SABASTINE v. STATE (2020)

SABASTINE v. STATE

(2020)LCN/15278(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, June 30, 2020

CA/K/474C/2016

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

JULIET SABASTINE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

Now, it is settled 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 and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, 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. It must however be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. Thus, 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 – Uzoka Vs Federal Republic of Nigeria (2010) 2 NWLR (Pt. 1177) 118, Jua Vs State (2010) 4 NWLR (Pt. 1184) 217, Ike Vs State (2010) 5 NWLR (Pt. 1186) 41, Gabriel Vs State (2010) 6 NWLR (Pt. 1190) 280, Garba Vs State (2011) 14 NWLR (Pt. 1266) 98, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1. PER ABIRU, J.C.A.

FACTORS TO BE ESTABLISHED BY THE PROSECUTION TO SECURE A CONVICTION FOR CULPABLE HOMICIDE

It is trite that for a prosecution to secure a conviction for culpable homicide, 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 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 ABIRU, J.C.A.

WHETHER OR NOT A WRITTEN MEDICAL REPORT SHALL BE READ TO AN ACCUSED PERSON AFTER ITS ADMISSION IN EVIDENCE

In interpreting these provisions, the Courts have held that though they say that the written medical report shall be read to the accused after its admission in evidence and he shall be asked whether he disagrees with any statement therein, where the accused person is represented by a counsel, the Court needs not ask the accused person if he agrees with any statement in the medical report – Difa Vs The State (1977) NNLR 224, Danjuma Vs Kano State (2018) LPELR 44724(CA), Fulani M. Vs State (2018) LPELR 45195(SC). PER ABIRU, J.C.A.

WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

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 – Emeka Vs State (2001) 14 NWLR (Pt. 734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt. 1066) 300, Mbang Vs State (2010) 7 NWLR (Pt. 1194) 431, Dele Vs State (2011) 1 NWLR (Pt 1229) 508, Ilodigwe Vs State (2012) 18 NWLR (Pt. 1331) 1, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1. PER ABIRU, J.C.A.

WHETHER OR NOT IT IS MANDATORY FOR A MEDICAL OFFICER WHO PERFORMED AN AUTOPSY ON A DECEASED TO BE PRESENT IN COURT TO GIVE EVIDENCE DURING TRIAL

The Courts have interpreted this provision to mean that it is not mandatory for a medical officer who performed an autopsy on a deceased to be present in Court to give evidence during trial and that the production by either party of a certificate signed by the medical officer was sufficient evidence of the facts stated in the autopsy report – Isiekwe Vs State (1999) 9 NWLR (Pt 617) 43, State Vs Ajie (2000) 11 NWLR (Pt 678) 434, Eyo Vs State (2009) LPELR 8686(CA), Edoho Vs State (2010) 14 NWLR (Pt 1214) 651, Oguno Vs State (2011) 7 NWLR (Pt 1246) 314, Adeshina Vs People of Lagos State (2018) 8 NWLR (Pt 1673) 125, State Vs Musa (2019) LPELR 47541, Etuk-Udo Vs State (2020) LPELR 49164(CA). PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State delivered in Suit No K/136C/2011 by Honorable Justice P. A. Mahmoud on the 10th of August, 2015.

The Appellant was charged with culpable homicide pursuant to Section 221 of the Penal Code Law of Kano State. The Appellant was alleged to have killed one Uchenna on or about 2300hrs of the 21st of May, 2011 at Atiken Sabon Gari, Kano by stabbing him. The charge was read to the Appellant and she pleaded Not Guilty and the matter proceeded to trial and in the course of which the Respondent called eight witnesses in proof of its case, while the Appellant testified in her defence as the sole defence witness. At the conclusion of trial and after the rendering of final addresses by Counsel to the parties, the lower Court entered judgment wherein it found the Appellant guilty as charged and sentenced her accordingly.

The Appellant was dissatisfied with the judgment and she caused her Counsel to file a notice of appeal dated the 7th of October, 2015 and containing two grounds of appeal against it.

The notice of appeal was subsequently amended and the Appellant filed an amended notice of appeal containing eight grounds of appeal on the 20th of October, 2017 and the amended notice of appeal was deemed properly filed and served by this Court on the 22nd of January, 2018. In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 11th of July, 2017 on the 20th of October, 2017 and the brief of arguments was deemed properly filed and served by this Court on the 22nd of January, 2018. In response, Counsel to the Respondent filed a brief of arguments dated the 21st of June, 2018 on the 22nd of June, 2018 and the brief of arguments was deemed properly filed and served on the same 22nd of June, 2018. The Appellant filed an affidavit of fourteen paragraphs on the 17th of October, 2017 challenging the records of the lower Court and to which the Respondent filed a counter affidavit of five paragraphs on the 22nd of June, 2018. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions in the appeal.

Counsel to the Appellant distilled three issues for determination in the appeal and these were:
i. Whether the Appellant had a fair trial/fair hearing when some of the prosecution witnesses (PW1 and PW2) were taken in Chambers without any valid excuse?
ii. Whether the prosecution proved its case beyond reasonable doubt by credible, cogent and legally admissible evidence in law.
iii. Whether the delivery of the judgment about nine months after the conclusion of final addresses of parties has not occasioned a miscarriage of justice on the Appellant.

Counsel to the Respondent adopted the three issues for determination formulated by Counsel to the Appellant. This Court accepts the three issues for determination as the matters arising for consideration in this appeal and it will treat them seriatim.

Issue One
Whether the Appellant had a fair trial/fair hearing when some of the prosecution witnesses (PW1 and PW2) were taken in Chambers without any valid excuse?

In arguing the issue for determination, Counsel to the Appellant referred to the affidavit deposed to by the Appellant on the 17th of October, 2017 challenging the records of appeal and wherein the Appellant deposed that the proceedings of the lower Court of the 3rd of October, 2012, and whereat the first and second prosecution witnesses gave their testimonies, were conducted in the Chambers of the trial Judge, and not in open Court. Counsel noted that this fact was not reflected in the record of proceedings and no reason was given for this state of affairs and that the conduct of proceedings in the Judge’s Chambers was in breach of the provisions of Sections 36(1) and (4) of the Constitution of the Federal Republic of Nigeria that mandate proceedings of the Court to be conducted in the open and in public in such a manner as to secure its independence and impartiality. Counsel stated that the fact that the Appellant was represented by Counsel at the proceedings conducted in the Judge’s Chambers was irrelevant as the right guaranteed by those provisions of the Constitution was a public right that cannot be waived.

Counsel stated that the effect of conducting the proceedings of a Court in private or in a Judge’s Chambers is that the entire proceedings and the judgment delivered thereon are nullities and that it is immaterial that it was just one of the proceedings of the Court that was so conducted in private, and others were done in the public and in the open. Counsel relied on the decisions of the Supreme Court in Oviasu Vs Oviasu (1973) 8 NSCC 502, Ariori Vs Elemo (1983) 1 SCNLR 1, Nigeria-Arab Bank Ltd Vs Barri Engineering (Nig) Ltd (1995) 8 NWLR (Pt 413) 257 and Alimi Vs Kosebinu (2016) All FWLR (Pt 859) 944 in making the above assertions. Counsel stated that the conduct of the proceedings of the lower Court of 3rd October, 2012 in the Judge’s Chambers breached the Appellant’s right to fair hearing and/or fair trial and rendered the entire proceedings of the lower Court and the judgment as nullities. Counsel urged the Court the Court to resolve the first issue for determination in favour of the Appellant and to set aside the judgment of the lower Court.

In response, Counsel to the Respondent stated that the submissions of Counsel to the Appellant were predicated on the affidavit of the Appellant deposed to on the 17th of October, 2017 wherein the Appellant alleged that evidence the first and second prosecution witnesses were taken in the Chambers of the trial Judge.

Counsel stated that they deposed to a counter affidavit wherein they countered the allegation as untrue, unsubstantiated and contrary to the record of proceedings of the trial Court and ought to be discountenanced. Counsel stated that this Court should thus reject the submissions of Counsel to the Appellant and resolve the first issue for determination in favour of the Respondent.

The records of the proceedings in the lower Court were compiled and transmitted to this Court on the 27th of September, 2016 and they were deemed properly compiled and transmitted on 18th of May, 2017. A read through the records of proceedings show that the proceedings of the lower Court of the 3rd of October, 2012, and whereat the first and second prosecution witnesses gave their testimonies were presented as having been conducted in open Court; the first statement on the record of proceedings for that day reads “Accused produced in Court. Speaks English.” The Appellant contends otherwise and says that the proceedings of that day were conducted in the Chambers of the trial Judge. Counsel to the Appellant conceded that contents on the face of the records of proceedings do not support the allegation of the Appellant. The Appellant thus deposed to an affidavit challenging the records of proceedings. The Respondent deposed to a counter affidavit, and after which Counsel to the Appellant did nothing further to challenge the records of proceedings.
Counsel to the Appellant, believing that the record of proceedings had been amended by the simple fact of the Appellant deposing to an affidavit of challenge, predicated and argued the first issue for determination on basis of the fact that the proceedings of lower Court of 3rd of October, 2012 was indeed conducted in Chambers of the trial Judge, and not in open Court. With respect to Counsel to the Appellant, he was completely mistaken. The filing of an affidavit challenging records of appeal is only a means to an end and not the end in itself. It is only a first step to be taken by a party seeking to amend the records of appeal, thereafter the party is expected to file an application in the appellate Court seeking to amend the records of appeal to include the further documents referred to or additional information contained in the affidavit of challenge. Where a party fails to take the second step, the affidavit challenging the records of appeal is of no legal consequence and achieves nothing. This point was made by the Supreme Court in Garuba Vs Omokhodion (2011) 15 NWLR (Pt 1269) 145 where Chukwuma-Eneh, JSC stated thus at 179 to 180 E – B:
“The record/proceeding of the 26/4/2010 of the trial Court as affirmed by the lower Court has been challenged by the appellant who filed an affidavit to that effect contending that the citation of the two cases viz: Dapialong Vs Dariye (No 2) (supra) and Inakoju Vs Adeleke (supra) as well their submission thereon has been left out of the record/proceeding of the trial Court on 26/4/2010 and that same be made part of the record of appeal/proceeding of 26/4/2010 in this matter particularly as the said affidavit has not been countered by the other parties. The said affidavit has been served on the parties and the Court and not having been countered, the appellants have contended that the record of appeal/proceeding of 26/4/2010 has ipso facto been accordingly amended without more. With the greatest respect, I must say that to amend the record of appeal in any proceeding including the instant one is much more than simply filing an affidavit challenging the record/proceeding as here without more. All the parties to this suit although served the affidavit challenging the record, it must be followed by a formal application to Court to amend the record for the Court to sanction the amendment as the whole essence of filing an affidavit in that respect is to bring about an amendment of the record of appeal/proceeding of 26/4/2010. …”
The point has been reiterated in the cases of Orok Vs Orok (2013) LPELR 20377(CA), Obiakor Vs Obiakor (2017) LPELR 43309(CA), Andrew Vs Independent National Electoral Commission (2018) 9 NWLR (Pt 1625) 507, Fingesi Vs Independent National Electoral Commission (2019) LPELR 49144(CA). The Appellant in the instant case did not file an application to amend the records of appeal to include the facts contained in the affidavit challenging the records of appeal. It is settled law that, until amended, this Court, the parties and their counsel are bound by the records of appeal duly compiled, authenticated and transmitted by the lower Court to the Registry of this Court – Oseni Vs Bajulu (2009) 18 NWLR (Pt. 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt. 1198) 1 and Garuba Vs Omokhodion supra. The Appellant, having failed to take any further step, after filing the affidavit challenging the records of appeal on the 17th of October, 2017, to amend the records of appeal, her Counsel was completely off the mark in arguing the first issue for determination on the basis of a fact not contained or reflected in the records of appeal.

The law is that neither the parties nor an appellate Court can read into the records of appeal, what is not there, and/or read out of the records of appeal, what is there. An Appellate Court must read the record in the exact content and interpret it – Agbareh Vs Mimra (2008) 2 MJSC 134, Oguntayo Vs Adelaja (2009) 15 NWLR (Pt. 1163) 150. An appellant cannot go outside the records of appeal and canvass what he thinks is in favour of his case, which is not in the records. Thus, no arguments or submissions in a party’s brief of arguments, however ingenious, can distort or make an iota of difference to the contents of a record of appeal – Sifax (Nig) Ltd Vs Migfo (Nig) Ltd (2018) 9 NWLR (Pt. 1623) 138, Dick Vs Our and Oil Co. Ltd (2018) 14 NWLR (Pt. 1638) 1 and Patrick Vs State (2018) 16 NWLR (Pt. 1645) 263. The submissions of the Counsel to the Appellant on the first issue for determination were not supported by the contents of the records of appeal. They are baseless and the first issue for determination is resolved in favour of the Respondent.

Issue Two
Whether the prosecution proved its case beyond reasonable doubt by credible, cogent and legally admissible evidence in law.

In arguing this issue for determination, Counsel to the Appellant referred to the cases of Iliyasu Vs State (2015) All FWLR (Pt. 793) 1961 and Ali Vs State (2015) All FWLR (Pt. 796) 559 in reiterating the three ingredients that the Respondent was obligated to prove to get a conviction for culpable homicide. Counsel stated that the Respondent led credible evidence to prove only the first ingredient, that the deceased died, and failed to lead credible, cogent and legally admissible evidence cognizable in law to prove the other two ingredients and that the lower Court was in error in convicting the Appellant on the basis of such evidence.

Counsel to the Appellant commenced his x-ray of the judgment of the lower Court from the finding on dying declaration made by the Court and he reproduced the said finding and stated that it was flawed because for a statement to be held to constitute a dying declaration, it must have been made when the deceased was at a point of death and has lost all hope of recovery. Counsel stated that a dying declaration relates not just to the statement of the deceased but the inner workings of his mind as to his apprehension that he was in imminent danger of passing on to the great beyond as a result of the injury sustained and there must be possible evidence that the deceased was in fear of death and he referred to the provision of Section 40 (1) of the Evidence Act and the cases of Ogba Vs State (1990) 3 NWLR (Pt 139) 505, Daniels Vs State (1991) 8 NWLR (Pt 212) 715, Ekpoisong Vs State (2009) 1 NWLR (Pt 1122) 354 and Olabode Vs State (2009) 11 NWLR (Pt 1152) 254. Counsel stated that the Respondent did not lead any positive evidence to establish that the deceased was in apprehension of an imminent death and evinced no hope of recovery before he died when he made the statement and that such evidence was mandatory and it was immaterial that the deceased died shortly after making the statement. Counsel stated that the finding of the lower Court on dying declaration was thus faulty.

Counsel thereafter considered the evidence led by the third prosecution witness whom he described as a tainted witness because he was one of the persons arrested with the Appellant at the scene of the crime and was initially charged along with the Appellant as a co-accused before he was dropped from the charge and became a prosecution witness. Counsel referred to the definition of a tainted witness in the cases of Ogunlana Vs State (1995) 5 NWLR (Pt 395) 266, Effiong Vs State (1998) 8 NWLR (Pt 562) 458, Ali Vs State (2015) All FWLR (Pt 796) 559, amongst others and stated that the third prosecution witness fell within the definition, particularly more so as the Appellant maintained in her statements and oral evidence that it was the third prosecution witness that stabbed the deceased, in an attempt to stab her, in course of a melee amongst them, and that as such his evidence required corroboration. Counsel conceded that the evidence of a tainted witness was legally admissible and could be used in deserving cases to convict an accused person if found to be cogent, credible and relevant.

Counsel stated that the evidence of the third prosecution witness was arguably the sole evidence relied upon by the lower Court in reaching its verdict and that the lower Court held the third prosecution witness to be a near eye-witness to the crime. Counsel traversed through the evidence of the third prosecution witness as relied upon by the lower Court in the judgment and raised many questions in respect thereof and stated that the evidence was at variance with the evidence of the first prosecution witness as to who directed that the deceased be taken to the hospital after the stabbing incident and that while the third prosecution witness testified that it was the first prosecution witness, the first prosecution witness gave no such evidence. Counsel stated that the evidence of the first prosecution witness correlated with the evidence of the Appellant as to what transpired and that the statements made by the Appellant showed material synchrony with her oral evidence and that where an accused person makes two or more statements, the Court is at liberty to rely on that which is less favourable to the accused person and he referred to the case of Edoko Vs State (2015) All FWLR (Pt 772) 1728. Counsel stated that all these showed that the third prosecution witness had a lot to hide and his evidence ought to have been viewed with a lot of circumspection and ought to have been fortified with legally admissible corroborative evidence showing or tending to show that it was the Appellant that stabbed the deceased to death before the lower Court could place reliance on it.

Counsel also descended on the medical report of death, Exhibit 1, and the evidence of the seventh prosecution witness, the Medical Doctor who tendered the report, and stated that both the exhibit and the testimony of the Medical Doctor were not admissible and they lacked legal cogency or potency in law. Counsel stated that the evidence of the seventh prosecution witness was that the medical report was prepared by a Dr. Raphael Solomon of the Pathology Department and that he was a trainee in the Department at the time and that his testimony was thus hearsay in that it seeks to affirm or confirm the truthfulness of the contents of medical report that was made by another doctor not called as a witness and that the medical report too constitutes documentary hearsay, not cognizable in law and he referred to the cases of Buhari Vs INEC (2008) 19 NWLR (Pt. 1120) 248, Mohammed Vs Usman (2012) 8 NWLR (Pt. 1301) 141, Belgore Vs Ahmed (2013) 8 NWLR (Pt. 1355) 60 and Nyesom Vs Peterside (2016) All FWLR (Pt. 842) 1578. Counsel noted that the seventh prosecution witness tendered the original of the medical report and stated that since the witness was not the maker of the document and the document was a public document, only a certified true copy of the medical report, not the original, was admissible in the circumstances and he referred to the cases of Oha Vs Uzoma (2015) All FWLR (Pt. 790) 1232, Giwa Vs Yarbun (2011) All FWLR (Pt. 565) 254 and Anatogu vs Igwe Iweka II (1995) 8 NWLR (Pt. 415) 547. Counsel urged the Court to expunge both the oral testimony of the seventh prosecution witness and the medical report, Exhibit 1.

Counsel then moved over to the evidence of the sixth prosecution witness who initially testified and was discharged on the 28th of November, 2012, and was recalled to give further testimony on the 18th of February, 2014 and in the course of which he tendered the statement of the Appellant, Exhibit 2. Counsel noted that upon the recall of the witness, he was cautioned and reminded of his previous oath, on the directive of the lower Court, and he did not take a fresh oath. Counsel stated that the failure to re-swear the witness before the taking of his further evidence amounted to a breach of the provisions of Section 205 of the Evidence Act and Section 1 of the Oaths Act.

Counsel stated that the word used in both provisions is “shall” and which connotes mandatoriness and compels obeisance without any room for discretion and the mere cautioning of the sixth prosecution witness and the reminding him of his previous oath upon his recall to testify without his taking a fresh oath derogated from those provisions. Counsel stated that this was fatal to the further evidence led by the witness upon his recall and it rendered the testimony void and of no moment in the case and that the further evidence and the documentary exhibit tendered by him in course thereof, Exhibit 2, ought to be expunged. Counsel also posited that the further evidence given by the witness was inconsistent with his earlier testimony in material particulars, which he proceeded to highlight, and stated that the lower Court was in error when it relied on the inconsistent evidence of the sixth prosecution witness in coming to the conclusion that the Appellant caused the death of the deceased and he referred to the case of Igbi Vs State (1998) 11 NWLR (Pt 574) 419.

Counsel stated that the lower Court also speculated on certain facts and circumstances of the case in making findings in the judgment and that the assertions of the lower Court that the scene of crime was a brothel and that the Appellant was a commercial sex worker were not supported by the evidence led by the first and fifth prosecution witnesses and that it was only the sixth prosecution witness who described the Appellant as a harlot, but even he did not say the scene of crime was a brothel.

Counsel stated that the lower Court’s evaluation of the injuries sustained by the Appellant on the night of the incident was far-fetched, speculative and not supported by the evidence of the first prosecution witness and of the Appellant on the beating meted to the Appellant by the third and fourth prosecution witnesses. Counsel stated that the inference drawn by the lower Court that the Investigating Police Officer confirmed that the Appellant stabbed the deceased was unfounded and far-fetched and is not supported by the evidence of the Investigating Police Officer. Counsel stated that while it was within the province of the lower Court to draw inferences from established facts, this did not amount to permission to the lower Court to speculate on facts not led in evidence before it and that the findings made by the lower Court on the basis of the speculated facts occasioned a miscarriage of justice to the Appellant. Counsel stated that contrary to the finding of the lower Court, the Respondent failed to lead credible, cogent and legally admissible evidence to prove that it was the act of the Appellant that caused the death of the deceased.

Additionally, Counsel stated that assuming that the Respondent led credible evidence to prove that it was the act of the Appellant that caused the death of the deceased, it cannot be said to have proved that the Appellant had the requisite mens rea to commit the offence because it is difficult to decipher why an alleged commercial sex worker will want to or even kill her customer over a service which can arguably be rendered on credit. Counsel stated that if the circumstances of the case are viewed from the storyline of the Respondent, the action of the deceased in refusing to pay after having enjoyed the service rendered him by the Appellant was sufficient act of provocation for someone in the Appellant’s state of life and which provocation had not simmered at time of the alleged stabbing of the deceased and he referred to the case of Afosi Vs State (2014) All FWLR (Pt 725) 268. Counsel stated that if the circumstances are looked at from the Appellant’s story line, they raise the issue of self defence because the deceased and others assailed the Appellant for her refusal to yield to the indecent offer of the deceased and she was in apprehension of grave danger of death by reason of the attack on her with dangerous weapons and he referred to the case of Jimmy Vs State (2014) All FWLR (Pt. 714) 103. Counsel stated that either of the two scenarios shows a complete lack of mens rea on the part of the Appellant to commit the alleged offence and he referred to the case of Sheidu Vs State (2014) All FWLR (Pt. 750) 1381.

Counsel stated that the Respondent obviously failed to prove the requisite ingredients of the offence charged against the Appellant and that the lower Court was thus in error when it convicted the Appellant. Counsel urged the Court to resolve the second issue for determination in favour of the Appellant.

In response, Counsel to the Respondent re-echoed the three ingredients necessary to prove in order to sustain a charge of culpable homicide and stated that it was not in dispute between the parties that one Uchenna was stabbed to death on the 21st of May, 2011, and that the dispute was as to whether it was the Appellant that did the stabbing. Counsel noted the three ways of proving the guilt of an accused person in a criminal trial and stated that the Respondent founded its case against the Appellant on the dying declaration of the deceased and which was corroborated by the testimonies of the third and fourth prosecution witnesses and by the oral extra judicial confession of the Appellant when she learnt of the death of the deceased. Counsel stated that the entire submission of Counsel to the Appellant on dying declaration was a misconception of the law and that the lower Court’s finding that the statement of the deceased that it was the Appellant that stabbed him amounted to a dying declaration was correct.

Counsel stated that the assertion of Counsel to the Appellant that the third prosecution witness was a tainted witness is baseless as it was not established that the third prosecution witness took part in the commission of the crime and that the evidence showed that the alleged fight between the Appellant and the third and fourth prosecution witnesses took place after the Appellant had stabbed the deceased. Counsel stated that the testimony of the third prosecution witness was consistent on the facts material to the case of the Respondent and the discrepancies alleged by Counsel to the Appellant were minor and did not affect the credibility of his evidence and he referred to the case of Ogunlana Vs The State (1995) NWLR (Pt. 395) 226. Counsel stated that the admissibility or inadmissibility of the medical report, Exhibit 1, was really of no consequence in this matter as the evidence showed that the deceased was stabbed in the chest and he died shortly thereafter and as such the cause of death was clear and a medical report was not a necessity in proving the cause of death and he referred to the cases of A. G. Federation Vs Ogundoro (2001) NWLR (Pt. 720) 175 and Uyo Vs A. G., Bendel (1986) 1 NWLR (Pt. 17) 148.

Counsel stated that the defences of provocation and self-defence raised by her Counsel cannot avail the Appellant in the circumstances of this case because they are mutually exclusive and reliance on any one of them is a clear admission of the commission of the offence charged. On the question of whether the Appellant possessed the requisite mens rea, Counsel stated that intention is a matter of inference to be determined from the available and credible evidence in a particular case and that the requisite intention can be inferred from the nature of the weapon used, the part of the body of the deceased that was brutalized by the weapon and the proximity of the deceased to the weapon and he referred to the case of Njoku Vs The State (2013) 2 NWLR (Pt 1339). Counsel urged the Court to resolve the second issue for determination in favour of the Respondent.

The Appellant was charged with culpable homicide and she was alleged to have stabbed a person called Uchenna to death. Now, it is settled 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 and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, 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. It must however be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. Thus, 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 – Uzoka Vs Federal Republic of Nigeria (2010) 2 NWLR (Pt. 1177) 118, Jua Vs State (2010) 4 NWLR (Pt. 1184) 217, Ike Vs State (2010) 5 NWLR (Pt. 1186) 41, Gabriel Vs State (2010) 6 NWLR (Pt. 1190) 280, Garba Vs State (2011) 14 NWLR (Pt. 1266) 98, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.

On the first ingredient of the offence of culpable homicide, it was not in contest between the parties that the person referred to in the charge against the Appellant as Uchenna 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 certificate of death dated the 31st of May, 2011 issued by one Dr. Raphael Solomon confirming the death of the deceased as Exhibit 1. The first ingredient of the offence of culpable homicide punishable with death was established without much ado. 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, 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 (Pt. 1122) 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 9596 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 lower Court relied on the medical report of death (an autopsy report) dated the 31st of May, 2011 issued by one Dr. Raphael Solomon confirming the death of the deceased and tendered by the Respondent through the seventh prosecution witness, a Dr. Adamu Shuaibu. The report stated the cause of death as “haemorragic shock secondary to massive haemothorax following penetrating right upper chest stab wound”. In other words, that the cause of death was a stab wound to right upper chest of the deceased. In tendering the report, the seventh prosecution witness testified that he was a Senior Registrar in the Department of Histopathology in the Aminu Kano Teaching Hospital, Kano and that:
“… I know Dr Raphael Solomon of the Department of Pathology AKTH. He is currently in Lagos preparing for his Part II Medical Exams in Pathology. I remember on the 24/05/2011 I was at work in the Department when an adult male was brought into the Department dead. His name was Uchenna. He was brought for post mortem examination. The examination was conducted by Dr Raphael Solomon with other doctors including myself. A report was issued. I can identify the report from Dr Raphael’s handwriting and signature. I have been working with Dr Raphael since 2009…”

The original copy of the medical report was thereafter identified by the witness and it was tendered and admitted as Exhibit 1 by the lower Court without any objection from the Appellant and/or her Counsel and its contents were thereafter read out in open Court to the hearing of all present.
Counsel to the Appellant took an exception to the reliance placed by the lower Court on both the medical report and the testimony of the seventh prosecution witness. Counsel stated that since the medical doctor who authored the medical report was not the person who attended Court to give evidence, the medical report amounted to documentary hearsay and the evidence of the seventh prosecution witness who tendered the report was oral hearsay and that both were legally inadmissible evidence. Counsel further stated that since Dr Raphael Solomon who signed the medical report was not a Consultant Pathologist at the time he authored the report and the seventh prosecution witness was only a trainee Pathologist when the autopsy was conducted, the medical report was flawed.
It is obvious that Counsel to the Appellant did not avert his mind to the provisions of Section 55 (1), (2) and (3) of Evidence Act which deals with the tendering of medical certificates in making his submissions. The provisions read that either party to the proceedings in any criminal case may produce a certificate signed by a Government pathologist or by any pathologist specified by the Director of Medical Laboratories of the State and the production of any such certificate may be taken as sufficient evidence of the facts stated therein but with a proviso empowering the Court to either on its own motion or on the application of the other party direct such pathologist to attend Court for purposes of cross-examination. The Courts have interpreted this provision to mean that it is not mandatory for a medical officer who performed an autopsy on a deceased to be present in Court to give evidence during trial and that the production by either party of a certificate signed by the medical officer was sufficient evidence of the facts stated in the autopsy report – Isiekwe Vs State (1999) 9 NWLR (Pt 617) 43, State Vs Ajie (2000) 11 NWLR (Pt 678) 434, Eyo Vs State (2009) LPELR 8686(CA), Edoho Vs State (2010) 14 NWLR (Pt 1214) 651, Oguno Vs State (2011) 7 NWLR (Pt 1246) 314, Adeshina Vs People of Lagos State (2018) 8 NWLR (Pt 1673) 125, State Vs Musa (2019) LPELR 47541, Etuk-Udo Vs State (2020) LPELR 49164(CA).
It was not in contest that Aminu Kano Teaching Hospital is a Kano State Government Hospital and that the medical report, Exhibit 1, was signed by a medical officer in the service of the Kano State Government. It is irrelevant that the medical doctor was not a Consultant Pathologist at the time he authored the report because the law is that a medical officer in the service of a State Government for the purpose of undertaking a post mortem is a pathologist and his report is the certificate envisaged by Section 55 (1) of the Evidence Act – Ehot Vs State (1993) 4 NWLR (Pt. 290) 644, State Vs Ajie supra, Amusa Vs State (2003) 4 NWLR (Pt. 811) 595, Ekanem Vs State (2009) LPELR 4105(CA), Oladapo Vs State (2013) LPELR 22092(CA). The records of appeal show that the Counsel to the Appellant did not request for the attendance of the pathologist in the lower Court.
Additionally, Counsel to the Appellant was also oblivious of the provisions of Section 249 (3) (a) (b) and (c) of the Criminal Procedure Code which read that a written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of the death of any person who has been examined by him and that on the admission of such report, the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court. Further, that if by any reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend and give evidence in person the Court shall summon such medical practitioner to appear as a witness.
In interpreting these provisions, the Courts have held that though they say that the written medical report shall be read to the accused after its admission in evidence and he shall be asked whether he disagrees with any statement therein, where the accused person is represented by a counsel, the Court needs not ask the accused person if he agrees with any statement in the medical report – Difa Vs The State (1977) NNLR 224, Danjuma Vs Kano State (2018) LPELR 44724(CA), Fulani M. Vs State (2018) LPELR 45195(SC). The records of appeal show that the contents of the medical report, Exhibit 1, was read in open Court to everyone’s hearing and Counsel to the Appellant did not contest any portion thereof. Thus, the non-attendance of the medical officer who authored the report in Court and the fact that he was not a Consultant Pathologist at the time were really of no consequence.

Counsel to the Appellant further contended that being a public document, the original of the medical report tendered by the Respondent was inadmissible evidence and that only a certified true copy of the medical report was admissible. Counsel predicated his submission on the warped logic that since the author of the document was not called to testify, a certified true copy was the only way to ascertain the authenticity of the medical report as the Respondent could have procured a fake or forged original copy. With respect to Counsel, this thinking has no basis in law and it cannot be located within any of the provisions of the Evidence Act or any statute for that matter. The law is settled that the original of a public document is admissible in evidence without the need for certification, irrespective of the person tendering the document – Iteogu Vs Legal Practitioners Disciplinary Committee (2009) 17 NWLR (Pt 1171) 614, Peoples Democratic Party Vs Independent National Electoral Commission (2014) 17 NWLR (Pt. 1437) 525, Abdullahi Vs Federal Republic of Nigeria (2016) 10 NWLR (Pt. 1521) 475, Emeka Vs Chuba-Ikpeazu (2017) 15 NWLR (Pt 1589) 345, Kassim Vs The State (2018) 4 NWLR (Pt. 1608) 20, Anagbado Vs Faruk (2018) LPELR 44909(SC). The original of the medical report is what is envisaged by the provisions of Section 55 (1) of the Evidence Act and Section 249 (3) (a) of the Criminal Procedure Code. It was thus admissible evidence.
The medical report, Exhibit 1, was credible, cogent and legally admissible evidence and the lower Court was bound in the circumstances to accept it as sufficient evidence of its contents – Ehot Vs State supra, State Vs Ajie supra, Fulani M. Vs State supra.

Furthermore, there was unchallenged evidence in the testimonies of the third and fourth prosecution witnesses that the deceased was hale and hearty when they went to the hotel/bar where the stabbing incident occurred and that the deceased died shortly after the stabbing incident, on their way conveying him to the Aminu Kano Teaching Hospital and he was confirmed dead at the hospital. It is trite law that where there is evidence that a deceased person was hale and hearty before the occurrence of an offending act and death is instantaneous or nearly so and there is no break in the chain of events from the time of the act that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to that act, even without medical evidence of the cause of death – Essien Vs State (1984) 3 SC 14, Adekunle Vs State (1989) 5 NWLR (Pt. 123) 505, Azu Vs State (1993) 6 NWLR (Pt. 299) 303 and Akpa Vs State (2008) 14 NWLR (Pt. 1106) 72.
The rationale for this position, which is founded on sound logic and common sense, is that since that act is the most proximate event to the death of the deceased, it should be regarded as the deciding factor even where it may be taken as merely contributory to the death of the deceased – Jeremiah Vs State (2012) 14 NWLR (Pt. 1320) 248. The finding of the lower Court that the Respondent led cogent evidence proving beyond reasonable doubt that it was the stab wound to the right upper chest of deceased that caused the death of the deceased cannot thus be faulted.

This takes us to the second limb of the second ingredient of the offence of culpable homicide; whether it was the act of the Appellant that caused the death of the deceased. 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 – Emeka Vs State (2001) 14 NWLR (Pt. 734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt. 1066) 300, Mbang Vs State (2010) 7 NWLR (Pt. 1194) 431, Dele Vs State (2011) 1 NWLR (Pt 1229) 508, Ilodigwe Vs State (2012) 18 NWLR (Pt. 1331) 1, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.

It is obvious from the records of appeal that the Respondent relied on circumstantial evidence in proving the guilt of the Appellant and that it was on the basis of the circumstantial evidence that the lower Court convicted and sentenced the Appellant. A read through the judgment shows that the lower Court found that the Appellant and the deceased were alone in the Appellant’s room in the hotel/bar when the stabbing incident occurred. The lower Court found that the statement which the third prosecution witness said the deceased made to him that it was the Appellant that stabbed him, and which the fourth prosecution witness testified that the deceased also made to him, amounted to a dying declaration, taking into consideration the location of the stab wound, in the chest cavity, the penetrating impact of the stab wound and the fact that the deceased died less than one hour after the stabbing incident.
Counsel to the Appellant contested the finding of the lower Court on dying declaration on two major grounds; (i) that the third prosecution witness around whose evidence the lower Court made the finding was not a witness whose evidence ought to have been relied upon by the lower Court; and (ii) that the Respondent did not lead any positive evidence to establish that the deceased was in the apprehension of an imminent death and evinced no hope of recovery before he died.
In contending against the evidence of third prosecution witness, Counsel posited that he was a tainted witness and thus his evidence was unreliable and ought not to have been believed by the lower Court. Counsel predicated his assertion on the fact that the third prosecution witness was one of the persons arrested along with the Appellant at the scene of the crime and was initially charged along with the Appellant as a co-accused before he was dropped from the charge and he became a prosecution witness. And further because the Appellant maintained in her statements and oral evidence that it was the third prosecution witness that stabbed the deceased, in an attempt to stab her, in course of a melee amongst them.

Now, without going into the question of whether or not the third prosecution witness qualifies as a tainted witness in the circumstances of this case, it is not the law that the evidence of a tainted witness is inadmissible. A tainted witness is a competent witness and a Court of law must not disbelieve the evidence of a witness, simply because he has been described to be a tainted witness – Ojo Vs Gharoro (2006) 10 NWLR (Pt. 987) 173. What the law requires of a trial Judge is to treat the evidence of such a witness with caution and go through it fastidiously with the finery of a tooth comb before accepting it and should find some corroborating evidence in support thereof – Ishola Vs State (1978) 9-10 SC 81, Akpan Vs State (1992) 6 NWLR (Pt. 248) 439, Olaiya Vs State (2010) 3 NWLR (Pt 1181) 423, Pius Vs State (2015) 7 NWLR (Pt. 1459) 628, Uzim Vs State (2019) LPELR 48983(SC).
A read through the judgment appealed against shows that the lower Court carried out an extensive evaluation of the evidence led by the third prosecution witness on stabbing of the deceased vis-a-vis the evidence led by the Appellant on the incident and it found the evidence of the third prosecution witness to be more real and believable than the evidence of the Appellant. The lower Court, in concluding its evaluation, stated in the judgment thus:
“… I find that the story of the accused as to how the incident happened is very wild. It leaves too much unanswered questions. I do not believe her story that it was Ejike (the third prosecution witness) that stabbed the deceased mistakenly when he wanted to stab her. The story of the accused is made curiouser when she said that men were hitting her and trying to rape her when Ejike wanted to stab her. I find the whole narration wholly unreasonable. I have seen the accused and she has a small stature. What kind of power does she possess that seven men will need a weapon or need to stab her to rape her. I do not believe the story of the accused at all.”
The Appellant did not appeal against this finding of the lower Court. It is settled law that a party against whom findings of fact were made has a duty to appeal against those findings otherwise he shall be deemed to have accepted the adverse findings or specific judgments on the issue and such findings bind the parties and the appellate Court – Saraki Vs Federal Republic of Nigeria (2018) 16 NWLR (Pt. 1646) 405 and Ecobank (Nig) Ltd Vs Anchorage Leisures Ltd (2018) 18 NWLR (Pt. 1650) 116.
Further, a read through the judgment appealed against showed that the lower Court found corroboration for the evidence of the third prosecution witness on the dying declaration made by the deceased that it was the Appellant that stabbed him in the testimony of the fourth prosecution witness and for his evidence on the incident of the stabbing of the deceased in the testimonies of both the fourth prosecution witness and the first prosecution witness. Thus, even if the assertion of the Counsel to the Appellant that the third prosecution witness was a tainted witness is correct, it is obvious from the judgment that the lower Court did all that was required of it before believing the evidence of such a witness – it went through his evidence fastidiously with the finery of a tooth comb and found corroborating evidence in support thereof. Thus, the reliance placed on the evidence of the witness by the lower Court cannot be faulted on the simple ground that he was a tainted witness, as suggested by Counsel to the Appellant.

It was also the contention of Counsel to the Appellant that the evidence led by the third prosecution witness “shows that there is more than meets the eye”. Counsel raised some questions which he suggested arose from the evidence of the witness and concluded from the questions that the evidence of the witness was “incredibly bizarre” and “was an unreasonable story incapable of belief”. Counsel must have forgotten that this is an appellate Court and that questions are asked of witnesses in the trial Court. The Appellant was represented by Counsel at the trial and none of the questions being raised by Counsel to the Appellant in this appeal were put to the third prosecution witness in the course of his cross-examination. It is settled law that the address of Counsel, no matter how brilliant, cannot substitute for lack of evidence in support of the resolution of issues before a Court – Agugua Vs State (2017) 10 NWLR (Pt. 1573) 254, Oforishe Vs Nigeria Gas Co Ltd (2018) 2 NWLR (Pt. 1602) 35, Sale Vs State (2020) 1 NWLR (Pt.1705) 205. It amounts to speculation for Counsel to raise the questions in this appeal, provide answers for them and conclude on the bases of the answers provided by him that the evidence of the witness was “incredibly bizarre” and “incapable of belief”. It is elementary that a judicial inquiry is allergic to speculations and conjectures and they cannot be relied upon by a Court of law – Long-John Vs Blakk (1998) 5 SCNJ 68, Orhue Vs NEPA (1998) 7 NWLR (Pt 577) 187, Opeyemi Vs State (2019) 17 NWLR (Pt 1702) 403. In Ivienagbor Vs Bazuaye (1999) 9 NWLR (Pt. 620) 555, Uwaifo, JSC made the point that “… speculation is a mere variant of imaginative guess which, even where it appears plausible, should never be allowed by a Court of law to fill any hiatus in the evidence before it.”

It was the further contention of Counsel to the Appellant that the evidence of the third prosecution witness was fraught with a “lot of factual inconsistencies”. It is elementary law that minor or trivial inconsistencies or contradictions in evidence do not affect the credibility of a witness and cannot vitiate a trial. The inconsistencies or contradictions to be fatal must relate to material facts and be substantial. They must deal with the real substance of a case – Osetola Vs State (2012) 17 NWLR (Pt. 1329) 251, Osung Vs State (2012) 18 NWLR (Pt. 1332) 256, Famakinwa Vs State (2013) 7 NWLR (Pt. 1354) 597, Anyasodor Vs State (2018) 8 NWLR (Pt. 1620) 107, Oloye Vs State (2018) 14 NWLR (Pt 1640) 509, Awosika Vs State (2018) 15 NWLR (Pt 1643) 446, Salau Vs State (2019) 16 NWLR (Pt 1699) 399. In Theophilus Vs The State (1996) 1 NWLR (Pt 423) 139, the Supreme Court at 155 A-B put the point thus:
“… It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial Court that an accused is entitled to benefit therefrom.”
Counsel to the Appellant did not point to any material inconsistency either in the evidence of the third prosecution witness or in his evidence vis-a-vis the evidence of the other prosecution witnesses. This Court has no business going through the records of evidence to fish for such inconsistencies.

All the contentions of Counsel to the Appellant against the evidence of the third prosecution witness were not well founded and the reliance placed on the evidence by the lower Court in making its findings on dying declaration cannot be faulted.

The second ground upon which the Counsel to the Appellant sought to fault the finding of the lower Court on dying declaration was that the Respondent did not lead any positive evidence to establish that the deceased was in the apprehension of an imminent death and evinced no hope of recovery before he died. The question of the admissibility of a statement made a deceased qualifying as a dying declaration is covered by the provision of Section 40 of the Evidence Act. Section 40 (1) of the Evidence Act 2011 states that a statement made by a person as to the cause of death, or as to any of the circumstances of the events which resulted in his death, in cases in which the cause of that person’s death comes into question is admissible where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hope of recovery. Section 40 (2) says that the said statement shall be admissible whatever may be the nature of the proceeding in which the cause of death comes into question. This provision is an apparent attempt at the codification of the common law doctrine of dying declaration.
A dying declaration is a statement made by a person who may die from injury received from a person whom the deceased person identified as the person who inflicted on him the injury that eventually caused his death. The conditions under which such statement is admissible under our Evidence Act are (i) the person who made the statement must have died before the statement, written or verbal, is tendered in evidence; (ii) the statement must relate to the cause of death of the person who made the statement; (iii) The statement is admissible in whatever proceeding in which the cause of death comes into question: it is not only relevant in a trial for murder or manslaughter of the maker of the statement; and (iv) the maker of the statement must believe himself to be in the danger of approaching death, though he may have hopes of recovery – Mome Garba & Ors Vs R (1959) SCNLR 402, Okoro Vs State (2007) 2 NWLR (Pt 1019) 530, Okoro Vs State (2012) 4 NWLR (Pt 1290) 351, Ezeugo Vs State (2013) 9 NWLR (Pt 1360) 508, Adamu Vs State (2014) LPELR 24025(CA), Orisadipe Vs State (2015) LPELR 41717(CA), Rev King Vs State (2016) 6 NWLR (Pt 1509) 529, Ezekwe Vs State (2018) 14 NWLR (Pt 1639) 209.
In other words, it is not a requirement under Section 40 of the Evidence Act that a declaration must be made in the extremity of death, when the maker was at the point of death and every hope of the world is gone. The maker of the statement need not have lost all hope of life or be in settled hopeless expectation of death for his statement to qualify as dying declaration under our Evidence Act; this is what distinguishes our law from the common law position – Orisadipe Vs State supra. There was thus no obligation under Section 40 of the Evidence Act on the Respondent to lead positive evidence to establish that the deceased was in the apprehension of an imminent death and evinced no hope of recovery before his statement can qualify as dying declaration. All that the Respondent needed to show by evidence was that the maker of the statement believed himself to be in the danger of approaching death at the time he made the statement.
The belief in the danger of approaching death is subjective and not objective. The person making the declaration must believe himself to be in danger of approaching death and it is not something that can be inferred from the opinion of third parties. In the case of Okoro Vs State (2012) 4 NWLR (Pt. 1290) 351 at 396 Paragraphs E-G Ngwuta, J.S.C. explained the point thus:
“I do not think that the law requires that an affidavit deposed to by the deceased before the Holy Sea to prove that the deceased is in a hopeless expectation of imminent death as a result of injuries inflicted on him. In order to actualize the dual aims of our criminal justice delivery system of ensuring that neither the guilty escapes punishment nor the innocent suffers, each case must be decided on its own peculiar facts and circumstance.
In this respect, the nature and gravity of the injury and the part of the body on which it is inflicted ought to be considered in determining whether what the deceased said in relation to the cause of his injury from which he died later was dying declaration or not. It should be necessary to prove by expression of the deceased, that he made the statement in fear of impending death. It could be inferred from the nature of the words or cause of death without further express evidence that the deceased believed he was dying.”
In other words, what is relevant is the state of mind of the deceased at the time he made the statement and which is inferable from the nature and gravity of the injury and the part of the body it was inflicted and the words used by the deceased. In the present case, the lower Court inferred the state of mind of the deceased from the location of the stab wound, in the chest cavity, the penetrating impact of the stab wound, the massive loss of blood and the fact that the deceased died less than one hour after the stabbing incident. It cannot be contested in these circumstances, that the finding of the lower Court that the statement made by the deceased to the third and fourth prosecution witnesses that it was the Appellant that stabbed him qualified as a dying declaration is incorrect.

Counsel to the Appellant also criticized the judgment of the lower Court for placing reliance on the further evidence given by the sixth prosecution witness when he was recalled. Counsel argued that the further oral evidence and the documentary evidence, Exhibit 2, tendered by the witness were not legally admissible evidence because the witness was not re-sworn and was merely reminded of his former oath when he was recalled to testify. This Court has read through the deliberations made by the lower Court in the judgment and cannot see anywhere therein where it made any reference to the further oral evidence given by the sixth prosecution witness when he was recalled and/or to the contents of Exhibit 2 in making its findings. The only reference made to the testimony of the sixth prosecution witness was to the evidence he gave under cross-examination when he originally testified. The further evidence of the sixth prosecution witness thus had no impact on and did not influence the findings of the lower Court. Therefore, the question of whether or not the further evidence, oral and documentary, given by the sixth prosecution witness when he was recalled was legally admissible or not is completely irrelevant in this appeal.

As stated earlier, the Respondent predicated its case against the Appellant on circumstantial evidence. 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.

In the instant case, the lower Court found as a fact from the evidence led that there existed some type of amorous or romantic relationship between deceased and the Appellant. The lower Court found that on the day of the incident the third and fourth prosecution witnesses escorted the deceased to the lodge where the Appellant resided and that while the third and fourth prosecution witnesses stayed at the bar of the lodge to have drinks, the deceased went inside to meet the Appellant in her room. The lower Court found that after a period of time the deceased called the third prosecution witness on the telephone and asked him to come as he and the Appellant were having problems about money. The lower Court found that when the third prosecution witness got to the room of the Appellant, the door was opened while the net door was closed with only the Appellant and the deceased in the room and that the Appellant was standing by the door with the deceased inside the room.

The lower Court found that the deceased then pushed the Appellant from the door and shouted to the third prosecution witness that the Appellant had stabbed him and whereupon the third prosecution witness forced the net door opened and brought out the deceased and the deceased showed him where the Appellant stabbed him. The lower Court found that the Appellant thereafter ran outside the room and was pursued by the third prosecution witness and this led to an affray which attracted the attention of the fourth prosecution witness. The lower Court found that when the fourth prosecution witness arrived at the scene, he saw the deceased struggling and people holding him and on enquiry as to what happened, the deceased informed the fourth prosecution witness that it was the Appellant that stabbed him. The lower Court found that the third and fourth prosecution witnesses rushed the deceased to the Aminu Kano Teaching Hospital where he was confirmed dead on arrival and that the cause of death was the stab wound to the chest of the deceased.

The above is the summary of the evidence of the third and fourth prosecution witnesses, supported by the evidence of the first and seventh prosecution witnesses and the medical report, Exhibit 1, and which evidence the lower Court, after thorough evaluation, found to be credible, cogent and reliable. The Appellant has failed to dislodge this finding of the lower Court in this appeal. The sixth prosecution witness was the Investigating Police Officer and he gave evidence in his original testimony, and not in his further evidence challenged by the Appellant, thus:
“… In the course of my preliminary investigation I found that the accused can be linked to the alleged offence because on our way to the hospital the accused did not know that the victim could have died from the misunderstanding between them. When we returned to the Police Station, my colleague Sgt Bashir Namani revealed the death to us. On hearing that the victim had died, the accused burst into tears and explained ‘Oh my God why did this happen to me? I did not know that this man will die’. Secondly, in her statement the accused person mentioned that both she and the deceased had a good romance until misunderstanding erupted as a result of payment following the deceased having sexual intercourse with her without condom.”

This evidence was not challenged, contradicted, disparaged or in any way discredited under cross examination. Now, it is settled law that the evidence of an Investigating Police Officer as to what he saw, heard and/or discovered during the course of his investigation is not hearsay and it is admissible evidence – Arogundare Vs State (2009) 6 NWLR (Pt. 1136) 165, Anyasodor Vs State (2018) 8 NWLR (Pt. 1620) 107, Brilla Energy Ltd Vs Federal Republic of Nigeria (2018) 16 NWLR (Pt. 1645) 305, Rowaye Vs Federal Republic of Nigeria (2018) 18 NWLR (Pt. 1650) 21. The above evidence of the sixth prosecution witness corroborated the evidence of the third prosecution witness that there was a dispute between the deceased and the Appellant over money and it also puts forward an inference of an oral confession of guilt by the Appellant. The law is that an oral confession carries no less weight than one made in writing; it is admission by conduct – Jua Vs State (2010) 4 NWLR (Pt. 1184) 217, Adamu Vs State (2014) LPELR 24025(CA), Dawai Vs State (2018) 5 NWLR (Pt. 1613) 499, Matthew Vs State (2018) 6 NWLR (Pt. 1616) 561.

When the facts as found by the lower Court are taken along with the evidence of the sixth prosecution witness, it is without doubt that the circumstances of this case point unequivocally, positively, unmistakably and irresistibly to the conclusion that it was the Appellant that stabbed the deceased. The finding of the lower Court that the Respondent led cogent evidence to prove the second ingredient of the offence of culpable homicide against the Appellant was correct.

This takes us to the third requirement of the offence of culpable homicide punishable with death which is – whether the Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. This is what is known as “specific intention” necessary for sustaining a murder charge. It is settled law that in order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused – Iden Vs State (1994) 8 NWLR (Pt. 365) 719. Thus, in Ejeka Vs State (2003) 7 NWLR (Pt. 819) 408, where the appellant stabbed the deceased with a jack knife at a fragile part of the body such as the heart, the Supreme Court held that this clearly explained that the appellant’s intention was to cause grievous injury to the deceased.
In the instant case, it cannot be contested that by inflicting a deep stab wound on the upper right chest of the deceased, the Appellant intended to cause the deceased grievous bodily harm. That could have been the only intention of the Appellant. It is the law that a person intends the natural consequences of his action and if there was an intention to cause grievous bodily harm and death results, then the defendant must be held culpable for the offence of murder – Nwokearu Vs State (2010) 15 NWLR (Pt. 1215) 1, Njoku Vs State (2013) 2 NWLR (Pt. 1339) 548, Afosi Vs State (2013) 13 NWLR (Pt. 1371) 329.

Counsel to the Appellant raised the possibility of the defences of provocation and self defence enuring to the benefit of the Appellant in the circumstances of this case. A read through the judgment shows that these defences were considered and rejected by the lower Court. The lower Court said thus:
“… The Court had a duty to consider every defence open to an accused person whether he raises it or not. The defence of self defence cannot be raised at large. The accused in raising this defence must show that there was reasonable apprehension of death or grievous harm and the only way to protect himself from both was to kill the assailant … I have soberly examined the totality of the evidence before the Court. I do not see any evidence remotely that support this defence in favour of the accused person.
From the evidence before the Court I do not see how the other defences of alibi, provocation, insanity, accident, mistake or even sudden fight under Section 222(4) of the Penal Code avail the accused person.”
The Appellant did not appeal against this finding. This Court has no business interfering with finding. The reference by Counsel to the Appellant to the possibility of the defences of self-defence and provocation being available to the Appellant in this appeal was thus mere wishful thinking.

This Court cannot fault the finding of the lower Court that the evidence led by the Respondent proved the third ingredient of the offence of culpable homicide – that the Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence – beyond reasonable doubt.

This Court finds and holds that the Respondent led credible evidence to establish the offence of culpable homicide against the Appellant beyond reasonable doubt. The second issue for determination in this appeal is thus also resolved in favour of the Respondent.

Issue Three
Whether the delivery of the judgment about nine months after the conclusion of final addresses of parties has not occasioned a miscarriage of justice on the Appellant.

In arguing the issue for determination, Counsel to the Appellant noted that the final addresses were concluded before the lower Court on the 18th of November, 2014 while judgment was delivered on the 10th of August, 2015 and stated that this was not in tandem with provision in Section 294 (1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) that judgment ought to be delivered within ninety days of conclusion of final addresses. Counsel conceded that for the dereliction to have traction, the complainant must, by the provisions of Section 294 (5) of the Constitution, show how the delay in delivering judgment occasioned a miscarriage a justice; i.e. the complainant must demonstrate that the delay robbed the Judge of the proper perspective of the evidence of the parties and he referred, amongst others, to the cases of Oto Vs Adojo (2003) 7 NWLR (Pt 820) 636 and Akoma Vs Osenwokwu (2015) All FWLR (Pt. 784) 27.

Counsel thereafter proceeded to highlight what he considered to be anomalies in the assessment of the evidence of the parties by the lower Court to show that the evaluation of evidence carried out did not bear the mark of freshness and that the delay in the delivery of the judgment thus affected the lower Court’s appreciation of the evidence led. Counsel stated that the lower Court misconstrued part of the evidence of the sixth prosecution witness, referred to the Appellant as a harlot and the scene of crime as a brothel contrary to the evidence of the fifth prosecution witness, misconstrued a statement, “I was totally dark”, used by the Appellant in her evidence, and was not aware that the third and fourth prosecution witnesses were initially charged along with the Appellant, before they were dropped from the charge and became prosecution witnesses. Counsel urged that based on these anomalies, this Court should find that the delay in the delivery of the judgment occasioned a miscarriage of justice to the Appellant and to thus resolve the third issue for determination in favour of the Appellant and set aside the judgment.

In response, Counsel to the Respondent referred to the case of Ogbu Vs State (2003) FWLR (Pt. 147) 1102 in reiterating that a complaint of delay in delivery of judgment will only get traction where it is shown that the delay occasioned a miscarriage a justice. Counsel stated that complaint of the Appellant that the delay in the delivery of judgment by the lower Court robbed the lower Court of proper perspective of the evidence of the parties was incorrect and that none of the highlighted anomalies had any effect on the judgment. Counsel stated that the Appellant has failed to show that without the alleged errors, the judgment of the lower Court would have been different and he referred to the case of Okoro Vs State (1998) NWLR (Pt. 504) 189. Counsel stated that the Appellant failed to show that there was a miscarriage of justice occasioned by the delay in the delivery of judgment and he urged the Court to resolve the third issue for determination in favour of the Respondent.

It is not in contest that the lower Court delivered its judgment outside the ninety days stipulated by Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria. It is trite that by a combined reading of the provisions of Sections 294 (1) and (5) of the Constitution, a party cannot seek to nullify a judgment of Court simply because it was delivered outside the ninety period allowed by the Constitution. The party must proceed further to show the miscarriage of justice he suffered by the reason thereof. Where there is a failure to so establish a miscarriage of justice, the Appellate Court will find it difficult to declare that judgment a nullity. In other words, the emphasis is not on the length of time simpliciter but on the effect it produced in the writing of the judgment – Ogundele Vs Fasu (1999) 12 NWLR (Pt. 632) 662, Atungwu Vs Ochekwu (2004) 17 NWLR (Pt. 901) 18, Dahiru Vs Kamale (2005) 9 NWLR (Pt. 929) 8, Savannah Bank of Nigeria Ltd Vs Starite Industries Overseas Corporation (2009) 8 NWLR (Pt. 1144) 491.
The acceptable criteria for whether there has been a miscarriage of justice by reason of delay in delivering a judgment appears to be that given by Oputa, JSC, in Dibiamaka Vs Osakwe (1989) 3 WLR (Pt. 107) 101, at page 114 where the learned Justice explained thus:
“And the law is that if inordinate delay between the end of trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impression made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an Appellate Court interfere. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”
The question that arises under this issue for determination, therefore, is whether the Appellant showed that the delay in the delivery of the judgment “apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impression made on him by the witnesses”? In other words, whether the Appellant showed the injustice or injury she suffered on the face of the records and which is traceable to the failure of the Court to deliver judgment within the statutory period – State Vs Kapine (2019) 18 NWLR (Pt. 1703) 1.
A read through the evaluation of evidence carried out by the lower Court shows that the alleged anomalies highlighted by the Counsel to the Appellant did not exist; the lower Court did not misconstrue any part of the evidence of the sixth prosecution witness and its description of the Appellant as a commercial sex worker and the scene of crime as a brothel was based on the evidence of the sixth prosecution witness. Even if they existed, the highlighted anomalies were in respect of peripheral matters which had no tangential relevance to the material and substantial findings made by the lower Court in coming to the decision convicting the Appellant for the offence charged. The evaluation of evidence carried out by the lower Court was comprehensive and exhaustive and the findings made thereon were plausible, reasonable and direct inferences from the evidence led. The Appellant woefully failed to show that she suffered any injustice or injury which is traceable to the failure of the Court to deliver judgment within the statutory period. The third issue for determination is resolved in favour of the Respondent.

In concluding this judgment, this Court considers it pertinent to comment on the quality of the briefs of arguments filed by the Counsel to the parties in this appeal. One of the invaluable assets that a Counsel must always possess is drafting skills. Briefs of arguments in an appeal contain the story of a party on which the Appellate Court Justices are called upon to adjudicate. Like all good stories, the arguments in the brief must flow; they must be consistent, they must the concise, they must be comprehensive, they must be comprehensible; and they must be accurate. Some of the eternal qualities of a good brief of arguments are brevity and precision. It must not be too short as to leave out the essentials and must not be too long as to become otiose – Nagebu Co (Nig) Ltd Vs Unity Bank Plc (2014) 7 NWLR (Pt. 1405) 42. The brief of arguments of Counsel to the Appellant was filled with a lot of energy, verve and erudition, but it was lacking in accuracy and precision as the bulk of the submissions therein were erected on incorrect positions of the law. The brief of arguments of the Counsel to the Respondent, on the hand, was lazy, lacking in energy, scanty, sketchy and lacking in depth and in the essentials for this appeal; Counsel did not do enough as a Respondent to defend the judgment of the lower Court.
The Court of Appeal, speaking on the necessary drafting skills a Counsel must possess, said in SCOA (Nig.) Plc Vs Danbatta (2002) 13 NWLR (Pt. 785) 461 at 472 C-F thus: “Drafting is an important tool in advocacy. A solicitor who could not present his client’s case clearly in the brief, if it is a case in the Appellate Courts, or in the pleadings, if it is a case before the High Court or Federal High Court, could not adequately represent the interest of his clients. An otherwise good case is destroyed and lost by bad pleadings, … Counsel should pay more attention to drafting as no counsel could be good and make marks in advocacy if he is poor in drafting mechanism.”

It is hoped that Counsel to the parties will heed these admonitions and strive to improve the quality of their briefs of arguments going forward.

This Court finds no merit in this appeal and it is hereby dismissed. The judgment of the High Court of Kano State delivered in Suit No K/136C/2011 by Honorable Justice P. A. Mahmoud on the 10th of August, 2015 and the conviction of and sentence passed on the Appellant therein are hereby affirmed. These shall be the orders of this Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have had a preview of the leading judgment of my learned brother Abiru JCA just delivered. He has thoroughly resolved the issues involved in this appeal. The trial judge evaluated the evidence led meticulously and arrived at the right decision. The challenge on the reliance by the trial Court, on the dying declaration of the deceased, was akin to clutching at straws. The deceased was stabbed with a sharp object to his chest, inflicting such a wound that resulted in a haemorragic shock. The nature of the wound and its resultant effect would no doubt cause an apprehension of death. Coupled with the fact that he was alone with her at the material time, it is understandable that he would want to disclose who was responsible for his wounds, especially as he was in such a critical condition. All circumstances lead to the conclusion that he made the dying declaration and the trial judge was perfectly in order, to rely upon it. This appeal has no merit and I also dismiss it and affirm the judgment of the trial Court delivered on 10th August 2015.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead judgment just delivered by my learned brother, HABEEB ADEWALE O. ABIRU JCA. I agree with his reasoning and conclusion that there is no merit in this appeal. I adopt same in dismissing the appeal and affirming the conviction and sentence of the appellant contained in the judgment of the lower Court delivered by Hon. Justice P. A. Mahmoud on 10/08/2015.

Appearances:

AbdulHafees D. Khalid with him, Kabir Yusuf, N. Hamisu and Abubakar Nuru Ahmad For Appellant(s)

Nura M. Fagge, Director Legal Drafting, with him, S. A Ma’aji, Director of Public Prosecution, MOJ Kano For Respondent(s)