SANI v. STATE (2020)

SANI v. STATE

(2020)LCN/15320(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/G/114C/2018

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

IBRAHIM SANI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

DEFINITION OF A PUBLIC DOCUMENT

A public document is defined by Section 102(a) of the Evidence Act to mean: (a) documents forming the acts or records of the acts – (i) of the sovereign authority, (ii) of the official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive whether of Nigeria or elsewhere; (b) public records kept in Nigeria of private documents – see Achini Ali vs. Amodu Omale Audu (2005) LPELR-11330 (CA) per Muhammad, JCA (as he then was (page 17, paras C – E). PER ABUNDAGA, J.C.A.

DEFINITION OF A PRIMARY EVIDENCE

What is primary evidence is defined in Section 86(1) of the Evidence Act, thus:
“Primary evidence means the document itself produced for inspection of the Court.”
Section 88 of the Evidence Act puts the admissibility of the original of a public document in a clearer perspective when it provides;
“Documents shall be proved by primary evidence except in the cases mentioned in this Act.”
In the case of John Babani Elias vs. FRN & Anor (2016) LPELR-40797 (CA), the Court held inter alia:
“Thus Section 102 of the Evidence Act (supra) sets out the categories of public documents. As indicated earlier, learned Counsel for the Appellant contended that only certified true copies of these categories of documents are admissible. Unarguably, this contention does not represent the position of the law on this point. Indeed, this submission stems from a superficial reading of Section 90(1)(C) of the Evidence Act, 2011. The judicial interpretation of the nuances of this provision is that the only pieces of secondary evidence of public documents that are admissible in respect of the original documents (of Course, original documents themselves are admissible) are certified true copies – (Iteogu vs. LPDC (2009) 17 NWLR (Pt. 1171) 614 at 634, Onobruchere vs. Esegine (1986) 1 NSCC 343 at 530). Put differently, in the absence of the original documents themselves, only such properly certified copies are admissible as secondary copies of public documents, and no other kind of secondary evidence…” per Sankey, JCA (pp. 60 – 62, paras c – b), see also the case of Olafisoye vs. FBN Plc (2012) LPELR-19685 (CA) per Nweze, JCA (as he then was) (p. 15 paras B – E). In the case of Habibu vs. State (2015) LPELR-260006 (CA) the Court held:
“On the contrary, several decisions of the Supreme Court abound that primary evidence of a public document is not only admissible in evidence but it is also the best admissible evidence of the document, see Onobruchere vs. Esegine (supra), Iteogu vs. LPDC (2009) 17 NWLR (Pt. 1171) 614 (SC), Daggash vs. Bulama (supra). Only recently the Supreme Court in PDP vs. INEC (2014) 17 NWLR (Pt. 1437) at p. 563 para B – C in no uncertain terms, unequivocally and tersely reaffirmed the law that:- “the only categories of public documents that are admissible are either the original document itself or, in the absence of such original, certified copies and no other.” Per Wambai, JCA (p. 21, paras B – F). PER ABUNDAGA, J.C.A.

HOW TO PROVE THE GUILT OF ANY ACCUSED PERSON

It is a well settled principle of law that in criminal trial, such as the instant one, the guilt of the accused can be proved in a number of at least three ways, viz (i) by the evidence of an eye witness to the commission of the crime; (ii) by circumstantial evidence; and (iii) by the Confessional Statement of the accused. See Anthony Omoruyi vs. The State (2014) LPELR-23222 (CA) per Saulawa, JCA (p. 67 paras A – D). PER ABUNDAGA, J.C.A.

INGREDIENTS TO SUSTAIN A CONVICTION

The charge against the appellant is abduction under Section 274(a) of the Penal Code, Laws of Borno State. The ingredients that must be proved in order to sustain a conviction are:
(a) That the accused compelled the person to go from the place in question;
(b) That he so compelled that person by means of force, or that he induced the person to do so by deceitful means.
(c) That he so abducted the person in question in order that:
(i) The person might be killed or
(ii) Such person might be so disposed of as to be put in danger of being killed. PER ABUNDAGA, J.C.A.

FEATURE OF CROSS-EXAMINATION

The law as stated in the case of Hon. Chidi Ibe & Anor vs. Hon. Raphael Nnanna Igbokwe & Ors (2012) LPELR-15351 (CA) is this:
“One characteristic feature of cross examination is to shake and diminish the credibility of the witness if he fails to offer credible explanation or answers. The law is clear, failure to cross examine on an issue is an admission. A party who wishes to show that the evidence given by the opposing party should be disregarded or disbelieved has the duty to demonstrate this by cross examination. See Omotola vs. State (2009) All FWLR (Pt. 464) 1490 and Akanmode vs. Dino (2009) All FWLR (Pt. 471) 929.” Per Abba Aji, JCA (as she then was) (p. 54, paras D – F). See further on this, Babalola & Ors vs. The State (1989) LPELR-695 (SC) per Nnameka-Agu, JSC (pp. 21 – 22, paras E – A), Amadi vs. Nwosu (1992) LPELR-442 (SC) per Nnameka-Agu, JSC (p. 20 paras A – C, Gaji & Ors vs. Paye (2003) LPELR-1300 (SC) per Edozie, JSC (p. 20 paras B – D). PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This appeal results from the Judgment of Borno State High Court in Suit No. BOHC/MG/CR/2017 delivered by Hon. Justice F. Umaru on 19/11/2017. The Judgment is predicated upon the trial of the appellant in a charge of abduction in order to commit culpable homicide under Section 274(a) of the Penal Code, Cap 102 Laws of Borno State of Nigeria; 1994. In a nutshell the appellant was alleged to have abducted one Ali Sule Balami; aged 81 years on or about the 20th day of February, 2016 in Maiduguri town between Giwa Barrack Gambole to Maiduguri Monday market. Consequent upon the Appellant’s plea of not guilty, the prosecution called five witnesses and tendered twelve exhibits.

The appellant as defendant testified in his defence, called two witnesses and tendered one exhibit. Upon the conclusion of trial, counsel to the appellant and the respondent respectively addressed the Court. In its Judgment, the trial Court found the appellant guilty of the offence, convicted him and sentenced him to 18 years imprisonment. Not satisfied with the Judgment, the appellant lodged his appeal to this Court vide his notice of appeal containing five grounds of appeal, the omnibus ground inclusive which was filed on 24/11/17. Upon the due compilation and transmission of the record of appeal on 16/3/18, which was deemed properly transmitted on 26/11/18 counsel filed their respective briefs of argument. The appellant’s brief of argument settled by I.T. Monguno, Esq. was filed on 20/12/18.

The Respondent’s brief of argument, settled by B. M. Umar, DDPP MOJ Borno State was filed on 22/6/20 and deemed properly filed and served on 9/7/20. The Appellant filed a reply brief of argument on 29/6/20 and deemed properly filed and served on 9/7/20. The briefs of argument were adopted on 9/7/20 at the hearing of the appeal.

The Appellant’s Counsel distilled three issues for determination in the appellant’s brief of argument. The issues are:
(1) Whether the trial Court was right when it relied on Exhibit “D” in convicting the appellant. (Distilled from grounds 1 and 2).
(2) Whether the trial Court was right when it came to the conclusion that the prosecution had proved the ingredients of the offence of abduction in order to commit culpable homicide. (Distilled from ground 3).
(3) Whether from the totality of the evidence adduced at the Trial Court, the Trial Court came to the right conclusion when it held that the prosecution proved its case by circumstantial evidence. (Distilled from ground 4).

On the Respondent’s part his Counsel formulated a lone issue in the Respondent’s brief of argument, which is;
“Whether the prosecution has proved her case beyond reasonable doubt by the circumstantial evidence adduced before the trial Court.”

The issues formulated by the respective Counsel are concise enough to determine this appeal. However, given the fact that a Court is empowered to reframe the issues submitted by the parties or frame entirely its own issues, for the determination of an appeal, I think that the issues formulated by the two Counsel can be put in a better perspective given my own view of the arguments canvassed in the briefs of argument. Flowing from the above, I hereby reframe the following issues for determination:
(1) Whether the trial Court was right when it admitted Exhibit D in evidence.
(2) Whether the trial Court was right in its findings that the prosecution proved its case against the Appellant beyond reasonable doubt and consequently convicting and sentencing him accordingly.
I will deal with the issues seriatim.

Issue one
Whether the trial Court was right when it admitted Exhibit D in evidence.
In arguing this issue, Counsel to the appellant made copious reference to the proceedings of the trial Court where the said Exhibit was sought to be admitted in evidence the defence Counsel’s objection and the ruling of the Court overruling the objection. Counsel refers the Court to page 13, lines 30 – 35 of the record, page 14 lines 5 – 10 of the record. Counsel also refers us to his submission on Exhibit D in the final address of defence Counsel. He specifically refers us to page 43 lines 15 – 25 of the record. He also refers us to the aspects of the trial Court’s Judgment where the trial Court disagreed with his submission on Exhibit D.

It is submitted for the appellant that the trial Court wrongly admitted Exhibit D in evidence and ascribed probative value to same in convicting and sentencing the appellant. Counsel points out that the original copy (that is Exhibit D) was signed by one Kankia A. S. Hussaini (MSI), a State Director of Department of State Services making him the maker thereof. That (Exhibit D) should have therefore been tendered through him but was instead tendered by PW1 who is not the maker. He refers us to page 13 lines 15 – 35 of the record. It is further submitted that by Section 83(1) (a) and (b) of the Evidence Act, 2011, it is imperative that a document should be tendered through its maker. It is further submitted that the principle of law that a document should be tendered through its maker received judicial blessing in the following cases – Lateef vs. FRN (2010) All FWLR (Pt. 539) 1171 at 1188 paras A – B, Alaito vs. Akintunde (2016) All FWLR (Pt. 855) 125 at 148.

Other cases also relied on by Counsel on the principle include Okereke vs. Umahi (incomplete citation) and Eze vs. State (2015) All FWLR (Pt. 811) 1394 at 1422 paras E – F.

It is further submitted that the testimony of PW4 and Exhibit D did not meet the requirement of Section 84 of the Evidence Act, 2011 because PW4 did not disclose the source of Exhibit D; referring to the holding of the lower Court, where the Court held:
“… That Section 84(4) of the Evidence Act is not applicable to Exhibit D as Exhibit D is a report. Section 84 of the Evidence Act deals with admissibility of statements produced by computer.”

It is submitted that the quoted portion of the Judgment is misconceived. Reference is made to Section 258(1) of the Evidence Act, 2011. Further referring the Court to some statements contained in Exhibit D, it is submitted that Exhibit D is computer generated evidence.

Further submits that Exhibit D and the testimony of PW4 were generated through the aid or interface of a device. That the procedure used in generating or compiling Exhibit D and testimony of PW4 was through device for storing and processing information as provided under Section 258(1) of the Evidence Act, 2011. Counsel further submits that having regard to the fact that Exhibit D and testimony of PW4 are computer generated evidence, both Exhibit D and the testimony of PW4 must fulfill the conditions laid down under Section 84 (2) & (4) of the Evidence Act, 2011. Counsel refers to Seriake Dickson vs. Timipre Sylva & Ors (2016) LPELR-41277 (SC).

It is submitted for the Respondent on issue one that admissibility is guided by relevancy and other factors, and not that a document must be tendered by the maker only. On the point that the most important factor for consideration of admissibility of a document is relevancy, the cases of Sadau vs. The State (1969) 1 All NLR 124, Oguonzee vs. State (1997) 8 NWLR (Pt. 518)518 are called in aid.

It is further submitted that in determining admissibility of evidence the Court will not consider how it was obtained but its relevance to the issue at stake. Cases in support of this submission are the cases of Igbinovia vs. The State (1981) SC 5, Elias vs. Disu (1962) SCNLR. Counsel further submits that in criminal cases the prosecution is not bound to call all witnesses, hence failure to call A. S. Hussaini Kankia D. G. of State Security Service is not fatal to its case, moreso that Exhibit D was addressed to PW1. That PW4 who was the maker of Exhibit “D” was called as witness, and identified Exhibit “D” and told the Court that he was the maker. It is further submitted for the Respondent that Exhibit D is the report of investigation submitted to the commissioner of police and is therefore admissible. Relied on for this submission is the case of Olabode vs. State (2009), unreported, Suit No. SC/29/2008. It is contended that the appellant’s submission that Exhibit D is hearsay evidence on the ground that PW1 is not the maker is not tenable. That in any case, the argument that Exhibit D is not admissible because of non – compliance with the condition laid down in Section 84 of the Evidence Act is an afterthought because the objection to Exhibit D at the lower Court was not based on Section 84 of the Evidence Act but on the ground that it was hearsay. Counsel argues in sum that by the totality of the evidence before the trial Court, Exhibit D has shown that the result produced by the machine was mathematically accurate since all those arrested, especially PW3 and the appellant gave a vivid history of what transpired with the victim’s handset which tallies with the analysis in Exhibit D.

In the reply brief, appellant’s Counsel appears to amplify his submission in the appellant’s brief of argument. He submits that it is trite law that relevancy is not the only yardstick for admissibility and cites in support the case of Suberu vs. The State (2010) All FWLR (Pt. 520) 1276 – 1277 paras H – A. He reiterates his submission that Exhibit D did not fulfill the requirements provided under Sections 83(1) (a) & (b) and 84 (2) & (4) of the Evidence Act. Counsel submits that the cases cited by Respondent’s Counsel are quite distinguishable from the facts of the instant case. He submits that the cases cited by Respondent’s Counsel bother on prejudicial and illegally obtained evidence while his argument herein bothers on wrongly admitted evidence, but that even if the crux of his argument bothers on prejudicial and illegally obtained evidence, the authorities cited have been repealed by Sections 14 and 15 of the Evidence Act, 2011. That an authority is only binding on a Court when it actually decides what is in issue before the Court. In aid, the case of Udo vs. The State (2016) LPELR-40721 (SC) is cited. That the facts of this case has nothing to do with prejudicial and illegally obtained evidence, and submits that it is purely within the purview of wrongly admitted evidence.

On the contention that the Appellant’s argument anchored on Section 84 of the Evidence Act is an afterthought, Counsel submits for the appellant that the crux of the appellant’s argument is that Exhibit D was wrongly admitted because Sections 83(2) (a)&(b) and 84(2) & (4) were not complied with in admitting Exhibit D in evidence and submits that a Court can expunge wrongly admitted evidence while delivering its Judgment. That the appellant timeously raised the issue of inadmissibility of Exhibit D based on Section 84 of the Evidence Act, 2011. He further cites Onochie vs. Odogwu (2006) All FWLR (Pt. 317) 544, (2006) 6 NWLR (Pt. 975) 65 in aid of his submission that the Court has power to expunge wrongly admitted evidence.

It is my candid view that the resolution of issue one should start with the Respondent’s argument that the appellant’s contention that Exhibit D is inadmissible because there was non – compliance with Section 84(2) of the Evidence Act is an afterthought. In other words, the Respondent’s Counsel submits that it was not raised at the trial Court, and the appellant’s Counsel insists that it was raised. Indeed, the submission of Respondent’s Counsel as captured in paragraph 4.17 (page 7) of the Respondent’s brief of argument is that the appellant raised the objection to Exhibit D at the address stage while Respondent’s Counsel submits that it was not raised at an appropriate stage.
In counsel’s express argument as captured in paragraph 16 (page 7) of the Respondent’s brief of argument, the argument that Exhibit D cannot be relied upon on ground that it does not comply with Section 84 of the Evidence Act is an afterthought as the Counsel who conducted the defence at the lower Court did not object to its admissibility based on Section 84 of the Evidence Act but on the ground of hearsay. I find as of fact that the appellant’s Counsel raised that issue in his final address before the trial Court. I refer to page 31 lines 27 – 35 of the record of appeal. Therein, Counsel argued inter alia:
“We submit that the testimony of PW1, PW2, PW4 and PW5 are relying on Exhibit D. The content of Exhibit D disclosed nothing but hearsay and did not meet the requirement of the law as provided by Section 84(4) of the Evidence Act…”
The trial Court considered this submission in its Judgment. In its Judgment the Court held in relation to the issue at page 51 lines 20 – 23 of the record of appeal thus:
“I must state that Section 84(4) of the Evidence Act is not applicable to Exhibit “D” as Exhibit “D” is a report. Section 84(4) of the Evidence Act deals with admissibility of statements in documents produced by computers.”
The purpose of raising that issue in Counsel’s final address as was done was to have the said Exhibit “D” expunged from the record on the ground that there was non – compliance with Section 84(4) of the Evidence Act, 2011 even though not specifically raised when same was tendered. As rightly submitted by the Appellant’s Counsel, it is trite law that a Court can expunge wrongly admitted evidence while delivering Judgment, and I should add, the Court can do this even if the wrongly admitted evidence was so admitted without objection. It is also trite law as rightly submitted by the appellant’s Counsel that the Court has power to expunge wrongly admitted evidence, even on appeal. See Onochie vs. Odogwu (2006) 6 NWLR (Pt. 975) 65.
The submission of appellant’s Counsel that the trial Court was wrong in admitting Exhibit “D” in evidence and placing reliance on it is anchored on non – compliance with the requirement of Section 83(1) (a) and (b) and Section 84(4) of the Evidence Act 2011. Counsel however points out that by Section 102(a) of the Evidence Act, 2011, Exhibit D is a public document. I have chosen to deal with the objections as it concerns Section 83(1) (a) and (b) and Section 84(4) of the Evidence Act, 2011 separately.
Exhibit “D” is the report of investigation carried out by the Directorate of State Security Service at the instance of the police. This can be seen in the evidence of PW1 (Inspector Sule Samaila, attached to the State Criminal Investigation and intelligence department, Maiduguri). He stated thus at page 13 of the record of appeal.
“Since the case involved mobile communications and we do not have tracking machine at the State CID Maiduguri, I sent a letter of investigation to the department of State Security Service Maiduguri where the case was transferred from to send us a mobile forensic investigation. The department of State Security Services conducted an investigation and sent us a report which is addressed to the Commissioner of police, Borno State Command, Maiduguri. The report was later handed to me as the IPO.”
Strictly speaking, exhibit “D” is not a forensic report but a report of the investigation by the police into the alleged abduction of an 81 year old man by name Ali Sule Balami. It is addressed to the “The Commissioner of police, Nigeria Police Force, State Headquarters Maiduguri Borno State.” It is titled “Preliminary investigation on abduction of an Eighty – one (81) year old man, Ali Sule Balami.”
It is dated 18th May, 2016, and bears the stamp of the Commissioner of Police, Police Maiduguri, Borno State indicating that it was received on 18th April, 2018. As rightly pointed out by the appellant’s Counsel, it is a public document going by the definition of public document in Section 102(a) of the Evidence Act, 2011. A public document is defined by Section 102(a) of the Evidence Act to mean: (a) documents forming the acts or records of the acts – (i) of the sovereign authority, (ii) of the official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive whether of Nigeria or elsewhere; (b) public records kept in Nigeria of private documents – see Achini Ali vs. Amodu Omale Audu (2005) LPELR-11330 (CA) per Muhammad, JCA (as he then was (page 17, paras C – E). Therefore, being a public document, its admission in evidence or otherwise is no longer strictly guided by Section 83(1) (a) and (b) of the Evidence Act, 2011 as contended by the appellant’s Counsel. Exhibit “D” is the original report. Section 85 of the Evidence Act provides that the contents of documents may be proved either by primary or secondary evidence. What is primary evidence is defined in Section 86(1) of the Evidence Act, thus:
“Primary evidence means the document itself produced for inspection of the Court.”
Section 88 of the Evidence Act puts the admissibility of the original of a public document in a clearer perspective when it provides;
“Documents shall be proved by primary evidence except in the cases mentioned in this Act.”
In the case of John Babani Elias vs. FRN & Anor (2016) LPELR-40797 (CA), the Court held inter alia:
“Thus Section 102 of the Evidence Act (supra) sets out the categories of public documents. As indicated earlier, learned Counsel for the Appellant contended that only certified true copies of these categories of documents are admissible. Unarguably, this contention does not represent the position of the law on this point. Indeed, this submission stems from a superficial reading of Section 90(1)(C) of the Evidence Act, 2011. The judicial interpretation of the nuances of this provision is that the only pieces of secondary evidence of public documents that are admissible in respect of the original documents (of Course, original documents themselves are admissible) are certified true copies – (Iteogu vs. LPDC (2009) 17 NWLR (Pt. 1171) 614 at 634, Onobruchere vs. Esegine (1986) 1 NSCC 343 at 530). Put differently, in the absence of the original documents themselves, only such properly certified copies are admissible as secondary copies of public documents, and no other kind of secondary evidence…” per Sankey, JCA (pp. 60 – 62, paras c – b), see also the case of Olafisoye vs. FBN Plc (2012) LPELR-19685 (CA) per Nweze, JCA (as he then was) (p. 15 paras B – E). In the case of Habibu vs. State (2015) LPELR-260006 (CA) the Court held:
“On the contrary, several decisions of the Supreme Court abound that primary evidence of a public document is not only admissible in evidence but it is also the best admissible evidence of the document, see Onobruchere vs. Esegine (supra), Iteogu vs. LPDC (2009) 17 NWLR (Pt. 1171) 614 (SC), Daggash vs. Bulama (supra). Only recently the Supreme Court in PDP vs. INEC (2014) 17 NWLR (Pt. 1437) at p. 563 para B – C in no uncertain terms, unequivocally and tersely reaffirmed the law that:- “the only categories of public documents that are admissible are either the original document itself or, in the absence of such original, certified copies and no other.” Per Wambai, JCA (p. 21, paras B – F).
It is therefore not difficult to hold that the appellant’s argument that Exhibit D is not admissible because it was not tendered by the maker is not tenable.
I will now proceed to consider the appellant Counsel’s contention that Exhibit “D” is inadmissible in evidence due to non – compliance with the requirement of Section 84(4) of the Evidence Act, 2011. The contention of Counsel is that the information contained in Exhibit “D” was electronically generated. Even though some contents of Exhibit “D” was obtained as a result of forensic examination of the sim cards of the various persons who used the mobile phone of the victim, Exhibit D states the result of the forensic analysis of the sim cards that were used as carried out by the agent of the State Security Service as recorded by him. Therefore the contents of Exhibit “D” was not produced by a computer. Section 84(1) of the Evidence Act, 2011 defines computer generated evidence as:
“84(1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this Section are satisfied in relation to the statement and computer in question.”
In the evidence of PW4 as located in page 20 of the record, he told the Court that Exhibit “D” is the preliminary investigation report which he prepared and was signed by his Director. That it is the same report that was sent to the GOC 7 Division and the Commissioner of Police, Borno State Command. This statement removes any suggestion or speculation that Exhibit “D” is a computer generated evidence. It is not, I hold.
However, it would seem sensible to argue that no probative value should be attached to Exhibit D in the absence of the report of the forensic analysis carried out on the sim cards used in the phone; which would require compliance with the provision of Section 84(2) and (4) of the Evidence Act, 2011. This is a different matter altogether. But as for Exhibit D, since it is not a document that was produced by computer, the argument that it is not admissible for non – compliance with Section 84(2) and (4) is without substance and lacks merit.
Issue one is therefore resolved in favour of the Respondent and against the appellant.

Issue two
Whether the trial Court was right when it came to the conclusion that the prosecution had proved the ingredients of the offence of abduction in order to commit culpable homicide. (Distilled from ground 3).
The submission of the appellant’s Counsel on issue two coalesce to this: That the lower Court was wrong in finding the appellant guilty of abduction based on circumstantial evidence; and faults the reliance of the trial Court on Exhibit “D” and the evidence of PW4.

It is contended for the appellant that none of the elements of the offence of abduction was proved by the Respondent.

It is a fact which cannot be disputed that in the instant appeal, the prosecution’s case is based fundamentally on circumstantial evidence. On the importance of circumstantial evidence in the proof of the commission of a crime, the Supreme Court, in the case of Mohammed & Anor vs. The State (2007) LPELR-1894 (SC) stated:
“A case is said to be proved beyond reasonable doubt either by direct oral evidence or by circumstantial evidence. Although witnesses can lie, circumstances cannot lie. Consequently, and in that sense, circumstantial evidence affords better proof beyond reasonable doubt. See Adio vs. The State (1986) 2 NWLR (Pt. 24) 581” per Tobi; JSC (p. 12 paras E – F).
Where there is no eye witness account or direct evidence of the commission of an offence, a conviction may be based on circumstantial evidence.
The category of evidence known as circumstantial evidence, which is more often than not the best evidence, is the evidence of surrounding circumstances, which by undersigned circumstances, is capable of proving a proposition with the accuracy of mathematics. The reason is not far-fetched. In their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person caused the act complained of. It means that there are circumstances which are accepted so as to make a complete and unbroken chain of evidence. Where such circumstances are established to the satisfaction of the Court they may be properly acted upon: see Ojo Esseyin vs. The State (2018) LPELR-44476 (SC), per Nweze, JSC (pp. 22 – 24, paras D – A).

As earlier stated, the Respondent’s case is based on circumstantial evidence as there is no direct evidence on any of the ingredients of the offence which I have set out above.

The task of this Court is to examine the circumstantial evidence adduced at the lower Court to satisfy itself that it meets the quality stated in the case of Ojo Esseyin vs The State (supra) to justify the conviction of the appellant by the trial Court.

I intend to begin with a consideration of the probative value to attach to the evidence of PW4 (Olushola Olugbenga Aguda) the detective from the Directorate of State Security Services, assigned to investigate the abduction. He was the first person who launched investigation into the case. He told the Court that the complaint of abduction of the complainant’s father was made on 29/3/2016. He gave the name of the complainant as Ezekiel Balami. That he informed him that on 29/3/2016 he made a call to his abducted father’s line and was informed by the person who answered the call that he was in Yenogoa, Bayelsa State. That he established through a tracking device that the line was actually domiciled in Maiduguri around the University of Maiduguri. He proceeded to give evidence of further forensic analysis and tracking device on the use of the victim’s phone by all those who came into contact with it leading to the arrest of the appellant. According to the witness, what enabled him to make the discoveries was the call Data record of the abducted person’s phone from which he observed that the last call to the line was by 2:03am on 21/2/16 and noted that the complainant informed him that the last call they made to the line was by 2:00am. On 21/2/16 he told the Court inter alia; that he observed from his analysis that about five to six lines used the handset of the missing person between 6:00am of 21/2/2016 and may, 2016. That the first line that used the phone of the missing person belong to corporal Ibrahim Sani and that was about 6:00am of 21/2/2016. The matters to which PW4 testified are reduced into the report, herein in evidence as Exhibit “D”. In his submission appellant’s Counsel referred the Court to paragraph 2 lines 6 – 7 of Exhibit “D” where it is stated:
“Consequently the command subjected the victim’s number to mobile Forensic investigation.”

Also referred to is the evidence of PW4 under cross examination where he testified thus;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>“I used tracking device to track the phone conversation between the accused and other persons.”

See page 20 lines 20 – 25 of the record. Counsel submits further that all the remaining part of Exhibit “D” was made vide the aforesaid mobile forensic investigation.

Based on the above Counsel submits that it is crystal clear that Exhibit “D” is computer generated evidence. While I do not accept Counsel’s contention that Exhibit “D” is a document produced by computer I must state that some aspects of the contents of Exhibit D is derived from forensic analysis of the sim cards used in the handset of the missing person, and phone calls made to the said handset. The aforesaid analysis was clearly carried out through the use of a computer within the meaning of Section 258(1) of the Evidence Act, 2011.
Therefore, some aspects of Exhibit “D” ought to have attached to it, the report of the forensic analysis which must be put in evidence in line with the requirement of Section 84(1) (2) and (4) of the Evidence Act, 2011. In my view, the absence of a report of forensic analysis in respect of those aspects renders the result of the discoveries based on the analysis of the sim cards used in the missing person’s handset and calls made to the said handset of little probative value, except perhaps, for matters expressly admitted by the appellant in his statement to the investigator (Exhibit A1); his evidence in his defence and of course, matters deemed admitted by him by reason of non-cross-examination of the prosecution witnesses on those matters.

In regards to important matters or facts in the evidence of the prosecution witnesses which the appellant did not cross examine the witnesses on, let me for instance, consider the evidence of PW4. In his evidence PW4 told the Court that the informant, Ezekiel Balami told him that his father left home on 20/2/2016 and they did not hear from him since then. That he was also informed that the last call made to his father’s line was at about 2:00am. On 21/2/16 he told the Court that his call Data record revealed that they (informant and his father) indeed spoke at about 2:03am. He told the Court that the first line that used the phone of the missing person belong to Corporal Ibrahim Sani (the appellant), and that was at about 6:00am, barely 4hours after the missing person spoke with his son. He further told the Court that the 2nd and 3rd lines that also used the handset belong to the same Corporal Ibrahim Sani. See page 18 of the record. As incriminating as these pieces of evidence are, the witness (PW4) was not cross examined on it. I refer to cross examination of PW4 on page 20 of the record. The effect of failure to cross examine a witness on a vital issue is that the person against whom the evidence is given is deemed to have admitted the correctness of the evidence. The law as stated in the case of Hon. Chidi Ibe & Anor vs. Hon. Raphael Nnanna Igbokwe & Ors (2012) LPELR-15351 (CA) is this:
“One characteristic feature of cross examination is to shake and diminish the credibility of the witness if he fails to offer credible explanation or answers. The law is clear, failure to cross examine on an issue is an admission. A party who wishes to show that the evidence given by the opposing party should be disregarded or disbelieved has the duty to demonstrate this by cross examination. See Omotola vs. State (2009) All FWLR (Pt. 464) 1490 and Akanmode vs. Dino (2009) All FWLR (Pt. 471) 929.” Per Abba Aji, JCA (as she then was) (p. 54, paras D – F). See further on this, Babalola & Ors vs. The State (1989) LPELR-695 (SC) per Nnameka-Agu, JSC (pp. 21 – 22, paras E – A), Amadi vs. Nwosu (1992) LPELR-442 (SC) per Nnameka-Agu, JSC (p. 20 paras A – C, Gaji & Ors vs. Paye (2003) LPELR-1300 (SC) per Edozie, JSC (p. 20 paras B – D).

The presumptive admission on the part of the appellant shows that soon after the father of the complainant went missing his handset was found in possession of the Appellant. The Appellant in his statement to the police (Exhibit A1) admitted that the phone (Exhibit B1) was in his possession, and that through him the handset passed through several hands. This includes his friends, namely Nura and Aisha, his girlfriend. The Appellant also stated that he bought it in Maiduguri town at post office GSM market. He stated that on his request, he went in the company of an army personnel handling the investigation into the case of alleged abduction twice in search of the vendor at the post office GSM market but could not find him.

I want to refer to the evidence of PW1 who told the Court that his evidence is not based on Exhibit “D”. To prop up the appellant’s defence that he bought the handset from the GSM market, Counsel tried to fault the IPO (PW1) for not taking the appellant to where he allegedly bought the phone by cross examining him to that effect. In answer to the questions PW1 explained why he could not take the appellant to where he allegedly bought the phone from. He gave three reasons. First, is that the appellant made a statement which he recorded by himself in which he stated that he was taken twice by the military police to the market but that he could not identify the person he bought the handset from. PW1 explained that he could not take the appellant round the market without knowing the specific area since the appellant told him that the person from whom he bought the handset did not have a shop at the GSM market. Secondly, the appellant did not provide the receipt to show that he bought the handset at the GSM market. Thirdly, that when he received the report from the State Security Service Department Maiduguri, it showed that the victim made his last call with one of his sons named Solomon Balami on 21/2/2016 at 2:02am while the appellant started using the victim’s handset by 6:06am on 21/2/2016, barely four hours after the victim’s last call. He further explained that there was a curfew at that time in Maiduguri and there was no market activities within those hours. He therefore concluded that the appellant did not buy the handset from where he claimed he bought it from.(Refer to the evidence of PW1 under cross examination on page 14 of the record of appeal).

Contrary to the claim of PW1 that his evidence is not based on Exhibit “D”, his third reason for not taking the appellant to the market where he alleged that he bought the handset from to locate the vendor is based on Exhibit “D” since he mentioned that it was upon the receipt of the report from the Department of State Security Services, on which I had earlier said should not be attached high probative value because the information on the calls on the phone is derived from forensic analysis of the phone, and yet no forensic report of those analysis is attached to Exhibit “D”. However, the evidence of PW2 (Solomon Ali Balami) a son to the victim is that the last call he made to his father on the phone (Exhibit B1) was on 21/2/2016 at about 2:00am. Thereafter, the line could not be accessed again despite repeated attempts. If this piece of evidence is juxtaposed with the appellant’s statement that he bought the phone sometime in February, 2016 in the afternoon at 2:30pm and that the first three sims used in the phone are his, one could see through the lie in the appellant’s claim that he bought the phone in the afternoon at about 2:30pm on a date he could not remember.

If by his evidence he suggests that he bought the phone on a date earlier than 20/2/16 when the victim was allegedly abducted, how come the same phone was used by the victim last on 21/2/16 at about 2:00am? Thereafter the victim was dispossessed of the phone which remained either in the actual possession of the appellant or his constructive possession by reason of the fact that all those persons who handled the phone after the victim was dispossessed of it came into its possession that was traced to the appellant.

The evidence of the appellant (as DW3) further demolished his defence. The evidence of DW1 (his witness) was no better for the appellant either. The appellant’s evidence is on pages 27, 29 – 30 of the record of appeal. That of DW1 is on pages 25 – 27 of the record.

What appears to be part of the appellant’s evidence in respect of the phone of the victim (Exhibit B1) reads thus at page 29 lines 9 – 14:
“… I told him that I gave away one phone when I went home in February and that I asked DW2 if he has a Nokia phone and that DW2 said he has none. I needed the small phone because I was at the University Gate and there was no electricity supply there. I went and bought the Nokia phone at post office and used it for about two months. I was transferred to Sector 8 Headquarters on 25th April, 2016.”

This piece of evidence appears to suggest that he bought a Nokia phone in February and used it for two (2) months. In effect he used the Nokia phone up to April. If the appellant bought any Nokia phone at all, it can’t be the Nokia phone that belongs to the victim that was last used by him on 21/2/2016 at 2:03am before he was dispossessed of it, and which was subsequently traced to the appellant, herein in evidence as Exhibit B1. It is evident that appellant is economical with the truth here.

The appellant told the Court that he could not remember the date he bought the phone, but stated that he took permission from his Guard Commander, who happens to be Staff Sergeant Ali Ibrahim on 20/2/2016 to be away from his duty post in order to go and purchase the phone. The appellant called the said Staff Sergeant Ali Ibrahim as a witness (DW1). The said DW1 told the Court that the appellant did not seek permission from him to go to anywhere on 20/2/2016. That he was not aware that the appellant went to the post office area to buy handset. He tendered the duty roster kept by him, and this was admitted in evidence as Exhibit “G”. This Exhibit to my mind is of no evidential value to the appellant’s case. Rather, it further proves the appellant to be a person to whom truth is not a virtue. The statement of the appellant that he bought the phone at the post office GSM market is further demolished by the evidence of PW2 (Solomon Ali Balami) and PW5 (Ezekiel Balami), both of them children of the victim, as to their successful calls to their father’s line in the month of March, 2016. Solomon Ali Balami whose evidence is located at pages 15 – 17 of the record of appeal testified that on 20/3/16 at about 2 – 2:30pm, his brother Ezekiel Balami asked him to call their father’s line, and when he did, the call went through but the network provider reported that the user was on another call, indicating that the user was in a conversation with another person. That he informed his brother accordingly. In his testimony (located at pages 21 – 24 of the record of appeal), PW5 told the Court that on 29/3/16 at about 2:00pm, he put a curious call to his father’s line and it went through and when he told the user that he wanted to speak to his father, the user informed him that it was not his father’s line, and that the line was his own, bought by him two months ago at Bayelsa State. PW5 told the Court that this development prompted him to report the abduction of his father to the Department of State Security Service, whose investigation traced the call and the phone to somewhere around University of Maiduguri, and the subsequent recovery of same, and its source ultimately traced to the appellant. The question that deserves an answer from no one else but the Appellant is, if he purchased the phone without a sim, how come a call made to the victim’s line on 29/3/16 in the same phone went through?

The evidence of PW2 and PW5 afore-stated was not discredited under cross-examination, as can be seen in the record of appeal.

No forensic report, properly tendered in evidence is required to establish that a call to the victim’s line on 29/3/16 went through, and that it was traced to one Jangashi, who came into possession of the victim’s phone through a chain of users traced to the Appellant.
I have analysed all the relevant pieces of evidence adduced at the trial Court. It is therefore appropriate to conclude.

Learned Counsel to the appellant submitted that throughout the length and breadth of the printed record of appeal, there is no scintilla of evidence indicating that the respondent proved any of the ingredients of the office. That it was therefore wrong for the trial Court to hold that the prosecution proved the offence of abduction in order to commit culpable homicide, against the accused person beyond reasonable doubt. It is further submitted that the failure of PW1 to investigate the assertion of the appellant that he purchased Exhibit B1 at the post office GSM market has destroyed the circumstantial evidence relied upon by the trial Court in convicting the appellant. I do not agree with this submission.

The entirety of the case of the Respondent is based on circumstantial evidence, which is not only one of the ways accepted by law in which the prosecution can establish the commission of an offence by an accused person, but the best. Therefore, what is pertinent in this appeal is whether the circumstantial evidence adduced at the trial Court meets the standard set down by law for conviction. The evidence has already been analysed in the course of this Judgment. What remains is the necessary inferences to be drawn from the evidence.
In regard to the submission of Appellant’s Counsel that the circumstantial evidence on which the conviction of the Appellant was based has been destroyed by the failure of PW1 to investigate the claim of the Appellant that he bought the victim’s phone (Exhibit B1) from the post office GSM market Maiduguri, I have elsewhere in this Judgment carefully analysed that claim and arrived at the firm conclusion that there was no justification for the PW1 to take the Appellant to the GSM market to locate the vendor based on the reasons given by the said PW1 which I have no reason to fault. In fact, I reached the far-reaching conclusion that there is no merit in the appellant’s claim that he bought the phone in the post office GSM market Maiduguri in February, 2016.
Now the irrefutable facts in this case in summary are as follows:
The victim, Ali Sule Balami, aged 81 years old disappeared on 20/2/2016. His last communication with his son, Solomon Ali Balami (PW1) on his handset later admitted in evidence as Exhibit B1 was on 21/2/2016 at about 2:03am. Thereafter, further calls to his phone could not be accessed. Subsequently as the evidence showed, the handset was used by the appellant on 21/2/16 at about 6:06am. The phone was subsequently traced through various people who came into possession of same to the appellant who claimed that he bought it sometime in February, 2016 at post office GSM market. He had no receipt to show for it and even when he was taken to the GSM market in the course of investigation by the military police since he is a member of the Nigeria Army, he could not produce the person who sold it to him. As could be seen in my minute details on the issue of appellant’s alleged purchase of the phone at post office GSM market there is no substance in that claim at all.
In the circumstances, all evidence point to no one else but the appellant to account for the disappearance of the victim, Ali Sule Balami. Special note must be taken of the fact that the victim’s phone which was used by the victim’s son at 2:03am on 21/2/2016 was used by the appellant at about 6:06am, the same day, just about 4hours after its use by the said Ali Sule Balami, who was never seen again, while the phone remained in the appellant’s actual or constructive possession up to the time it was recovered in the course of investigation into the alleged abduction of the victim. I had earlier referred to the case of Ojo Esseyin vs. The State (2018) LPELR-44476 (SC) per Nweze, JSC (pp. 22 – 24 paras D – A as to the quality of circumstantial evidence on which a Court can convict. I wish to further refer to the case of Ore-Ofe Adesina (Aka Alhaji) & Anor vs. The State (2012) LPELR-9722 (SC) in which the Supreme Court held:
“One piece of evidence, direct or circumstantial, if believed by the Court, will be sufficient to warrant conviction of the accused. Circumstantial evidence is often the best evidence. It is undersigned coincidence, which can prove the disputed point with mathematical accuracy. See Adio vs. The State (1980) 1- 2 SC 116, Ukorah vs. the State (1977) 4 SC 167. It is not the quantity but the quality that matters and one piece of circumstantial evidence which is found by the trial Court to be cogent, complete and unequivocal, compelling and irresistible will be sufficient to warrant a conviction.” per Ngwuta, JSC (pp. 28 – 29, paras D – A). See also Nasamu vs. The State (1979) LPELR-1941 (SC) per Eso, JSC (pp. 10 – 11) paras F – B), Lori & Anor vs. State (1980) LPELR-1794 (SC), per Nnamani, JSC (pp. 8 – 9, paras E – D).
The circumstantial evidence in this case points irresistibly, unequivocally and conclusively to the appellant, and no one else as being responsible for the disappearance of Ali Sule Balami on or about the 20th February, 2016. I like to also point out that even though the law remains settled that the burden firmly is on the prosecution to prove the guilt of the accused person beyond reasonable doubt, the law is also established that it is the duty of the accused person to establish or prove facts within his exclusive knowledge. See Section 140 of the Evidence Act, 2011. In the case of Yakubu vs. State (2014) LPELR-22401 (SC) the apex Court held:
“Although the prosecution has the burden of establishing its case against the accused person beyond reasonable doubt and the accused has no duty to prove his innocence, he nonetheless has a duty to adduce evidence in support of facts that are strictly within his knowledge. See Section 140 of the Evidence Act, 2011.” Per Kekerun-Ekun, JSC (pp. 14 – 15, paras G – B). See also Feyisayo Alatise vs. The State (2012) LPELR-9469 (CA) per Kekere-ekun, JCA (as she then was) (p. 32 paras E – G).
The appellant’s claim that he bought the victim’s phone (Exhibit B1) found in his possession, soon after the victim went missing is completely devoid of substance. This therefore leaves him with the burden to account for the victim’s whereabout, failing which he cannot absolve himself of the charge for which he was convicted.
In sum, I resolve issue two in favour of the Respondent and against the Appellant.

Now, in my consideration of issue one, I resolved it against the appellant but observed that the information contained in Exhibit “D” majorly contains result of forensic analysis carried out on the phone (Exhibit B1) and the sim cards used in the said Exhibit B1 and calls made to the said phone. I expressed the view that a forensic report of the said analysis should have been attached to Exhibit “D” in compliance Section 84(1), (2) and (4) of the Evidence Act, 2011, and that in the absence of the report of the forensic analysis attached to Exhibit D, Exhibit D should not be accorded high probative value in regard to relevant aspects of the said Exhibit “D”. Similarly, I also observed that a substantial portion of evidence of PW4 is based on the afore-said forensic analysis and therefore needed to be supported with a report of the forensic analysis, but was not, and must also be accorded little probative value.
However, there is sufficient legally admissible evidence on record, which I have considered in the course of this Judgment to support the correctness of the conviction of the appellant, and thus the Judgment of the trial Court cannot be faulted because of the inconsequential errors pointed out by the appellant’s Counsel as above. This is because an appellate Court is only concerned with whether the Judgment appealed is right or wrong, not whether the reasons are. Where the Judgment of the Court is right but the reasons are wrong the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere. See the case of Davis vs. NDIC & Ors (2014) LPELR-23768 (CA) per Ige, JCA, (pp. 39 – 40, paras F – B), see also Afrocats Nig. Co. Ltd & Anor vs. Skye Bank Plc & Anor (2017) LPELR-43397 (CA) per Ekpe, JCA, (pp. 26 – 27, paras E – A.,) N.I.I.A vs. Ayanfalu (2006) LPELR-5960 (CA) per Agbo, JCA (p. 10, paras B – D).

Having resolved the two issues against the appellant, the inevitable conclusion to arrive at is that the appeal is devoid of merit. Consequently, it is dismissed. In the result, the conviction of the appellant as contained in the Judgment of Hon. Justice F. Umaru delivered on 19th November, 2017 is hereby affirmed.

JUMMAI HANNATU SANKEY, J.C.A.: I have read before now the draft of the Judgment just delivered by my learned brother, Abundaga, J.C.A.

Therein, my lord upon an appraisal of the Judgment of the High Court of Bornu State in relation to the charge of abduction, affirmed the Judgment and dismissed the Appeal.

I agree that Exhibit D, a report on the investigation carried out by the Police is both a public document and an original copy. Therefore its admissibility in evidence is governed by Sections 102(a) and 88 of the Evidence Act, 2011, and same was rightly admitted in evidence by the trial Court.

It is evident from the facts of the case that the evidence presented in proof of the charge of the abduction of the 81 year old man was largely circumstantial. For such circumstantial evidence to support a conviction in a criminal trial of this nature, it must be cogent, complete and unequivocal. Indeed, it must be so compelling and be of such character that it leads to the irresistible conclusion that it is the accused person and no other, that committed the offence charged. The narration of facts which constitute the basis of the circumstantial evidence must be incompatible with the innocence of the accused and must be incapable of proffering any explanation or of any reasonable hypothesis than that of the guilt of the accused. Arguably, circumstantial evidence is often the best evidence in establishing the truth of criminal cases such as this -Dada V State (2019) LPELR-48454(CA); Odogwu V State (2013) LPELR-42802(SC) 64-66; State V Anibijuwon (2011) LPELR-8804(CA) 40-41.
The circumstantial evidence adduced in the instant case through five (5) witnesses and twelve (12) exhibits points irresistibly to the Appellant as being responsible for the disappearance of the 81 year old man, Ali Sule Balami on or about February 20, 2016, having come into possession of his GSM handset very shortly after the abduction and it remained in his possession right until it was recovered in the course of investigation. The explanation by the Appellant as to how he came by the phone was nothing but a sham defence and was rightly jettisoned by the trial Court.

This is the summary of the appraisal of the Judgment of the trial Court by my learned brother.
I agree with his reasoning and conclusion and abide by the final Orders made therein.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of a preview of the lead Judgment read by my learned brother, JAMES GAMBO ABUNDAGA, JCA. I agree entirely with the reasoning and conclusion reached therein.

In consequence, I also find the Appeal unmeritorious and is hereby dismissed. I affirm and uphold the Judgment, conviction and sentence of the High Court of Justice, Borno State in Suit No. BOHC/MG/CR/2017 delivered on November, 19th 2017 by Hon. Justice F. Umaru.

Appearances:

T. Monguno, Esq. For Appellant(s)

M. Umar DDPP, Ministry of Justice, Borno State For Respondent(s)