TARKAA v. FRN (2022)

TARKAA v. FRN

(2022)LCN/16431(CA)

In The Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/A/402C/2017

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

SAMUEL TARKAA APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

WHETHER OR NOT THE PROSECUTION IS OBLIGATED TO CALL A HOST OF WITNESSES IN A CRIMINAL PROCEEDING

In criminal proceedings, the Prosecution is not under an obligation to call a horde of witnesses. All that it is required to do is to dislodge the presumption of innocence accorded the Accused under Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended and proving all the ingredients or elements of the offence or offences for which a Defendant is charged beyond reasonable doubt as provided in Section 135(1) of the Evidence Act beyond reasonable doubt.

Evidence of a sole witness where it’s positive, direct and fixed the Defendant with the commission of offence(s) charged will suffice.

See:-1. FRANCIS OMOSAYE VS THE STATE (2014) 10 NWLR (PART 1404) 484 AT 506H – 507 A where I. T. MUHAMMED, JSC now Ag. CJN said:-
“It is equally in tandem with our Constitution (Section 36(5) of the Constitution 1999 (as amended) which covers an accused with garment of presumption of innocence. The trial Court must at all times, presume a person innocent until proved guilty, the onus which rests on the shoulders of the prosecution.”
2. SEBASTIAN S. YONGO & ANOR VS. COP (1992) 8 NWLR (PT. 257) AT 50 G, KUTUGI, JSC (later CHIEF JUSTICE OF NIGERIA (Rtd) said:
“In criminal proceedings, the onus is always on the prosecution to establish the guilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.”
3. THE STATE VS JAMES GWANGWAN (2015) 9 SCM 253 AT 267H TO 268 A-B per OKORO JSC who said:
“It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. I need to emphasize that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See Yongo v. Commissioner of Police (1992) LPELR-3528 (SC), (1 992) 4 SCNJ 113, Ogundiyan v. State (1991) LPELR – 2333 (SC), (1991) 3 NWLR (Pt. 181) 519. Akibge v. IOG (1959) 4 FSC 203, Onubogu v. The State (1974) 9 SC 1 at 20, Babuga v. State (1996) LPELR – 701 (SC), (1996) 7 NWLR (Pt. 460) 297.” PER IGE, J.C.A.

ELEMENTS OF THE OFFENCE OF CULPABLE HOMICIDE

Now, what are the constituent elements or ingredients of Culpable Homicide punishable under Section 221 of the Penal Code Act Cap P3 LFN, 2004.
By the said Penal Code Act, an offence of Culpable Homicide punishable with death is committed when a person does an act with the intention of causing injury which is likely to cause the death of another human being or which to his knowledge may result in grievous bodily harm or death and yet embark on the dastardly act. I can do no better than to draw strength from the decisions of the apex Court in the land suffice to refer to the cases of:-
1. IREGU EJIMA HASSAN VS THE STATE (2017) 5 NWLR (PART 1557) 1 AT 33 G-H TO 34 A-D per RHODES-VIVOUR, JSC who said:-
Culpable homicide is defined in Section 220 of the Penal Code.
It reads:
“220. Whoever causes death-
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or

(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing such a rash or negligent act, commits the offence of culpable homicide.
In Smart v. State (2016) 1-2 SC (Pt. II) p. 41, (2016) 9 NWLR (Pt. 1518) 447 at page 479-480, paras. H-A, I explained proof beyond reasonable doubt thus:
“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”
To succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt.
(a) that the person the accused person is charged of killing actually died;
(b) that the deceased died as a result of the act of the accused person;
(c) that the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence.
See State v. John (2013) 1 NWLR (Pt. 1368) p. 337.”
2.SHUAIBU ABDU VS THE STATE (2017) 7 NWLR (PART 1564) 171 AT 186 D-E per SANUSI, JSC who said:-
“The charge the accused/appellant stood trial on is culpable homicide punishable with death, contrary to Section 221 (b) of the Penal Code. The ingredients of the offence that of necessity, must be proved by the prosecution in order to obtain conviction are:-
(a) That death of a human being was caused;
(b) That such death was caused by the accused person;
(c) That the act that led to the death of the victim was intended to cause death or grievous hurt or that the accused knew or had reason to believe that by his action, death will be the probable and not only likely consequence of his act.”
3. ABUBAKAR P. DAJO V THE STATE (2019) 2 NWLR (PART 1656) 281 AT 295H TO 296A-B per GALINJE, JSC who said:-
“Now, in order to prove the offence of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following ingredients:-
“1. That the death of a human being has taken place.
2. That such death was caused by the accused.
3. That the act that led to the death of the deceased was done with the intention of causing death or that the accused knew or had reason to believe that death would be the probable consequence of his act.
All the three ingredients must be proved conjunctively before a conviction can be secured. See Oguno v The State (2011) 7 NWLR (Pt. 1246) 314; Gira v The State (1996) 4 NWLR (Pt. 443) 375; Adava v. The State (2006) 9 NWLR (Pt. 984) 152; Akpa v. State (2007) 2 NWLR (Pt. 1019) 500; Uwagboe v. State(2007) 6 NWLR (Pt. 1031) 606.”
The ingredient of the offence must be proved to a hilt and cumulatively. PER IGE, J.C.A.

WAYS OF PROVING THE OFFENCE OF AN ACCUSED PERSON

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Federal Capital Territory delivered by HONOURABLE JUSTICE JUDE O. OKEKE on 25th January, 2016 wherein the Appellant was convicted of Offence of Culpable Homicide punishable with death under Section 221 of the Penal Code.

The Respondent had by an Amended Charge filed on 22nd October, 2013 arraigned the Appellant before the said Court of One Count Charge as follows:-
“COUNT ONE
“That you, Samuel Tarkaa, on the 24th day of November, 2010 at Kado village within the jurisdiction of this Honourable Court, caused the death of one Andrew Osuagwu, ‘M’ (now deceased) by doing an act with the intention of causing hurt to the said Andrew Osuagwu to wit hitting him with your fists, and thereby committed an offence contrary to Section 226 of the Penal Code Act, Cap. P3 Laws of the Federation of Nigeria, 2004.”

The Appellant pleaded not guilty to the Amended Charge on 21st day of October, 2014. The prosecution wasted a lot of time before the commencement of trial as it resorted into asking for adjournments for one reason or the other before the trial commenced on 31/7/2012. After calling PW1 and after his cross-examination, the Prosecution went into another round of slumber whereupon the lower Court was constrained in the interest of justice to foreclose the prosecution on 24th October, 2012. The Appellant thereafter made a no case submission which was overruled on 20/2/2013 and the Appellant entered upon his defence to the Charge.

The Prosecution came up with application to amend the Charge which as stated earlier was granted by the lower Court and the Appellant pleaded to it on 21/10/2014.

Thereafter, the Prosecution called four (4) additional witnesses while the Appellant was also granted leave to recall his witnesses. He called four (4) witnesses in all. After the adoption of Written Addresses of learned Counsel to the parties, the learned trial Court gave a considered judgment on 25th January, 2016 and found the Appellant guilty.

The learned trial Judge concluded his judgment on page 262 of the record as follows:-
“In the light of the above, the punishment for the offence of Culpable Homicide which the Defendant has been convicted of is mandatorily death sentence.

The Court does not have a discretion to impose any other punishment much as it may. The law must be fulfilled at all times and in all situations. The Defendant having been convicted for the offence of Culpable Homicide punishable under Section 221 of the Penal Code Act as charged is sentenced to death. The sentence of the Court upon you the Defendant is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul. You are reminded of your right of appeal.”

The Appellant was dissatisfied and has by his Notice of Appeal filed on 29th April, 2016 appealed to this Court on three grounds which with their particulars are as follows:-
“GROUND ONE:
“The learned trial Court erred in law in convicting the Appellant of crime of culpable homicide punishable with death when the prosecution failed to prove its case beyond reasonable doubt.
PARTICULARS
a) There are many irreconcilable and material inconsistencies and contradictions which cast irreconcilable doubts in the prosecution’s case which ought to have been resolved in favour of the Appellant. The learned trial Judge was wrong to have failed to resolve the doubts in favour of the Appellant.
b) It is crystal clear from the prosecution’s case, including the medical report (Exhibit “A”) that the death of the deceased was by “cardiac death from hypertensive heart disease” not by the Appellant.
c) The learned trial Judge was wrong to have refused to place reliance on the Medical Report (EXHIBIT “A”) tendered by the prosecution as proof of their case.
d) PW2 – PW4 cannot be said to be eye witnesses of truth in the circumstances of this case,
e) There is no credible direct/positive eye witnesses’ evidence and/or circumstantial evidence upon which the learned trial Court could safely convict the Appellant of culpable homicide punishable with death.
f) The prosecution failed to prove the ingredient of the offence, including mens rea, against the Appellant.
GROUND TWO
The learned trial Court erred in law when it failed to properly evaluate the evidence led at the trial and thereby resulting in miscarriage of justice,
PARTICULARS OF ERROR
a) There are other facts and circumstances in the case which lead to inference of innocence of the Appellant but which the learned trial Court failed to consider in its judgment.
b) Exhibit A – a medical report and documentary evidence – which was tendered by the prosecution and which cast serious doubt on the guilt of the Appellant and the entire prosecution’s case, was wrongly discountenanced by the learned trial Judge on the ground that the maker was not called as a witness.
c) The learned trial Judge was wrong to hold that the evidence of DW3, relating to the fingernail of the deceased, is hearsay when DW3 in his evidence actually testified that he saw the corpse himself and that the fingernail were not blue as claimed by the prosecution.
d) The learned trial Judge was wrong when he held that “It is apparent that the prosecution’s evidence regarding the fact that the death of the deceased resulted from the beatings given to him by, the Defendant are un-assailed having not been controverted by the Defendant and his witnesses” when in the face of the evidence adduced at the hearing, the Appellant clearly stated that he did not beat the deceased.
e) The learned trial Judge, in convicting the Appellant, wrongly attached probative value to, and relied heavily on, the extra-judicial statement (Exhibit D) of Mr. Abam James who was neither called as a witness nor cross-examined and no foundation was laid for the statement.
GROUND THREE
The decision of the trial Court is unwarranted, unsupported by any credible evidence and against the weight of evidence having regard to the evidence adduced.”

The Appellant filed his Brief of Argument dated 14th July, 2018 on 18th July, 2018.

By an application dated 16th September, 2020 and filed on 21st September, 2020, the Appellant prayed this Court for the hearing of his appeal on the Appellant’s Brief alone, the Respondent having failed to file Respondent’s Brief of Argument. The application was granted on 6th October, 2020.

This appeal was heard on 1st March, 2022 when the Learned Counsel to the Appellant NIVEN ALIYU O. MOMOH, ESQ., adopted the Appellant’s Brief of Argument.

The learned Counsel to the Appellant distilled an issue for determination of the appeal as follows:-
“Whether the Complainant/Respondent proved its case against the Accused/Appellant beyond reasonable doubt as required by law.”

Arguing the sole issue, the learned Counsel to the Appellant relied on Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended and Sections 131, 132 and 135 of the Evidence Act to submit that the Accused shall be presumed innocent until the Prosecution establishes his guilt and that the Prosecution must prove the Charge against the Defendant/Appellant beyond reasonable doubt. He relied on the cases of:-
1. THE STATE V JAMES GWANGWAN (2015) 28 WRN 1 AT 8;
2. OSUAGWU V THE STATE (2013) 5 NWLR (PART 1347) 386.

He reiterated that the Appellant was charged under Section 220 of Penal Code and he stated the ingredients of the offence. He submitted that the Prosecution did not establish the ingredients of the offence against the Appellant. He went through the evidence of the Prosecution Witnesses. He stated that the evidence of PW1 was hearsay and that the evidence of PW2 to the effect that Appellant hit the deceased head against the ground up to three times and also matchet his head but that his evidence did not establish that the Appellant killed the deceased in that the AUTOPSY REPORT Exhibit “A” stated that deceased had no injury on his head and that his evidence (PW2) was contradicted by PW3 who stated that he narrated what happened to the PW2 though PW3 said that the Appellant hit the deceased and he later fell on the floor and his tongue dart out. That PW4 and PW5 were also not at the scene of the crime. He submitted that the contradictions and inconsistencies in Prosecution’s enhancement negates the Charge against the Appellant. He submitted that the pieces of evidence cannot ground the Appellant’s conviction. He further stated that the learned trial Judge agreed on pages 256-257 of the record that the Autopsy Report stated the cause of death to be sudden cardiac death from hypertensive heart diseases but learned trial Judge held that it was not necessary to prove death vide the autopsy report.

He submitted that there was no direct evidence linking the Appellant to the death of the deceased. That the Accused denied “addition” added to his statement as not belonging to him. That the Police made an addition to his statement, Exhibit B but the lower Court did nothing about it. He urged the Court to hold that the judgment is wrong and perverse. He urge this Court to intervene and set aside the judgment of the lower Court.

In criminal proceedings, the Prosecution is not under an obligation to call a horde of witnesses. All that it is required to do is to dislodge the presumption of innocence accorded the Accused under Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended and proving all the ingredients or elements of the offence or offences for which a Defendant is charged beyond reasonable doubt as provided in Section 135(1) of the Evidence Act beyond reasonable doubt.

Evidence of a sole witness where it’s positive, direct and fixed the Defendant with the commission of offence(s) charged will suffice.

See:-

1. FRANCIS OMOSAYE VS THE STATE (2014) 10 NWLR (PART 1404) 484 AT 506H – 507 A where I. T. MUHAMMED, JSC now Ag. CJN said:-
“It is equally in tandem with our Constitution (Section 36(5) of the Constitution 1999 (as amended) which covers an accused with garment of presumption of innocence. The trial Court must at all times, presume a person innocent until proved guilty, the onus which rests on the shoulders of the prosecution.”
2. SEBASTIAN S. YONGO & ANOR VS. COP (1992) 8 NWLR (PT. 257) AT 50 G, KUTUGI, JSC (later CHIEF JUSTICE OF NIGERIA (Rtd) said:
“In criminal proceedings, the onus is always on the prosecution to establish the guilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.”
3. THE STATE VS JAMES GWANGWAN (2015) 9 SCM 253 AT 267H TO 268 A-B per OKORO JSC who said:
“It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. I need to emphasize that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See Yongo v. Commissioner of Police (1992) LPELR-3528 (SC), (1 992) 4 SCNJ 113, Ogundiyan v. State (1991) LPELR – 2333 (SC), (1991) 3 NWLR (Pt. 181) 519. Akibge v. IOG (1959) 4 FSC 203, Onubogu v. The State (1974) 9 SC 1 at 20, Babuga v. State (1996) LPELR – 701 (SC), (1996) 7 NWLR (Pt. 460) 297.”

Now, what are the constituent elements or ingredients of Culpable Homicide punishable under Section 221 of the Penal Code Act Cap P3 LFN, 2004.
By the said Penal Code Act, an offence of Culpable Homicide punishable with death is committed when a person does an act with the intention of causing injury which is likely to cause the death of another human being or which to his knowledge may result in grievous bodily harm or death and yet embark on the dastardly act. I can do no better than to draw strength from the decisions of the apex Court in the land suffice to refer to the cases of:-
1. IREGU EJIMA HASSAN VS THE STATE (2017) 5 NWLR (PART 1557) 1 AT 33 G-H TO 34 A-D per RHODES-VIVOUR, JSC who said:-
Culpable homicide is defined in Section 220 of the Penal Code.
It reads:
“220. Whoever causes death-
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or

The Court must ensure and ascertain that the Accused actually committed the offence for which he is arraigned which the Prosecution can prove in one or more of the following ways.
1. Evidence of eye-witness or witnesses;
2. Confessional statement of the Defendant/Accused person;
3. Through circumstantial evidence.
See:-
1. OKON ETIM AKPAN V THE STATE (2016) 8 SCM 1 AT 7 F-G per PETER-ODILI, JSC who said:-
“In reiteration of what is now trite to establish the culpability of an accused in proof of a crime, anyone of the following means is acceptable, that is:
Direct evidence also known as evidence of eye- witness or witnesses; Confessional statement of the accused person; Circumstantial evidence. See Emeka v State (2002) WRN 37 or (2002) 6 SCNJ 259.”
2. SHUAIBU ABDU VS THE STATE (2017) 7 NWLR (PART 1564) 171 AT 186 F – H per SANUSI, JSC who said:-
“In all criminal cases, the burden of proof squarely lies on the prosecution which always has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of such proof is nothing less than proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution such doubt shall be resolved in favour of the accused person. See Famakinwa v. The State (2013) 7 NWLR (Pt. 1354) 597; Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; David Abaje v. The State (1976) All NLR 139.
It is apposite to say that in order to prove an offence, the prosecution can use any of the following modes of proof namely:
(1) Evidence of eye witness or witnesses; or
(2) Confessional statement of the accused; or
(3) Through circumstantial evidence. “

The main contentions of the Appellant’s learned Counsel is that the lower Court relied on hearsay evidence, contradictions in the evidence of Prosecution Witnesses without taking into account the autopsy report Exhibit “A” which is glaringly in conflict with the evidence of the Prosecution.

I have gone through the evidence of the Prosecution Witnesses and I agree with the Learned Counsel to the Appellant that PW1, PW2, PW4 and PW5 were not at the scene of crime and did not witness the alleged beating meted out to the deceased by the Appellant.

PW3 had testified that the accused pummeled the deceased like panel beater and that when the deceased was trying to wear his shoes, the Appellant jacked him up and that the deceased fell on the floor “and hit his forehead to the floor. His tongue darted out.”

There was evidence that the deceased was taken to the Police Station alive while some accounts said he died in the hospital. See Evidence of PW1; EPPOKE ELLENG page 179 of the record. PW4 said he heard the deceased died the next day. PW5 said he initially was told that his brother, the deceased was unconscious and that he later received a call at 2 am that the deceased was dead. PW3 stated that he was the one who told the PW2 about the incident. It can be found on page 205 of the record that PW3 said he intimated MR ADESINA ADEBOWALE of what happened. PW1 on page 179 of the record line 7 said he was not there when the deceased was allegedly beaten by the Appellant. Exhibit A; the Autopsy Report was tendered by PW1 who also tendered Exhibit “B” the Statement of the Appellant made on 29/11/2010.

The learned Counsel to the Appellant submitted before the Court below that the Prosecution did not prove its case against the Appellant. In resolving the various aspect of the Appellant’s submissions at the lower Court, the lower Court said on pages 256-258 as follows:-
“Again, in the bid to impugn the case of the Prosecution, the learned Defence Counsel in his final Address referred to Exhibit A (i.e. the Autopsy Report) issued by the Garki Hospital Abuja and contended that despite the Prosecution witnesses evidence that the deceased was attacked on the head by the Defendant, the Report said there were no bruises on the head. He also urged the Court to take judicial notice of Police brutality to detainees in the cells to make a finding that the death of the deceased cannot be linked to the Defendant. That the Police has been economical with the truth as to how the deceased came about his death.
I have read the said Exhibit A over and over again. Part of it reads: –
“Medical report: Body of middle age man, with bruises on the medial aspect of the body, there is rib fracture, no bruises on the head, internal examination reveal left ventricular hypestrophy of scan, there is no myocindiac infraction, there is no skull fracture – scalp abscess seen.
I certify the cause of death in my opinion to be sudden cardiac death from Hypertensive heart diseases”.
It was then signed by the author and dated 14th December, 2010.
From the foregoing contents of Exhibit A and given the evidence of the Pw2 to Pw4 and given too that the maker of the Exhibit was not called to testify on it and accordingly was not cross-examined, can the Court rely on the exhibit to make a finding that the deceased died from causes other than the beating he received from the Defendant. It has been settled by the Courts in a long line of cases that in homicide cases, where the cause of death is obvious, medical evidence ceases to be of practical necessity. See: HARUNA V A-G FEDERATION (2012) 9 NWLR (PT. ) P. 419; BEN V STATE (2007) 16 NWLR (PT. 1006) P. 582; AIGUOREGHIAN V STATE (2004) 3 NWLR (PT. 860) P. 367, UGURU V STATE supra and ALARAPE V STATE (2001) 5 NWLR (PT. 705) P. 79.
In AIGUOREGHIAN V STATE supra, the Court made the point that cause of death can be proved by direct or circumstantial evidence. Where the Prosecution relies on direct evidence, such as the medical evidence of the doctor who performed a post mortem examination of the deceased, such medical evidence must be satisfactory and cogent in establishing the cause of the death. In homicide cases where the cause of death is obvious, medical evidence ceases to be of practical necessity. Where the deceased died almost immediately from the voluntary act of the accused, medical evidence will not be necessary. However, where the death occurred later, in this case after three months, and the medical evidence as to the cause of death and responsibility of the Applicants/Accused persons is uncertain and doubtful, then medical evidence as to the actual causes of death becomes a necessity and failure to produce same would be fatal to prosecution’s case. See also: BANDE V STATE (1976) ALL NLR P. 811.
In this case, the critical issue is whether or not the deceased died several days after the incidence and the cause of his death is uncertain so as to make reliance on Exhibit A inevitable. It is the evidence of the Prosecution witnesses that the Defendant inflicted the beatings on the deceased in the evening of 24th November, 2010 and they received the news of his death in the morning of the next day. The Dw3 did testify that on a date he could not remember, his sister called him on phone and told him the Defendant was in detention at the Life Camp Police Station. When he went there the next morning, the IPO informed him that the Defendant brought suspect to the station who later died. The Defendant himself under cross-examination said he could not give account of when the deceased died but that after bringing him to Life Camp Police Station on 24th November, 2010, he has not seen him again. The statement of Abam James in the Proof of Evidence admitted as Exhibit D on its part says the deceased died while taken unconscious to Maitama Hospital in the night of 24th November, 2010. These pieces of evidence, in my view point to the fact that the deceased did not die several days after the Defendant gave him the beatings and took him to the Life Camp Police Station but rather hours later.
This is made clearer by the Statement of Abam James and evidence of Pw1 (the Investigating Police Officer) whose evidence was essentially an account of what the Defendant told him and the steps he took in the investigation of the matter. He did say that the Defendant told him that he (the Defendant) handed over the deceased to the Inspector on duty at the Counter and left. The next day being 25th November, 2010, Police from Life Camp Station came to his house and arrested him on the ground that the man he brought to the station the previous day died and he ran away. He also confirmed that from his investigations the deceased died in the night of 24th November, 2010 on their (i.e. Police from Life Camp Police Station) way to the Garki General Hospital.
In the light of the foregoing pieces of evidence which indicate the deceased died, at most, hours (but not days) after he was beaten by the Defendant, the medical evidence (Exhibit A) is not of practical necessity in proving the cause of the death. I hold the respectful view that in the present circumstances in which there are direct and unequivocal evidence of Pw2 to Pw4 which show the deceased was on the fateful day severely beaten by the Defendant and the Statement of Abam James (Exhibit D) that he was brought in unconscious and died same night on the way to hospital, the need for medical evidence fades into insignificance in proof of the case of the death. The Report is therefore unavailing to the defence. “

I have myself examined Exhibit “A” the Autopsy Report part of which was reproduced on page 257 of the record and I have no doubt in my mind that the Autopsy Report is at variance with the offence charged and the particulars contained therein. The Amended Charge had earlier been reproduced in this judgment and one of the vital ingredients therein is that the Appellant caused the death of the deceased “one Andrew Osuagwu by lifting him up and hitting his head on the ground…”

The settled position of the law is that the Prosecution must prove the Charge against a Defendant as per the particulars contained in the Charge. The Autopsy Report Exhibit “A” is clearly at variance with the cause of death attributed to the Appellant. It means the Prosecution did not prove beyond reasonable doubt the cause of death of which the Appellant was accused of. See;
1. FRN VS. THOMAS ISEGHOHI (2019) 12 NWLR (PART 1685) 154 at 178 H TO 179 A-D per ODILI, JSC who said.
“Indeed, from the findings of the Court of Appeal and the ensuring conclusion what comes to light is that an accused person cannot be convicted on what he was not charged with and no evidence in support such as the case in hand where there was no count in the charge on misappropriation of funds or financial recklessness or mismanagement ineptitude. Rather the charge on Money Laundering and Advance Fee Fraud and while the elements of financial recklessness or misappropriation or management ineptitude were the evidence led by the prosecution and so it cannot be said the offences charged were made out for which a conviction can be secured, as the appellant’s counsel urges the Court to do. This goes against the grain of what this Court had stated in Abidoye v. FRN. (2014) 5 NWLR (Pt. 1399) 30 at 55-56 thus:- “Once a charge is laid, it is deemed that all the ingredients included in the particulars are needed to prove the charge and any ingredient omitted is not necessary. The prosecution cannot default in proving any ingredient included in the particulars of the offence charged, nor can he offer proof of an ingredient omitted in the particulars of the offences. Having considered what the Court below did in its findings and the conclusion and decision reached, there is no gainsaying that none of the ingredients of money laundering or advance fee fraud was proved by the prosecution and I acknowledge that the Court below was right in setting aside the decision of the trial Court and on its part upholding the no-case submission.”
2.PROF. BUKAR BABABE V. FRN(2019) 1 (1652) 100 AT 125 C – E per KEKERE EKUN, JSC who said:
“It must however be stressed that an accused person has no duty to prove his innocence. See: Adeniji v. The State (2001) 13 NWLR (Pt.730) 375; Isah v. The State (2017) LPELR-43472 AT 28-29, F-E; (2018) 8 NWLR (Pt. 1621) 346. His failure to testify, for example, cannot result in a conviction. The prosecution must adduce cogent and compelling evidence to discharge the burden of proving its case beyond reasonable doubt. Any doubt created in the mind of the Court must be resolved in favour of the accused person. See: Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349; Aiguoreghian v. The State (2004) 3 NWLR (Pt.860) 367; Adie v. The State (1980) NLR 323; Shehu v. The State (2010) 8 NWLR (Pt.1195) 112.
In order to establish the guilt of an accused person beyond reasonable doubt, the prosecution must prove all the essential elements of the offence or offences with which he is charged. The Court must be satisfied that the totality of the evidence led supports the particulars of the offence as charged. See: Alor v. The State (1997) 4 NWLR (Pt.501) 511; Nwaturuocha v. The State (2011) 6 NWLR (Pt. 1242) 170; Orji v. The State (2008) 10 NWLR (Pt.1094) 31; George v. F.R.N. (supra).”

The lower Court chose to down play the importance of Exhibit “A” without making any finding on it. Learned trial Judge relied on the evidence of PW2 and PW4 which have been adjudged to be hearsay along with evidence of PW3 to found that evidence of Prosecution proved that Appellant proved guilt of the Appellant.

The learned trial Judge also relied heavily on the extra-judicial statement of one Abam James; Exhibit “D” who was not called as a witness in the proceeding to find “and the statement of Abam James (Exhibit D that he was brought in unconscious and died same night on the way to the hospital, the need for medical evidence fades into insignificance in proof of the cause of death, the report is therefore unavailing to the defence.”

To my mind, the learned trial Judge relied on inadmissible evidence Exhibit “D” to ignore Exhibit “A”. This is not a case of failure of the Prosecution to tender medical report. The extra-judicial statement of a person to the Police cannot be utilized to prove the guilt of an Accused or Defendant. It can only be used to cross-examine a witness who gives contrary evidence to the statement he made to the Police in order to discredit such a person or witness and nothing more. See;
1.MUSA UMARU KASA V THE STATE (1994) LPELR-1671 (SC) PAGE 1 AT 98 B-C per UWAIS, JSC (later CJN Rtd.).
2. DANIEL KEKONG V THE STATE (2017) 18 NWLR (PART 1596) 108 AT 137 D-G per EKO, JSC who said:-
“Section 232 of Evidence Act, 2011 is intended to check the double-speak of a witness, who is prevaricating on an issue that he had made previous statement in writing on. There are essential requirements of the section that the party cross-examining a witness, who intends to impeach the credit of the witness by showing that what the witness is presently saying contradicts his previous statement in writing, must comply with. That is, (a) the attention of the witness must be specifically drawn to those parts or portions of his previous statement in writing which are to be used for the purpose of contradicting him; (b) the witness must be reminded of what he had stated in the previous statement, and (c) he must be given an opportunity of making explanation on the apparent contradictions. From the authoritative stance of this Court those are the templates the cross-examiner shall comply with before he tenders any previous statement in writing by a witness for the purpose of contradicting the witness and impeaching his credibility. See Madumere v. Okafor (1996) 4 NWLR (Pt. 5) 637; Amodu v. The State (2010) 2 NWLR (Pt. 1177) 47.”
3. ABBEY MATHEW V THE STATE (2019) 8 NWLR (PART 1675) 460 AT 476 per NWEZE, JSC who said:-
“Now, learned counsel for the respondent had contended that the only use to which a previous statement, allegedly made by a witness could be put is to contradict him (that is, the witness) during cross-examination. This is correct. In Madumere and Ors. v. Okafor and Ors (1996) 4 SCNJ 73; (1996) 4 NWLR (Pt.445) 637, this Court held (per Ogwuegbu, JSC,) that:
“A previous inconsistent statement can be put to a witness in cross-examination for the purpose of testing his credibility. The statement is not admissible for the purpose of proving the truth of its contents. The fact that the statement was made and is inconsistent with the witness’s testimony in the present proceeding is significant.” (Italics supplied for emphasis).
Other cases on this question include: Bayol v. Ahemba (1999) 10 NWLR (Pt.623) 381; Balogun v. A.G, Ogun State (2002) 6 NWLR (Pt.763) 512; Obiri v. State (1997) 7 NWLR (Pt. 513) 352; Kasa v. State (1994) 5 NWLR (Pt.344) 269; Romaine v. Romaine (1992) 4 NWLR (Pt. 238) 650.”
4. DANLADI MUSA V THE STATE (2013) LPELR 1 AT 80.
5. ITESHI ONWE VS THE STATE (1975) 1 ALL NLR (PT. 2) 16 AT 21 per FATAYI WILLIAMS, JSC later CJN Rtd. who said:
“There is one further matter to which we must refer. We noticed that during the course of his testimony, Ephraim Ochemba (5th P/W), the police constable who arrested the appellant and later took the written statement (Ex. D1) from him, was asked by the learned trial Judge whether he also took the statement of the 2nd P/W, the son of the appellant. To this question, the police constable replied-
“It was Sergeant Iwegbuna- I have the statement here.”
The statement was there and then tendered and admitted in evidence as Exhibit “F”. With respect, we think this procedure is highly irregular to say the least. The written statement of a prosecution witness is only relevant to the proceedings at which he gives evidence where the witness proves “adverse” or is shown to have made, at other times, a statement inconsistent with his present testimony. Such a statement is not evidenced against the accused with respect to the allegation it contains; it is relevant only as to the credibility of the witness (see R v. White (1924) 1 7 Cr. App. R. p. 60, and also Sections 208 and 209 of the Evidence Law of the East-Central State (Cap. 49). Dealing with the same point in The Queen v. Yesufu Akanni (1960) 5 F.S.C. 120 at page 123, where a statement made by a prosecution witness was tendered and admitted in evidence without any foundation being laid for its admission, the Federal Supreme Court observed-
“This document should never have been tendered or received in evidence. The only proper use to which it could have been put was the cross-examination on it of the witness, if he had said anything in his evidence which was contrary to what he had said to the Police. There was no suggestion that he had done so, nor was he in fact cross-examined on it at all. The statement, even if it had contradicted the witness’s evidence at the trial, could only have had the effect of discrediting that evidence: it would not have been any evidence of its own truth (Phipson, 9th ed. 503). The learned trial Judge, however, referred to the statement and apparently treated it as corroborating the witness. This, with respect, was an improper use to make of it.”
In the case in hand, not only was the statement (Ex. “F”) never put to the 2nd P/W when he was in the witness box, the learned trial Judge also made use of it in the judgment when he observed as follows:-
“According to the accused, the boy ran away after reporting to him that a thief was at the barn. In the opinion of the accused, the boy did not know what happened thereafter. This is also well borne out by the statement of the accused’s son to the police (Ex. “F”) which was made when the matter was very fresh in the boy’s mind. In the said statement, Alo Iteshi clearly said that he did not accompany his father when the father proceeded towards the back of the barn. I am satisfied that the accused spoke the truth that his son was nowhere near the scene.”
It is sufficient for us to say that the learned trial Judge was in error in admitting the statement in evidence as he did and also in making use of it.”
The above highlight ought to have been enlisted by the lower Court to resolve the doubts created in the Prosecution’s case in favour of the Appellant. See BABABE V FRN (SUPRA) PAGES 130 E-H TO 131 A-D.

The lone issue distilled for determination is hereby resolved in favour of the Appellant.

The Appellant’s appeal has merit. The Appellant’s appeal is hereby allowed.

The judgment of the High Court of the Federal Capital Territory delivered on 25/7/2016 IS HEREBY SET ASIDE.

In its stead, the Appellant IS HEREBY DISCHARGED AND ACQUITTED of the One Count Charge against him.

The Appellant shall forthwith be released from the Prison Custody/Correctional Centre.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance, a draft of the leading judgment just delivered by my noble lord, Peter Olabisi Ige JCA., and I am in complete agreement with the lucid reasoning and impeccable conclusion reached therein resolving the lone issue for determination in favor of the Appellant and thereby allowing the appeal and consequently, discharging and acquitting the Appellant on the count of culpable homicide.

My lords, I shall just say a word or two by way of my contribution to the rich analysis in the leading judgment. In law, the onus was squarely on the Respondent to prove the cause of death of the deceased and that the death of the deceased was caused by the intentional act of the Appellant. In other words, it must be shown not only that the deceased had died, but also that he died as a result of the act of the Appellant and which act or omission was done intentionally with the knowledge that death was the probable or likely consequence of the act.
By Exhibit A, which can be seen and read at page 257 of the Record of Appeal, there is no doubt whatsoever that the deceased Andrew Osuagwu had died. However, having proved that the deceased had died, the onus was still strictly on the Respondent to prove the cause of death of the deceased, since in law death per se is not a basis for prosecution for Culpable Homicide punishable with death unless it is proved that the death was caused by the act of the Accused intentionally with the knowledge that death was the probable consequence of the act or omission. What then was the cause of the death of the deceased?

In every prosecution for Culpable Homicide punishable with death, the cause of death is a very essential ingredient that must be established with cogent and positive evidence by the Prosecution, without which there would be no necessity for any further inquiry into who caused the death of the deceased. See Sule Ahmed (Alias Eza) V. The State (2002) All FWLR (Pt. 90) 1358 AT p. 1372. See also Ebong & Anor V. The State (2012) All FWLR (Pt. 633) 1945 AT pp. 966 -967; Sunday Omonuju V. The State (1976) 5 SC 1; Frank Onyenankeya V. The State (1964) NMLR 34.

My lords, the one million dollar question, on which the success or failure of this appeal would depend is namely; What caused the death of the deceased and did the Respondent prove with credible evidence that it was the Appellant’s act that caused the death of the deceased? Now from Exhibit A, the cause of death of the deceased was stated to be: Sudden Cardiac Death from Hypertensive heart Diseases” So, did the Respondent demonstrate by credible evidence how the Appellant had become the cause of the sudden cardiac arrest emanating from hypertensive heart diseases? Not a single piece of evidence was led in proof of these very vital cause of death to link it to the alleged act of the Appellant on hitting the deceased.

In law, once there is a disconnect between the cause of death and the alleged acts or omission of the Accused person, the offence of culpable homicide must fail. Indeed, this is not ascertaining of a mere tortious liability but criminal responsibility. It is only in ascertaining tortious liability, but certainly not criminal responsibility, that if an alleged tortfeasor inflicts injury on a victim and the ultimate harm is worse than what would normally be expected because the victim was more vulnerable due to some pre-existing injury or condition, then the tortfeasor would still be held responsible for the whole harm suffered. This is commonly referred to as the ‘eggshell skull rule’ in the law of torts – meaning you take your victim as you find him. See Vosburg V. Putney 1891) 50 NW 403.

A trial Court, like the Court below, being the master of the facts, must base its inferences, evaluation or assessment and findings on the available evidence adduced before it and therefore, if its findings must stand it must not be premised on extraneous facts or matters or conjectures outside the evidence given at the trial. In law therefore, the conviction of an Accused person must be supported and founded on credible evidence, which must be cogent and must not create room for speculation or doubt and if it does it is liable to be set aside on appeal. See Eiche Mendrick V. The State of Lagos (2018) LPELR-45549(CA) per Georgewill JCA. See also Emeka V. The State (2014) LPELR-34720 11 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220) 584; The State V. Musa Danjuma (1997) 3216 (SC) 1.

In law, conviction for any offence can only be secured based on proof by sufficient, credible and cogent evidence in satisfaction of all the essential elements of the offence charged, failing which an Accused person is entitled to be discharged and acquitted.

However, in proving the guilt of an Accused beyond reasonable doubt, and which does not impose on the Respondent any greater duty than it simply entails, namely; proof of all the essential ingredients of the offence charged beyond reasonable and not proof beyond all shadow of doubt or proof to the hilt. See Emmanuel Eke V. The State (2011) 200 LRCN 143 AT p. 149. See also Deriba V. State (2016) LPELR- 40345 (CA) per Georgewill JCA.

My lords, in a charge alleging the gravest of offences and carrying the death penalty upon conviction, the Respondent must prove by credible evidence the guilt of the Appellant beyond reasonable doubt as required by law under Section 135(1) of the Evidence Act, 2011.

In so doing, the clearest of evidence invoking neither doubt nor mere passion or compassion in the Judge is needed in proof of all offences, particularly offences which by law carries the capital punishment upon conviction. Thus, in law where such evidence is lacking, as in the case presented by the Respondent against the Appellant, it would even be immaterial that an Accused person gave unreliable evidence in his defense or that he prevaricated in his cross-examination or even that, he lied outrightly in his evidence. He is still entitled to an acquittal. This may sound harsh against the Respondent, and may not even be easily comprehended or appreciated by the untrained mind in the ways of the law, yet it is the law that even a lying Accused person against whom the Prosecution has not made out a case as would warrant his conviction is still entitled to an acquittal. It is the law! See Ajose V. FRN (2011) 6 NWLR (Pt. 1244) 465 AT p. 470.
My lords, while the guilty proved beyond reasonable doubt must be punished according to law, the innocent must be set free and not punished for no offence committed! The sentence of death upon conviction for culpable homicide punishable with death is not to be handed down carelessly, thoughtlessly and lackadaisically without clear evidence of the guilt of the Accused person. It is only to be passed when it is clear that the Accused person has been proved to have committed the offence alleged against him by the State beyond reasonable doubt. Indeed, the reasoning behind such a judgment sending a man to the gallows must be clear on the face of the judgment, and if I may add should be impeccable and the product of logical thinking and of sound legal deductions. See Felix Nwosu V. The State (1986) 5 NWLR (Pt. 348) 359, where Eso JSC., (God bless his soul) had waxed thus:
“A judgment sending a man to the gallows must be seen to be the product of logical thinking based upon admissible evidence which facts lead to conviction as clearly found and the legal deduction thereupon carefully made. It must not be allowed to stand if it is founded upon scraggy reasoning.”
My Lords, I find the conviction and sentence of the Appellant to death by the Court below on the paucity of the evidence led and which did not in any credible way link the Appellant to the commission of the alleged offences as very unfortunate. It is grossly perverse and cannot be allowed to stand. In this vein, I call to remembrance the evergreen words of Obaseki JSC., in Saidu V. The State (1982) 1 NLR 49 AT p. 67, poignantly and poetically capturing as it were the finer principle of law on the need for Courts to refrain from convicting and sentencing Accused person to Prison, much more to death, on evidence not proving their guilt beyond reasonable doubt thus;
“It does not give the Court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law, in our law Courts, they are entitled to walk about our streets and tread the Nigerian soil and breath the Nigerian air as free as innocent men and women.”
The Appellant is an innocent man, on the entirety of the evidence as led in the record of appeal and he is by law entitled to be discharged and acquitted and to be set free to regain and enjoy his freedom once again and to pick up the bits and pieces of his life, which had been unjustly and needlessly put on hold all the years he had languished in Prison custody while awaiting trial and later on death row awaiting the hang man noose over offences he did not commit. The Appellant having been found to be innocent, at least at this level of the hierarchy of Courts in this country, he is free to live once again. Free at last!

It is for the above few words of mine but for the fuller reasons adroitly marshalled out in the leading judgment that I too hold that the appeal has merit and ought to be allowed. I too hereby allow the appeal. I shall abide by the consequential orders made in the leading judgment.

ISAH BATURE GAFAI, J.C.A.: I have had a preview of the judgment delivered by my learned brother PETER OLABISI IGE, JCA. I agree entirely with the lucid reasonings expressed therein and the conclusion thereby reached. I adopt those reasonings as mine; by which I too find merit in this appeal. Accordingly, I too hereby set aside the lower Court’s conviction and sentence on the Accused/Appellant in Suit No. CR/38/2011 and in consequence also hereby discharge and acquit the Appellant.