient of the offence which is whether it was the act of the accused that caused the death of the deceased, the prosecution is saddled with the task of not only proving the cause of death, but that it was the accused that caused it. In OCHIBA VS. STATE (2011) LPELR 8245 AT 33 Adekeye, JSC held that:-
“In every case where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established and proved beyond reasonable doubt. In the course of events, the cause of death must be proved. Where the cause of death is ascertained, the means between the cause of death and the act or omission of the accused alleged to have caused it must be established. These are factual questions to be answered by the consideration of the evidence. In our adversatorial system of criminal justice, the prosecution must prove its case beyond reasonable doubt with vital and relevant evidence it can produce. In the process, it must also produce vital witnesses to testify for the prosecution.”
See OFORLETE V. STATE (SUPRA); UDOSEN V. STATE (2007) 4 NWLR (PT 1023) 125; OCHE V. STATE (2007) 5 NWLR (PT 1027) 214; EKPOISONG V. STATE (2009) 1 NWLR (PT. 1122) 354 and ILIYASU V. STATE (2014) 15 NWLR (PT 1430) 245.
As rightly argued by the Appellant’s Counsel, the evidence against the Appellant is circumstantial as there was no eye witness(s) to the commission of the offence. There is also no confessional statement tendered at the trial. The trial Court is only left with the evidence of prosecution witnesses and a medical report in Exhibit A. The trial Court at P. 96 of the record of appeal held thus:
I have carefully considered the material and relevant evidence of the prosecution tendered through PW2, PW3 and Pw6 as well as Exhibit A (the autopsy report on the victim) and I have found that in the circumstances of the death of the victim (the accused person’s wife) such evidence have irresistibly and unequivocally pointed at the accused person to have killed his wife on 24/05/2011 at about 1:30am that was the time PW6 an immediate neighbour of the victim and her husband discovered the deceased victim injured and in a speechless state in her matrimonial home with no one inside.
Now, circumstantial evidence is evidence of surrounding circumstances which by coincidence is capable of proving a proposition with high level of certainty and the accuracy or precision of mathematics. However, for a circumstantial evidence to ground a conviction in a criminal trial, it must be strong, compelling, cogent and unequivocal. In ANYASODOR V. STATE (2018) LPELR 43720 AT 18, Sanusi, JCA held that:
“… that the nature of circumstantial evidence that a trial Court will consider and act on in order to convict an accused person must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that it was the accused under trial and no other person who was responsible in committing the offence charged.”
The circumstantial evidence must lead to an irresistible conclusion that the accused and no other did the act and as such the accused should be culpable for the offence charged. The facts must be incompatible with the innocence or non-culpability of the accused and incapable of explanation by any reasonable hypothesis other than the guilt of the accused. See NWAEZE V. STATE (1996) 2 NWLR (PT 428)1, AKINMOJU V. STATE (2000) 4 SC (PT1) 64, DURWODE V. STATE (2000) 12 SC (PT1) 1, UBANI V. STATE (2003)4 NWLR (PT 851) 22 and OLADOTUN V. STATE (2010) 15 NWLR (PT 1217) 490.
Before a conviction for culpable homicide punishable with death can be achieved on circumstantial evidence, the fact of the death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. Where circumstantial evidence points on different or many directions, a Court cannot convict an accused for the offence of murder or culpable homicide. See MAIGARI V. STATE (2010) 16 NWLR (PT 1220) 439 and OSUOHA V. STATE (2010)16 NWLR (PT 1219) 364.
For a conviction of an accused to be sustained, the circumstantial evidence relied upon by the Court to convict must have satisfied the following conditions:-
(i) The evidence must irresistibly and unequivocally lead to the guilt of the accused.
(ii) No other reasonable inference could be drawn from it.
(iii) There must be no co-existing circumstances which could weaken the influence.
All the above conditions must exist in any given case for a conviction of the accused to be sustained. See SHEHU V. STATE (2010) 8 NWLR (PT 1195) 112 and MAMMAN V. STATE (2015) LPELR 5963.
Now, the trial Court in its finding from Pp. 96 – 99 of the record of appeal seemed to have accepted the testimony of PW2, PW3, PW6 and also the contents of Exhibit A. PW6 is the Appellant’s neighbour and he stated that on 24/05/2011 at about 1:30am he heard screams coming from the Appellant’s house. He rushed to the house only to find the deceased groaning in a pool of blood. He alerted another neighbour who reported to the village head and the police were invited. The deceased was taken to the hospital. PW6 did not see anybody in the house apart from the deceased. A manhunt was organised to look for the Appellant. Meanwhile PW2 and PW3 who were returning from Daudu Fulani settlement for a ceremony when they met the Appellant at Dantuba village. After exchanging greetings, the Appellant requested for water to drink and both PW2 and PW3 had no water to help him with. They continued their journey and were lucky to find water at kwandagora village. The accused was given water to drink. Then a vehicle went past them and turned. The Appellant according to PW3 became frightened and told them to run away before the vehicle could catch up with them. Then when PW2 notice the Appellant’s behaviour after seeing the vehicle asked him “what have you done” and further told him that “if you are on the path of truth you should not run to any place”. Still, the Appellant took to his heels leaving behind his cutlass which was picked by PW2. The vehicle stopped and one of the passengers asked PW2 and PW3 if they had seen a young man and they replied that he ran away when he sighted their vehicle. The passengers pleaded with them to assist in apprehending the Appellant. They all apprehended the Appellant and handed him over to Police. Meanwhile, the passengers had informed them that they were trailing the Appellant as he was suspected to have killed his wife. The trial Court found that the circumstantial evidence so far is strong and cogent against the Appellant.
The trial Court also considered the weapon found on the Appellant and compare same with the contents of Exhibit A and concluded thus:
“I have found that the matchet found in possession of the accused person which was actually dispossessed from the hands by PW2 is consistent with the revelations about the type of wounds found on the deceased; victim’s neck as disclosed in Exhibit A autopsy report of the victim.”
From the evidence adduced, it can be said that the Appellant fled his house after attacking the deceased, met PW2 and PW3 and requested for water to drink and as they were walking together they got to kwandagora village and found some water. The Appellant could not even drink the water but had to be assisted by PW3 who had to push the water into his mouth. When a vehicle came past them, he became terrified and asked them to run away. They refused and he fled. He was later apprehended with the help of PW2 and PW3 and handed over to the police. Then a matchet was found by PW2 and PW3 in his possession. The medical report revealed that “fresh dead body with a deep cut on the anterior aspect of the neck. The carotid vessel, the trachea and some of the muscles of the neck were cut”. There was evidence of excessive bleeding face severely pale. The cause of death is cardio respiratory interruption. These chain of events unbroken as they appear are enough to establish the cause of death of the deceased to be machete wounds inflected by the Appellant. Circumstantial evidence is as good and sometimes even better than evidence of witnesses. See UYO V. AG BENDEL STATE (1986) LPELR 3452 and MOHAMMED V. STATE (2018) LPELR 44704. The trial Court to my mind is right to hold that the cause of death of the deceased was the machete cut wounds inflected by the Appellants. The respondent has proved the second ingredient of the offence of culpable homicide against the Appellant.
The Appellant relied on the defence of alibi. It was during his evidence in chief, he testified that he was away from his village when the deceased was killed and he told the police who failed to investigate his alibi. The Respondent on the other hand argued that mere setting up of a defence of alibi without particulars is not enough.
The word “alibi” is derived from Latin and it simply means “elsewhere”. In our criminal jurisprudence, when an accused person sets up a defence of alibi, he is in essence saying that he was elsewhere when an offence has been committed or he was not at the scene of the crime at the time of its commission. The defence is based on physical impossibility to place the accused person who was elsewhere at the scene of the crime at the time of the doing of the act constituting the crime. Once it is properly raised by the accused at the investigation stage, the police is duty bound to investigate same. See SANMI V. STATE (2019) 13 NWLR (PT 1690) 554, OPEYEMI V. STATE (2019) 17 NWLR (PT 1702) 403, SALE V. STATE (2020) 1 NWLR (PT 1705) 205 and HARUNA V. KANO STATE (2020) LPELR 50869.
The defence of alibi with its exculpating factor must be timeously raised and the accused must give a detailed explanation of his whereabouts at the relevant time. In EBRE V. STATE (2001) 12 NWLR (PT 728) 617, Achike, JSC held that:-
“We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeking that when properly established it has the far reaching finality of exculpating the accused person from complete criminal responsibility. To take advantage of this defence, the accused person must give a particularization of his whereabouts on the crucial day of the offence which will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any transpired at the said time and place(s). Obviously, such comprehensive information furnished by the accused person must, unquestionably be capable of investigation by the police should they wish to do so. A fair minded Tribunal would have no other option than to exercise its discretion of doubt in favour of the accused person. Furthermore, such defence must be timeously brought to the attention of the police by the accused person, preferably in his extra-judicial statement to afford the police an ample time to carry out its investigation. For the accused person to raise the defence while testifying at his trial is to deliberately deny the prosecution its right and duty to investigate the defence. Such a ploy cannot avail the accused, conversely, where the defence of alibi consists of vague accounts which are simply placed before the Court as mere make believe of plea of that defence, and which are completely devoid of material facts working of investigation, the police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation. In such a situation, the Court would have nothing before it to consider by way of alibi. For example where the accused person in his extra-judicial statement stated that either that he was not in town on that day or that he travelled to a neighbouring town or village and nothing more, no reasonable person would think that a serious plea of alibi has been made out. In other words, a general defence of alibi without sufficient facts to warrant an investigation is clearly porous and vague and cannot avail an accused person.”
The Appellant at the defense stage testified as DW1 and in his evidence, he set up the defence of alibi and further stated that he told the Police. At p. 47 of the record of appeal, he stated thus:-
“I told the Police that I was not at home when the incident that affect my wife occurred. The Police however continue beating me. They beat me because I denied causing injuries to my wife.”
The trial Court held on the defence of alibi, thus:-
“On the defence of alibi raised by the accused person, I found same not sufficiently particularized and therefore unestablished as to require the prosecution to rebut or disprove same… that a defence of alibi must provide sufficient particulars as to the whereabouts of the accused person, who the accused is together with at the time of the commission of the offence which the accuse is charged with. Such defence must not be raised at large as in the instant trial. The accused person only said he left his wife to attend a ceremony at Danuyawo village at 4:00pm. The accused person never revealed the people he was together with while he attended the ceremony. PW2 only informed the Court the accused informed him he is going to attend a ceremony. DW2 never witness or saw the accused person attend the ceremony.”
The above finding of fact is borne out of the evidence adduced. It is to be further noted that apart from non-particularization of the sequence of events in the Appellant’s defence of alibi, the evidence of DW2 which apparently was offered to strengthen the defence of the Appellant remained unhelpful to the cause of the Appellant. The DW2 never testified that he attended the ceremony and saw the accused. Apart from the mere assertion that the Appellant told him he was travelling for a ceremony, there was nothing to the evidence of DW2 and even that assertion cannot in my view be significant enough to strengthen the defence of alibi. Interestingly, two Police officers who were involved in the investigation of the case both at the Divisional level and at the C.I.D. officers testified as PW1 and PW7 respectively. The Appellant’s Counsel however did not deem it fit to cross-examined them on the issue of alibi. This fact alone, suggests that the defence was never raised at the earliest possible time ie during arrest and investigation. By raising it during his defence, it seems this Court is entitle to hold that it is an afterthought. In any event, the trial Court rightly found that even if the Appellant had set up the defence at the earliest opportunity to the Police, he did not particularize his whereabout on that day to give the Police a lead to work on. Thus, the defence of alibi was not properly set up and the trial Court rightly rejected same.
Now on the third ingredient of the offence which is knowledge of the doer of the act that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause. Whether death in this circumstance was the probable or only a likely consequence of an act or of any bodily injury is a question of fact. The law is well settled that a man intends the natural consequences of his action and where it is shown that the accused knew or had reason to know that death would be the probable and not only a likely consequence of his act or of any bodily injury which the act was intended to cause, then the accused must be held culpable. See NWOKEARU VS. THE STATE (2010) 15 NWLR (PT. 1210) 1, NJOKU VS. THE STATE (2013) 2 NWLR (PT. 1339) 548 and AHMAD VS. THE STATE (2019) LPELR 47973.
To prove this last ingredient of the offence, direct oral evidence is a near impossibility. However, the Courts are enjoined to draw inferences from the surrounding circumstances of each case and in so doing the Court will look at the following:-
i. The nature of the weapon used in making the assault;
ii. The weight and size of the weapon used;
iii. The part of the body hit; and
iv. The size of the accused and the victim of the assault.
See UMARU GWADU VS. GWANDU NA (1961) ALL NLR 545, ALIYU VS. THE STATE (2015) LPELR 40382, ALI VS. THE STATE (2015 LPELR 24711, AKITSE VS. THE STATE (2015) LPELR 24584 and ATTAH VS. THE STATE (2019) LPELR 48287.
In the case at hand, the medical report, stated the nature of the wound inflicted on the deceased, the part of the body injured i.e the neck of the deceased which is very delicate part of the body, the injury itself which is a deep cut on the anterior aspect of the neck severing the carotid vessel, the trachea and some muscles of the neck resulting in excessive bleeding. The Appellant ought to know or must have reason to know that death would be the natural consequences of his action.
A fortiori, even where the intention is to cause bodily injury and death results, then the Appellant must be held responsible for the crime. See AFOSI VS. THE STATE (2013) 13 NWLR (PT. 1371) 329, GIRA VS. THE STATE (1996) 4 NWLR (PT. 443) 375 and FOLARIN VS. THE STATE (1995) 1 NWLR (PT. 371) 313. The trial Court is right in holding that the Respondent proved beyond reasonable doubt that the Appellant caused the death of the deceased with the knowledge that such act will result in the death of the deceased. I find no reason to disturb the trial Court’s finding.
In conclusion, the only issue for determination is hereby resolved against the Appellant and in favour of the Respondent. This appeal lacks merit and it is accordingly dismissed. The judgment of the trial Court in case No. JDU/002/C/2011 is hereby affirmed. The Appellant’s conviction and sentence are hereby affirmed as well.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Mu’azu Lamido, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal.
I agree with the reasoning and abide by the conclusions reached therein.
This appeal arose out of a criminal trial. It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it. Where the commission of crime by a party is in issue in any proceedings, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal.
However, it must be understood that proof beyond reasonable doubt is “not proof to the hill” and is thus not synonymous with proof beyond all iota of doubt or proof of a mathematical certainty. This is due to the aphorism that absolute certainty is impossible in any human venture, inclusive of ministration 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 – Shola Vs State (2020) 8 NWLR (Pt. 1727) 530. In other words, 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 will be said to have been proved beyond reasonable doubt – Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1, Ibrahim Vs Commissioner of Police (2020) 15 NWLR (Pt 1746) 122, Fekolomoh Vs State (2021) 6 NWLR (Pt 1773) 461.
The Appellant was charged with culpable homicide punishable with death. He was alleged to have, on or about the 24th of May, 2011 at Nabai, Fulani Settlement in Babura Local Government Area of Jigawa State, killed his wife, Nanazabau Musa, by cutting her on the neck and throat with a machete and as a result of which she sustained severe injuries which caused her death. 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. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Abbas Vs People of Lagos State (2019) 16 NWLR (Pt 1698) 213, Okere Vs Inspector General of Police (2021) 5 NWLR (Pt 1770) 537, Njoku Vs State (2021) 6 NWLR (Pt 1771) 157.
It is also settled law in our criminal jurisprudence that the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient. See Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.
It is not in contest that the person referred to in the charge against the Appellant, his wife, Nanazabau Musa, is dead. The cause of death is also disputed; it was cardio respiratory interruption brought about by excessive bleeding resulting from a deep cut on the anterior portion of the neck severing the carotid vessel, the trachea and some muscles of the neck. This was confirmed by the medical report of cause of death, Exhibit A. It is obvious from the notes of evidence that the Respondent placed premium of circumstantial evidence in proving the guilt of the Appellant and that it was on the basis of the circumstantial evidence led that the lower Court convicted the Appellant.
It is trite law that where the prosecution relies on circumstantial evidence to prove the guilt of an accused person, the circumstances relied upon should point unequivocally, positively, unmistakably and irresistibly to the fact that the offence was committed and that the accused person committed it. The circumstantial evidence that entitles a Court to convict an accused person is one devoid of other co-existing circumstances, which create doubt in the Court’s mind, and makes the inference that the accused and no other person is the guilty party. The evidence must allow only one and only one inference from it; that the accused person alone committed the offence. The facts upon which the prosecution relies must be incompatible with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt – Omoregie Vs State (2018) 2 NWLR (Pt 1604) 505, Anyasodor Vs State (2018) 8 NWLR (Pt 1620) 107, Nwalu Vs State (2018) 14 NWLR (Pt 1638) 158, Esseyin Vs State (2018) 14 NWLR (Pt 1640) 491, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.
The first prosecution witness, the first Investigating Police Officer, testified that upon the arrest of the Appellant, he interviewed the Appellant and recorded his statement and that the Appellant confessed to him that he killed the deceased by using a cutlass on her and that this was because the deceased was always questioning his late night movements. The witness testified that the Appellant stated that on the particular day in question, the deceased questioned him about his late night return home and he told her that he was coming from his parent’s house but she did not believe him and the deceased told him that if he was looking for another wife, he should divorce her and to which he responded that he cannot bear seeing her married to another man and that he picked his cutlass and struck her down.
It is settled law that the evidence of an Investigating Police Officer of information and discoveries made in the course of his investigation and interrogation of the accused person and witnesses is admissible as direct evidence as the outcome of the Investigation and does not amount to hearsay evidence – Kamila Vs State (2018) LPELR-43603(SC), Offiong Vs State (2020) LPELR-49574(CA), Garba Vs State (2020) LPELR-51375(CA).
The evidence of the first prosecution witness was thus admissible evidence. The evidence was not disparaged, discredited or challenged under cross-examination and it was thus credible evidence that could be acted upon – Olude Vs State (2018) LPELR-44070(SC), Lanre Vs State (2018) LPELR-45156(SC), Daniel vs Ayala (2019) LPELR 49344(SC), Ifediora Vs Okafor (2019) LPELR-49518(SC).
Now, a read of the evidence shows that it amounted to an oral confession made by the Appellant. It is trite law that oral confession is as potent as a written confession and can ground the conviction of an accused person – Arogundade Vs State (2009) 6 NWLR (Pt 1135)165, Jua Vs State (2010) 4 NWLR (Pt 1184) 217, Matthew Vs State (2018) LPELR-43716(SC).
It was the case of the Respondent that the Appellant ran away from the scene of crime with the machete used in carrying out the attack. The second and third prosecution witnesses testified that they were on their way back from a ceremony at Daudu Fulani Settlement when they met the Appellant and who requested for water to drink and that they sourced waver for him and assisted him to drink it.
They gave evidence that they continued their journey and that upon sighting a vehicle coming their way, the Appellant asked that they should all run away but they refused to run, asking why the Appellant was running if he was on the path of truth. They testified that when the vehicle reached where they were, the passengers said they were looking for the Appellant as he had killed his wife and that they joined them in chasing and arresting the Appellant and that it was the second prosecution witness that disarmed the Appellant of the machete. The evidence of the two witnesses were also not disparaged, discredited or challenged under cross-examination.
When the oral confession made by the Appellant to the first prosecution witness is coupled with the evidence of the second and third prosecution witnesses and the contents of the medical report of cause of death, they constitute circumstantial evidence which point unequivocally, positively, unmistakably and irresistibly to the fact that the offence was committed and that the Appellant committed it.
In meeting the case of the Respondent, the Appellant raised the defence of alibi, that he was attending a ceremony at Danuyawo Village at the time of the incident. The law is that for the defence of alibi to avail an accused person, the law requires that it is raised timeously and should stare the full particulars of the accused person’s whereabout at the material time the offence was committed and that the information describing the location must be with exact precision so as to allow the police easy investigation for purpose of confirming the claim made by the accused – Mohammed Vs State (2014) LPELR-22916(SC), Sani Vs State (2015) LPELR-24818(SC), Adebiyi Vs State (2016) LPELR-40008(SC). Where the defence is not raised timeously by an accused person and with full particulars of his whereabout, the defence will fail – Esene Vs State (2017) LPELR-41912(SC), Ikumonihan Vs State (2018) LPELR-44362(SC). The Appellant did not raise the defence timeously and he only did so in the course of his oral evidence at trial and he did not give exact particulars of his about. The defence of alibi was thus not available to him.
In the light of the above, I am unable to fault the finding of the lower Court that the Respondent made out a cogent and credible case in proving the charge against the Appellant beyond reasonable doubt. I too agree that there is no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Jigawa State delivered in Suit No. JDU/02/C/2011 by Honorable Justice M. A. Sambo on the 31st of October, 2013 together with the conviction of and the sentence passed on the Appellant.
USMAN ALHAJI MUSALE, J.C.A.: My learned brother ABUBAKAR MU’AZU LAMIDO, JCA obliged me the draft of the leading judgment delivered by him just now. I adopt the reasoning and conclusion reached as mine and find that the appeal is unmeritorious. The appeal is equally dismissed by me. I abide by the consequential orders made therein.
Appearances:
ABDULAZIZ IBRAHIM, ESQ., with him, NASIR SAIDU, ESQ. and ABDULLATEEF I. MUHAMMAD, ESQ. For Appellant(s)
MUSTAPHA B. ADAMU (Deputy Director Public Prosecution), with him, AISHATU U. ZANDAM (Chief State Counsel) and SANUSI SANI (Senior State Counsel) For Respondent(s)