TUKUR HALILU v. THE STATE
(2016)LCN/8262(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2016
CA/K/402/C/2014
RATIO
PRACTICE AND PROCEDURE: WHETHER THE FAILURE OF THE DEFENCE COUNSEL TO WRITE A WRITTEN ADDRESS AND THE FAILURE OF THE TRIAL JUDGE TO SECURE ALTERNATIVE COUNSEL FOR THE PURPOSE OF FILING A WRITTEN ADDRESS RESULTED IN A BREACH OF FAIR HEARING.
In the case of Josiah v. State (1985) 1 NWLR Part 1 page 125, cited by the Appellant’s Counsel, the Supreme Court, per Oputa JSC at 140-141, Para F-A had the following to say:
‘A fair hearing presupposes first and foremost a hearing. We operate the “Adversary System”?. The major feature of this system is the passive and inactive role of the judge in the presentation of cases in Court. The judge under our system is at best an attentive listener to all that is said on both sides. He is not on investigator. He speaks mainly to deliver judgments. This passive role of the judge emphasises the active role of counsel for the prosecution and for the defence. What is a “hearing” worth to on accused person who does not understand this language of the Court, who does not know the rules of procedure, and who cannot properly present his case? The right to counsel is thus at the very root of, and is the necessary foundation for a fair hearing in, ordinary layman, even the intelligent and educated layman is not skilled in the science of law and he therefore needs the aid and advice of counsel. It is because of this need that, in capital offences, attracting the death penalty, the accused is not left undefended. If he cannot afford the services of counsel the State assigns one to him. It is surprising that none was assigned to the appellant in the Court of first instance. It is even more surprising that when the appellant himself. (though not a lawyer) raised this point in his 1st Ground of Appeal 10 the Court below, nobody look it up. A fair hearing in cases coming under Rules of the Robbery and Firearms Tribunal (Procedure) Rules like the one on appeal. (where Rule 5 makes the services of a legal practitioner mandatory), must include the right to and the aid of counsel for the defence. This was denied the appellant in this case. I am satisfied that the appellant had no fair hearing in the trial Court. This coupled with the non-compliance with the provisions of Section 287 of the Criminal Procedure Law by the trial judge vitiate the trial and makes it mandatory that this appeal should be allowed”
It was similarly held in the case of Udo v State (1988) 3 NWLR Part 82 page 316 at 332 Para B-C, per Nnameka-Agu JSC also cited by the Appellant’s Counsel, per Nnaemeka Agu JSC that it is “implicit in the concept of fair hearing as on respect of natural justice in the broad sense that the Court should give equal opportunities to both sides of the conflict. A murder trial cannot be said to be fair when an accused, standing trial for his life, has to conduct the case himself as against a legal practitioner, for the prosecution.” per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
THE DEFENCE OF ALIBI: WHICH PARTY HAS THE ONUS OF ESTABLISHING ALIBI
The onus of establishing alibi is on the accused person since it is a matter within his personal knowledge. The defence of alibi would succeed if at the earliest opportunity such a defence is raised, with sufficient particulars to enable the police investigate it – Abubakar Mohammed v State (2015) 10 NWLR part 1468 Page 496 at 524 Para A-C per Rhodes-Vivour JSC
As held in the case of Osuagwu v State (2013) 5 NWLR Part 1347 Page 360 at 383 Para F-H per Rhodes-Vivour JSC:
“After a suspect is arrested, Police investigation commences with the suspect. He is asked under caution to write a statement. This is the earliest opportunity o suspect has to explain or raise the defence of Alibi. He must state in clear terms, the day time and address of where he was when the Police alleged that he committed the offence. In court an accused person who sets up the defence of alibi, evidence led by the accused person must be taken seriously. The onus is not on the accused person to establish alibi to the satisfaction of the Court but for the prosecution to disprove it..” Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt – Abubakar Mohammed v. State (2015) 10 NWLR Part 1468 Page 496 at 524 Para A-C per Rhodes-Vivour JSC; The defence of alibi would, however crumble where there is stronger evidence against it, for example if the prosecution leads credible and accepted evidence which fixes the accused person at the scene of the crime at the material time. See Abubakar Mohammed v State Supra at 524 Para C per Rhodes-Vivour JSC; Osuagwu v State (2013) 5 NWLR Part 1347 Page 360 at 383 para H per Rhodes-Vivour JSC:
The law is that where the evidence of the prosecution, positively, unequivocally and irresistibly points to the guilt of the Appellants, the defence of alibi becomes of no moment. See Sampson Ebenehi & Anor v The State (2009) 6 NWLR Part 1138 Page 431 at 448 para A per Ogbuagu JSC. Failure by the Police to investigate and check the reliability of (the) alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of a conviction imposed in disregard of this requirement. The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi -Egwumi v State (2013) 13 NWLR part 1372 page 525 at 548 Para E-H per Rhodes-Vivour JSC.
As, however, held by His Lordship Niki Tobi JSC in Ochemaje v State (2008) 15 NWLR Part 109 Page 57 at Page 90 Para G “investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witnesses or under cross-examination by the evidence of the accused or his witnesses.” per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
THE DEFENCE OF ALIBI: WHAT THE ACCUSED MUST PROOF TO SUCCEED IN THE DEFENCE OF ALIBI
To succeed in such a defence that may lead to an acquittal, the accused must support and substantiate the defence with “unassailable credible evidence that is not riddled with holes” – Ochemaje v State Supra at 93 Para H per Mukhtar JSC (as she then was).
Where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty to investigate the alibi. In such a case, no alibi is established. Also, the ipse dixit of the accused, i.e. that he was not present, is not enough. To raise the defence he must give particulars of his whereabouts at that particular time. Where the accused is however identified by eye witnesses, a straight case of credibility is involved. See Olaiya v State (2010) 3 NWLR Part 1181 Page 423 at 435 Para B-H per Mahmud Mohammed JSC (as he then was); Silas Sule Mohammed v state (2014) 12 NWLR part 1421 at page 387 at 430 Para B-H per Kekere-Ekun JSC. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
EVIDENCE: BURDEN AND STANDARD OF PROOF; MEANS OF PROOF OF THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT
Proof of the guilt of the accused beyond reasonable doubt can be by means of:
1. The confessional statement of the accused;
2. Circumstantial evidence; or by
3. Evidence of eye witnesses
See Ali v state (2015) 10 NMLR Part 1466 page 1 at 24 para A-B per Clara Ogunbiyi JSC; Haruna v A/G Federation (2012) 9 NWLR part 1306 page 419 at 445 Para B-C per Adekeye JSC; Igabele v State (2006) 6 NWLR Part 975 page 100 at 120-121 Para H-A per Onu JSC. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
THE PENAL CODE: WHAT MUST BE PROVED FOR CULPABLE MURDER TO BE PUNISHABLE BY DEATH ACCORDING TO THE PENAL CODE
By Section 221 of the Penal Code, for culpable homicide to be punishable with death, the following must be proved:
(a)That the death of a human being actually took place;
(b) That such death was caused by the accused; and
(c) That the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.
All these ingredients must be proved or co-exist before a conviction can be secured. Failure to establish any of the ingredients will result in an acquittal. See Haruna v A. G. Federation (2012) 1 NWLR Part 1306 Page 419 at 444-445 para G-A per Adekeye JSC; Ali v State (2015) 10 NWLR Part 1466 page 1 at 23-24 per Ogunbiyi JSC. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
COURT: SITUATION WHERE AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF A TRIAL COURT
It is settled law that evaluation of evidence and ascription of probative value are the primary function of the trial Court which heard and watched the witnesses testify. An appellate Court will not ordinarily interfere with the findings of a trial Court unless in special or exceptional circumstances, such as where the finding of the trial Court is not supported by the evidence or is otherwise perverse or where the trial Court has not made full use of the opportunity of watching the demeanor of the witnesses etc. See Civil Design Construction (Nig) Ltd v SCOA (Nig.) Ltd. (2007) 6 NWLR Part 1030 300 at 339-340 para H-B per Onnoghen JSC. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
APPEAL: WHETHER FINDINGS THAT ARE BORNE OUT OF CREDIBLE EVIDENCE CAN BE DISTURBED BY AN APPELLATE COURT
The law is trite that findings that are borne out of credible evidence must not be disturbed by an appellate Court, and an appellate Court will not ordinarily interfere with such findings unless they are perverse or not supported by credible evidence. Consequently where evidence is properly evaluated i.e. to say when all the principles of law relevant are properly considered, such findings cannot be disturbed by an appeal Court, see Ali v State (2015) 10 NWLR Part 1466 page 1 at 31 Para D-H per Ogunbiyi JSC; Guardian Newspapers Ltd v Ajeh (2011) 10 NWLR Part 1256 Page 574 at 592 Para F-H per Rhodes Vivour JSC; Momoh v Umoru (2011) 15 NWLR Part 1270 Page 217 at 271 Para C-D per Muntaka-Coomassie JSC. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
TUKUR HALILU Appellant(s)
AND
THE STATE Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): ?This is an appeal against the judgment of the High Court of Katsina State delivered by Hon. Justice I. B. Ahmed on 5th June 2014, convicting the Appellant for the offence of culpable homicide punishable with death pursuant to Section 221 of the Penal Code.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal, dated 28th August 2014, containing five Grounds of Appeal. Briefs of Argument were filed in accordance with the rules of Court.
In the Appellant’s Brief of Arguments, dated and filed on 22/09/2014, settled by Lanre Olaoluwa, Bayo Omole and Bayo Adetomiwa of Matrix Solicitors, four issues for determination were raised, to wit:
1. Whether considering the circumstance-of the abandonment of the Appellant’s case by his counsel and the failure of the trial judge to avail an opportunity of legal representation as guaranteed by the Constitution, the Appellant’s right to fair hearing was not breached.
2. Whether having regard to the failure of the prosecution to investigate the defence of Alibi put forward by the Appellant, the
trial Court was right when it held that the defence of alibi could not avail the Appellant.
3. Whether having regard to the clear evidence of the torture and duress which the Appellant was subjected to by the police, the learned trial judge was not wrong when he held that the Confessional Statement of the Appellant was voluntarily mode? And whether it was right to have relied on the controverted Confessional Statement in convicting the Appellant.
4. Whether despite the absence of a positive element of intention, the trial Court was right when it held that the prosecution had proved the case of culpable homicide against the Appellants beyond reasonable doubt.
The Respondent, in its Brief of Arguments, settled by Aminu Garba of the Attorney General’s Chambers, Ministry of Justice Katsina State dated 27/02/2015 and filed on 2/3/15, adopted the issues for determination raised by the Appellant’s Counsel.
I shall accordingly adopt these issues, abridged for succinctness and subsuming the 3rd issue raised under the 4th issue, as follows:
1. Whether the Appellant’s right to fair hearing was breached?
2. Whether, having regard to the
failure of the prosecution to investigate the defence of Alibi put forward by the Appellant, the trial Court was right when it held that the defence of Alibi could not avail the Appellant?
3. Whether the trial Judge proved the guilt of the Appellant beyond reasonable doubt?
The 1st issue for determination is:
Whether the Appellant’s right to fair hearing was breached?
Counsel to the Appellant has complained that, following the abandonment by the Appellant’s Counsel of his defence, the trial Judge was obligated to secure alternative Counsel for him, the failure of which has resulted in the breach of his rights, as guaranteed by Section 36(6) of the 1999 Constitution (as amended) and Section 185 of the Criminal Procedure Code, thus rendering the trial a nullity.
They cited the following cases:
Calabar Central Co-Operative Thrift & Credit Society Ltd v Ekpo (2008) 6 NWLR Pt.1083 Page 362 at 398; E. Onochie v. Odogwu (2006) 6 NWLR part 975 page 65; Josiah v State (1985) 1 NWLR Part 1 Page 125 and Udo v State (1988) 3 NWLR Part 82 Page 316.
?Learned Counsel argued that by these?authorities, a judge is obliged to ensure that a
person who is being tried of a crime and more importantly a capital offence which carries a death penalty, is afforded a counsel to defend him at all times throughout the trial because of the gravity of the offence charged. A perusal of the Record of Proceedings, he said, reveals that although a Counsel did represent the Appellant up to some point in the trial, the Counsel abandoned the Appellant to his fate. The application of the prosecution to call three additional witnesses was entertained and granted by the trial Court in the absence of the Defence Counsel, he complained. Citing in support the case of Eshenake v. Gbinije (2006) 1 NWLR Part 961?at 228, learned Counsel submitted that the failure of the trial Court to “accord and protect” the right of the Appellant to put in an address at the end of the trial is a breach of the Appellant’s right to fair hearing, which breach occasioned a miscarriage of justice.
Counsel argued further that Section 258(1) of the 1979 Constitution is in pari materia with Section 294(1) of the 1999 Constitution which provides:-
294(1)
“Every Court established under this Constitution shall deliver its decision in
writing not later that ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.?
?The failure of the Lower Court to avail itself of the benefit of the Appellant?s address which was filed before it but allowed itself the benefit of the Respondents’ address, is an infraction of the rules of natural justice of the “audi alteram partem”.
?In his response, the State’s Counsel pointed out that the Defence Counsel was present at the trial and cross examined the Prosecution witnesses. In addition, all the adjournments were at the instance of the Defence Counsel, who, on conclusion of the case, decided to waive his right to address the Court. He maintained that the Defence Counsel was given more than enough time to file his final address but failed to do so, in consequence of which the prosecution applied to the Court to proceed to deliver its judgment. The Appellant’s Counsel can thus not complain of breach of fair hearing. It is not a requirement of the law, he argued, that Counsel must address
the Court before judgment is delivered. Counsel is at liberty to waive such right.
In the instant case, the records show that the Appellant, together with the other accused persons, were represented by A. B. K. Nasir of Counsel. The records also show that, on occasion, S. Salihu, A. T. Karim, M. A. Basumu and H. T. Dikko also appeared for all the accused persons, holding the brief of A.B.K. Nasir. The records further show that it was A. B. K. Nasir that conducted the defence of the accused persons. He led them in evidence and was present during their cross examination, following which he requested that the defence be closed and the case be adjourned for adoption of written addresses. He however ceased further appearances, and, in spite of a number of adjournments to allow him present the written address of the Appellant and the other accused persons, failed to appear. In consequence, the Court, at the instance of the prosecution, adjourned the case for judgment, the prosecutor informing the Court that he had filed no Address, the defence having failed to file any address. The trial Judge thus adjourned for judgment without the benefit of written addresses
from either Counsel.
The question is thus whether the failure of the defence Counsel to write a written address and the failure of the trial judge to secure alternative Counsel for the purpose of filing a written address resulted in a breach of fair hearing.
In the case of Josiah v. State (1985) 1 NWLR Part 1 page 125, cited by the Appellant’s Counsel, the Supreme Court, per Oputa JSC at 140-141, Para F-A had the following to say:
‘A fair hearing presupposes first and foremost a hearing. We operate the “Adversary System”?. The major feature of this system is the passive and inactive role of the judge in the presentation of cases in Court. The judge under our system is at best an attentive listener to all that is said on both sides. He is not on investigator. He speaks mainly to deliver judgments. This passive role of the judge emphasises the active role of counsel for the prosecution and for the defence. What is a “hearing” worth to on accused person who does not understand this language of the Court, who does not know the rules of procedure, and who cannot properly present his case? The right to counsel is thus at the very root
of, and is the necessary foundation for a fair hearing in, ordinary layman, even the intelligent and educated layman is not skilled in the science of law and he therefore needs the aid and advice of counsel. It is because of this need that, in capital offences, attracting the death penalty, the accused is not left undefended. If he cannot afford the services of counsel the State assigns one to him. It is surprising that none was assigned to the appellant in the Court of first instance. It is even more surprising that when the appellant himself. (though not a lawyer) raised this point in his 1st Ground of Appeal 10 the Court below, nobody look it up. A fair hearing in cases coming under Rules of the Robbery and Firearms Tribunal (Procedure) Rules like the one on appeal. (where Rule 5 makes the services of a legal practitioner mandatory), must include the right to and the aid of counsel for the defence. This was denied the appellant in this case. I am satisfied that the appellant had no fair hearing in the trial Court. This coupled with the non-compliance with the provisions of Section 287 of the Criminal Procedure Law by the trial judge vitiate the trial and
makes it mandatory that this appeal should be allowed”
It was similarly held in the case of Udo v State (1988) 3 NWLR Part 82 page 316 at 332 Para B-C, per Nnameka-Agu JSC also cited by the Appellant’s Counsel, per Nnaemeka Agu JSC that it is “implicit in the concept of fair hearing as on respect of natural justice in the broad sense that the Court should give equal opportunities to both sides of the conflict. A murder trial cannot be said to be fair when an accused, standing trial for his life, has to conduct the case himself as against a legal practitioner, for the prosecution.”
The instant case however differs from the cases above, as in the cases cited, there was no legal representation afforded the accused person at trial. Defence Counsel in this case, as pointed out above, was, however, present throughout the hearing. As aforesaid, he cross examined all the prosecution witnesses and conducted the defence of the Appellant and the other accused persons. It was subsequent to hearing that he filed no final address and ceased further appearance. It is thus not correct to say that the Appellant had no legal representation.
On the right to file
Written Addresses, Counsel to the Appellant has cited the case of Eshenaike v Gbinije Supra where this Court, per Abba-Aji JCA, quoted the case of Obodo v Olomu (1987) 3 NWLR Part 59 Page 111 at 121 Para C-F where Belgore JSC (as he then was) held as follows:
“Addresses form part of the case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial; because in many cases, it is after the addresses that one finds the law on the issues fought not in favour of the evidence adduced……. A party entitled to address the Court may waive that right but it must be shown that he has so waived his right.
The learned jurist, Abba-Aji JCA, in the case of Eshenake v Gbinije Supra also cited the case of Salami v Odogun (1991) 2 NWLR Part 173, page 291 at 301 where Sulu Gambari, JCA, opined thus:-
“Where an address ought to be given and the some was not accorded, any decision so arrived at will amount to a breach of fair hearing which is entrenched in Section 33 of the 1979 Constitution of the Federal Republic of Nigeria and will surely vitiate the proceedings.”
Further referred to by
Abba-Aji JCA in the said case is the dictum of Akpabio JCA in Agbogu v Adiche (2003) 2 NWLR Part 805 Page 509 at 527 Para G-H where he held thus:-
“Judicially interpreted, Section 258(1) of the 1979 Constitution vests a right in the parties to make final addresses and where one of the parties makes his final address the other party must be given opportunity to reply or give his own final address before pronouncement of judgment.
A denial to one party from giving his final address whilst the other party is allowed is on infraction of the rule of natural justice of audi alteram partem.”
In the present case, from the records of the Court, the defence was granted four adjournments from 5/3/14 when trial concluded to 4/6/14 to file its written addresses. In default, the trial Judge was compelled to adjourn for judgment. This is thus not a case where the final address of only one side was heard, to the detriment of the other, in contravention of the audi alterem partem rule, for, no address was filed by the Prosecution, the Prosecutor informing the Court, as aforesaid, that the Defence having filed none, he had nothing to respond to.
The important factor is, whether given this state of affairs, the trial Judge properly evaluated the evidence before him and correctly applied the law to the facts of the case, which is a question that comes up for determination under issue No 3.
Indeed, it was held in the case of Ekara v Tokim (1995) 5 NWLR Part 394 page 242 at 252, Paragraphs A-B, per Akintan JCA (as he then was) that:
“It is trite law that address of counsel is designed to assist the Court. Where therefore a counsel deliberately fails to avail himself of the opportunity of delivering his address or where the argument is unanswerable, the fact that counsel did not address the Court cannot be denial of fair hearing which could vitiate the judgment.”
Failure of the Defence counsel to file a written address in the circumstance of this case, and the fact that the trial judge did not secure alternative Counsel for the Appellant for the sole purpose of filing a written address, cannot be construed, I hold, as a breach of the Appellant’s right to fair hearing.
In addition, the fact that the Appellant’s Counsel was absent when the motion to call additional prosecution witnesses was
taken, is again no denial of fair hearing, for, from the Record, the motion was said, at the hearing of 10/10/12, to have been brought to the attention of the Defence Counsel. The case was nevertheless adjourned for hearing of this motion, to allow the Defence counsel be present. Upon his absence at two subsequent dates, the motion was heard and granted and trial continued. Following this grant, the Defence Counsel, later appearing in Court, raised no objections to the grant of this application, neither did he file any application to set the proceedings aside. On the contrary, he participated in the trial, cross examined the prosecution witnesses and upon closure of the prosecution’s case, opened the defence.
Indeed, Courts have to be wary of unnecessarily interfering in the manner a Counsel wishes to conduct the case of his client. When Counsel announces that he is instructed to take on a brief, the Court cannot question this authority except there is a dissent by the client. See Adekanye v FRN (2005) 15 NWLR part 949 page 433 at 462 Para D per Muhammed JCA (as he then was). See also Afegbai v. A/G Edo State (2001) 14 NWLR Part 733 Page 425 at 456 para
B-E per Karibi-Whyte JSC.
I accordingly hold, from the facts of this case, that there was no breach to the Appellant of his right to fair hearing. As pointed out above, the question of whether the Lower Court properly evaluated the evidence and applied the law to the facts of the case, in spite of the failure of both Counsel to file written addresses, will come up for consideration in the resolution of issue No 3. I accordingly resolve the 1st issue for determination against the Appellant.
The 2nd issue for determination is:
Whether, having regard to the failure of the Prosecution to investigate the defence of Alibi put forward by the Appellant, the trial Court was right when it held that the defence of Alibi could not avail the Appellant.
Learned Counsel to the Appellant concedes that the law is settled that for the defence of alibi to avail an accused person, he must, in addition to his assertion that he was not at the scene of the offence at the time the offence was committed, go further to state where he was, in order to properly absolve himself from culpability. This is because the plea of alibi places an evidential burden on the
accused to discharge. The law is settled, he said, that for the defence of alibi to stand, it must be raised at the earliest possible time, usually during investigation by the Police. Where the defence of alibi is properly raised, the prosecution has the onus to investigate it. The failure to investigate the alibi raised by the Appellant is fatal to the case of the Prosecution, and any conviction on it will not stand. He cited the cases of Amodu v State (2010) 2 NWLR Part 1177 47; Shehu v. State (2010) 8 NWLR Part 1195 Page 112; Ukwunnenyi v State (1989) 4 NWLR Part 114 Page 131. He argued further that a careful perusal of the judgment of the trial Court shows that the defence of alibi was not only raised by the Appellant, but promptly too. This alibi was also corroborated by the statements of DW5 and one Rabibu Na Miko. This, is in addition to the fact that none of the “near eye witnesses”ever mentioned that they saw the Appellant at the scene of the crime. Despite this evidence and the failure of the Prosecution to investigate the alibi, the trial Court went ahead to convict the Appellant of the offence charged.
Evidence of alibi, he said, should not be
too easily brushed aside except it is counter balanced or demolished by clear rebuttal, adding that in the absence of stronger, cogent evidence to counter-balance the plea put forward by the Appellant, the Lower Court was wrong to have rejected it without any legal or factual basis.
Responding, the State’s Counsel submitted that a careful perusal of the record of the trial Court shows that the Appellant was fixed at the scene of the crime committing the offence. The law is that where credible evidence fixes the accused at the scene, committing the offence, the defence of alibi will collapse. He cited Ochemaje Vs State (2008) 15 NWLR Part 109 Page 57 at 90 paras C-H; Amodu v. State (2010) 2 NWLR Part 1177 Page 47, Olaiya v State (2010) 3 NWLR part 1181 Page 423.
?
“Alibi” is defined in Black’s law Dictionary, 8th edition as:
“A defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other thon the scene of the crime at the relevant time; the fact or state of having been elsewhere when an offence was committed.?
Elaborating on this defence, the Supreme Court, per Kekere-Ekun JSC, in the
case of Silas Sule Mohammed v. State (2014) 12 NWLR Part 1421 at page 387 at 430 Para B-H referred to the case of Ozaki vs The State (1990) 1 NWLR (Pt.124) 92 at 109 Para C- G where Obaseki, JSC held thus:
“What is the meaning of alibi? It is a defence where an accused person alleges that at the time when the offence with which he is charged was committed, he was elsewhere. It is the law that notice of intention to raise it must be given. This is normally done at the first opportunity by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established by the police.”
The onus of establishing alibi is on the accused person since it is a matter within his personal knowledge. The defence of alibi would succeed if at the earliest opportunity such a defence is raised, with sufficient particulars to enable the police investigate it – Abubakar Mohammed v State (2015) 10 NWLR part 1468 Page 496 at 524 Para A-C per Rhodes-Vivour JSC
As held in the case of Osuagwu v State (2013) 5 NWLR Part 1347 Page 360 at 383 Para F-H per Rhodes-Vivour JSC:
“After a suspect is arrested,
Police investigation commences with the suspect. He is asked under caution to write a statement. This is the earliest opportunity o suspect has to explain or raise the defence of Alibi. He must state in clear terms, the day time and address of where he was when the Police alleged that he committed the offence. In court an accused person who sets up the defence of alibi, evidence led by the accused person must be taken seriously. The onus is not on the accused person to establish alibi to the satisfaction of the Court but for the prosecution to disprove it..”
Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt – Abubakar Mohammed v. State (2015) 10 NWLR Part 1468 Page 496 at 524 Para A-C per Rhodes-Vivour JSC;
The defence of alibi would, however crumble where there is stronger evidence against it, for example if the prosecution leads credible and accepted evidence which fixes the accused person at the scene of the crime at the material time. See Abubakar Mohammed v State Supra at 524 Para C per
Rhodes-Vivour JSC; Osuagwu v State (2013) 5 NWLR Part 1347 Page 360 at 383 para H per Rhodes-Vivour JSC:
The law is that where the evidence of the prosecution, positively, unequivocally and irresistibly points to the guilt of the Appellants, the defence of alibi becomes of no moment. See Sampson Ebenehi & Anor v The State (2009) 6 NWLR Part 1138 Page 431 at 448 para A per Ogbuagu JSC.
Failure by the Police to investigate and check the reliability of (the) alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of a conviction imposed in disregard of this requirement. The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi -Egwumi v State (2013) 13 NWLR part 1372 page 525 at 548 Para E-H per Rhodes-Vivour JSC.
As, however, held by His Lordship Niki Tobi JSC in Ochemaje v State (2008) 15 NWLR Part 109 Page 57 at Page 90 Para G “investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the
witnesses or under cross-examination by the evidence of the accused or his witnesses.”
To succeed in such a defence that may lead to an acquittal, the accused must support and substantiate the defence with “unassailable credible evidence that is not riddled with holes” – Ochemaje v State Supra at 93 Para H per Mukhtar JSC (as she then was).
Where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty to investigate the alibi. In such a case, no alibi is established. Also, the ipse dixit of the accused, i.e. that he was not present, is not enough. To raise the defence he must give particulars of his whereabouts at that particular time. Where the accused is however identified by eye witnesses, a straight case of credibility is involved. See Olaiya v State (2010) 3 NWLR Part 1181 Page 423 at 435 Para B-H per Mahmud Mohammed JSC (as he then was); Silas Sule Mohammed v state (2014) 12 NWLR part 1421 at page 387 at 430 Para B-H per Kekere-Ekun JSC.
The facts of this case were presented by 5 prosecution witnesses. PW1 and PW4 were eye witnesses, while PW2, PW3 and PW5 were Police
witnesses. There were initially 5 accused persons. During the lengthy trial, caused by the retirement of the initial trial Judge and a number of adjournments due to delays caused largely by Defence Counsel and the absence in Court of the accused persons who had been granted bail by the trial Court, two of the accused persons died, leaving three accused persons. The Appellant was the 2nd Accused at the trial. The three accused persons testified as DW1, DW2 and DW3 respectively. DW4, DW5 and DW6 testified as witnesses of the 1st, 2nd (Appellant) and 3rd accused persons respectively.
The evidence of the Appellant in Court, containing the alibi (page 70-71 of Record), is as follows:
“My names are Tukur Aliyu. I am 22 years old. I am a Muslim. I am a farmer and rearer. I live at Danzaki in Safana LGA. About 8 years back I was coming from Lagos together with Rabiu Na Miko and Abu and the reaching home I was told that Kadi (deceased) was killed. I met the police there who arrested me and took me to Katsina. Rabiu and Abu went to the State CID and told the police that I was innocent as i was not in town when the incident occurred, were nobody listened to
them. I was there and then locked up. When I was asked about the incident I told the police that I was beaten up and had confess. I cannot remember the name of the police officer who beat me but he came to the Court to give evidence. I was thereafter returned to the cell. I was eventually taken back to the cell and was later taken to CWK Katsina. I agree with the testimony of Abu Kurfi but do not agree with that of the police witnesses. About the charge, I did not commit the offence and pray the Court to discharge me.
xx by Prosecution Counsel
Q: for how long had you been in Lagos?
Ans: I spent 27 days there.
Q: what were you doing then?
Ans: I was doing business.
Q: when did you return from Lagos?
Ans: I returned about 5 years ago.
Q: what was your relationship with the deceased?
Ans: No relationship with him.
Q: how did you know the deceased?
Ans: they be in the course of buried (sic)
Q: when you were arrested you were taken first to Safana police station
Ans: No, I was taken straight to State CID.
A; do you know one Cpl Yau Shuaiabu?
Ans: No, I did not.
Q: you saw the remaining
suspects at the State CID?
Ans: Yes, we even greeted.
Q: the other people that went on your behalf went to the state CID to settle the matter?
Ans: No they only went there for me.
Q: what were you doing at the deceased?s house on the day he died?
Ans: I did not go his house
Q: but one of the prosecution witness said he saw you.
Ans: No, that is not true.
Q; you gave police statement?
Ans: Yes, I did but not at my own free will
Rexx: None”
The evidence of his witness, DW5 is as follows:
“I am Abu Bala. I am 27 years old. I live at Marina in Safana LGA. I am a rearer and a labourer. What I know is that about 8 years back I and 2nd accused went to Lagos and we came back together back to Marina. Then the following day I was told that police had arrested him. I went to State CID with the intention of informing the police that I was together with the 2nd accused at Lagos but was not allowed to enter the place. We arrived 10 days after the incident had occurred.
xx by Prosecution Counsel
Q: which day did you arrive home from Lagos?
Ans: I have forgotten.
Q: which was your
relationship with the deceased?
Ans: No relationship with both the deceased and the accused person as we were just friends. It was when we returned that I came to know that Kadi (deceased) was killed.
Q: who informed you?
Ans: I cannot remember.
Q: how many days after your arrival that you heard of the deceased?s death?
Ans: it was 10 days after.
Q: Do you know who killed him?
Ans: I do not know.
Q: when you learnt of the 2nd Accused person’s arrest you straight went to the state CID?
Ans: I did so three days after.
Q: to whom did you go to?
Ans: I went and talked to policemen there.
Q: when you were not with the 2nd accused person you could not know what might have happened thereafter?
Ans: No I cannot”
The evidence of the prosecution witnesses pinning the Appellant to the scene of the crime was given by PW1 and PW4 as follows:
“PW1: (Muslim, Affirms to tell the truth)
I am Abu Yalle Kudidi. I am 35 years old. I am a farmer and cattle rearer. I live at Jigawar Danzaki in Safana LGA. I know all the accused persons, I also know that Alh. Shaiabu Kadi is dead. I know what led
to his death. About 5 years back, I returned to my house from Danzaki and met some people coming out of my house, amount them was the 1st and 2nd persons and one Zayya Basiru who is now dead and one Hassan Basiru also dead. However, those were the only persons I could recognize out of the number of people that were coming out of my house. On getting into the house I discovered that Kadi Shaiabu was killed. I also discovered that the roofing of the deceased person’s room was removed. I met the deceased lifeless with blood gushing out from his body, the blood was coming from his head. I first went to inform ward Head and as I could not meet him, I went and informed the village Head by name Alh’ Barau’s and together with the Village Head we went and informed our District Head of Zakka.”
xx by Defence Counsel
Q: You were not present when the deceased was killed? Ans: No, I was not there.
Q: You did not see the Accused persons killing the deceased?
?Ans: No, I did not.
Q: You sleep in the same room with members of your family? Ans: Yes.
Q: Where the incident occurred was a whole compound? Ans. Yes, I was.
Q: how many rooms were
there in the compound?
Ans. There were three rooms in the compound. Q: Apart from the room the deceased was found, were there other rooms in the compound?
Ans. Yes, there were with people in those rooms.
Rexx by prosecution Counsel: None
xx by the Court
Q: At what time of the day did the incident occur? Ans: It was around 9:00pm.
Q: Were the occupants in the compound asleep?
Ans: I met nobody in the compound as the other occupants had left the compound.
Rexx by prosecution Counsel: None”
The evidence of PW4, at page 49 -50 of the Record is as follows:
“PW4: (Muslim, affirms to tell the truth)
I am Abdu Mamman. I live at Danzaki Village in Safana LGA. I am 30 years old. I am a farmer and rearer. I know all the accused persons. I also know one Kado Alhaji Shu?aibu, he is dead. On 28/01/2006 I was together with Kadi when we were chased by Malam Tukur, Muhammadu and Usman Shehu. They are the accused persons. Kadi is dead. I eventually escaped while Kadi was attacked with an axe and he fell down….?
Under cross examination by the Defence Counsel, he stated:
“Q: Where
did you know the accused persons and for how long?
Ans: I know them as we lived in the same village. I had known them since childhood.
Q: Why did the accused persons chase you and Kadi?
Ans: They chased us because we supplied water to our animals from a well and the accused persons sent the animals away and abused one of us (a boy). The boy also abused them as a result of which the accused persons wanted to beat him and he ran away and informed us. We then confronted the accused persons as to know why they should attempt to beat the boy as they were surprised to have reported the matter to us.
The trial Court, in its Judgment, deliberating on the alibi put forward by the Appellant, at Page 119-120 of the Record, held as follows:
From the testimony of these defence witnesses the accused persons were said to have put up a defence of alibi, but the even (sic) if that was true the presence of PW1 and PW5 (sic) in the trial who were near eye witnesses to the murder and who spotted the accused persons immediately before and immediately after the murder had been committed completely erodes the accused persons’ defence of alibi. I therefore
disagree with the defence testimony in its entirety that they were not at the scene of the crime and hereby reject it. I hold that all the three accused persons were responsible for the deceased’s death and have equally no defence to the murder. In other words the accused persons have failed to avail themselves to any of the mitigating circumstances under Section 222 of the Penal Code. The Court is therefore left in no doubt that the ingredients of the offence of culpable homicide punishable with death hove been fully proved beyond reasonable doubt as required by law against all the three accused persons and as they have no defence to their action, I accordingly convict them under Section 221 of the Penal Code.”
In the instant case, the Appellant, in his statement to the Police, raised no alibi for the Police to investigate. His statement, Exhibit 2B is as follows:
“I of the above mentioned name and address wish to give my statement as follows. I was born at Jigawa village Safana Local Government. I have one wife. On 29/7/2006 the Fulani of our village have fight them self up to two times but the first fighting I was not there while the second
fighting I was amont them. We went round for looking the groups of the people whom fight with our people as we are searching them I heard a gunshot at our back. From there we pursued them and they all ran but one Kadi he ran to Abu Yale Kudidi house where we follow him in to the said house and beat him and leave him there, then we go back to our residence and we are five in number (eg) myself (1) Tukur Halilu (2) Mohammadu Haruna (3) Usman Haruna (4) Hassan Abdulbasiru and (5) Zaiyanu Abdulbasiru really we are the very people who killed the said Kadi. The reason why we killed him because they fight with our brother Bello and he wounded him. That is all what I can say.
Translated by me
Sgt Nasiru Shu’aibu”
His statement is a clear admission of guilt. The Appellant, apart from a bare statement in his testimony in Court that he was in Lagos doing business, gave no particulars as to what the business was, with whom etc. Similarly, his witness, Abu Bala simply said “I and 2nd Accused went to Lagos”, also giving no particulars.
As held in Ochemaje v State supra at 90 para C-F per Niki Tobi JSC:
“A defence of alibi to be worthy of
investigation should be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time… It is not the law that the police should be involved in a wild goose chase for the whereabouts of an accused person at the time the crime was committed… That is not the function or role of the Police. The accused must give specific particulars of where he was at the material time to enable the Police move straight to that place to carry out the investigation required by law.”
In the dictum of Tabai JSC at page 78 para B-E:
“The settled principle of law is that it is not every failure of the police to investigate an alibi raised by an accused person that is fatal to the case of the prosecution. In Patrick Njovens & others v The State (1973) 5 SC 12 at 47 this court said of the principle.
“There is nothing extraordinary or exoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentialty that he was not there. Even if it is the duty of the prosecution to check on a statement of
alibi by an accused person and disprove the alibi or attempt to do so, there is inflexible and/or invariable way of doing this. If the prosecution adduces sufficient and acceptable evidence to fix the person at the scene of crime at all the material time, surely his alibi is thereby logically and physically demolished ….”
In the instant case, no particulars were given either by the Appellant in Court or by his witness.
Thus, even though the Police did not investigate this alibi, the prosecution witnesses fixed the Appellant at the scene of the crime at the material time. The alibi of the Appellant, as held in the case of Olaiya v State Supra thus “fizzled into the air” and is of no moment, I hold. The trial Judge’s rejection of the plea, in view of the evidence of PW1 and 4, taken together with the confessional statement of the Appellant, cannot be faulted, I hold.
The 3rd issue for determination is:
Whether the trial Judge proved the guilt of the Appellant beyond reasonable doubt.
The Appellant’s Counsel submits that the law is trite that before a Court can convict a person of committing any offence, the Prosecution has a duty to
first prove the commission of such offence beyond reasonable doubt. Citing Section 135 (1) and (2) of the Evidence Act 2011 he submitted that, by law, it is a prerequisite for the Prosecution to prove its case beyond every doubt as only then can it be said to have established its case against the accused person. The reason for this high standard of proof in criminal trials, is so that the essence of the criminal justice system that the innocent be set free and the guilty be punished will not be defeated. Where any doubt in the case of the prosecution exists, such doubts must be resolved in favour of the Appellant. He cited Igabele v. State Supra, Nwosu v State (1986) 4 NWLR Part 35 Page 348. Citing Haruna v A/G Federation Supra, he enumerated the ingredients in proof of culpable homicide, which must all be proved before a conviction could take place. He submitted that the alleged confessional statement of the Appellant was the real basis for the conviction of the Appellant, which statement, contrary to Section 29 of the Evidence Act 2011, was obtained under torture and was thus inadmissible, in spite of its admission following the Trial within Trial held by
the Lower Court. It is the duty of the prosecution to prove that the confessional statement was made voluntarily, which was not done, rather the prosecution put the onus on the Appellant of proving the voluntariness of the statement. He alleged inconsistency in the identification of PW1, as he had said in the Police Station that the Appellant was not among the perpetrators only to turn around to claim that he was.
With regard to the retraction of the statement, Counsel submitted that, assuming that the Appellant had retracted his statement, the judge was all the more wrong to have relied on this retracted statement in convicting the Appellant, as he must look beyond the statement in convicting him.
?Counsel to the Respondent contended, in response, that the law is that when a confessional statement is retracted, as in this case, the Court has no option but to admit the statement, as the denial of making a statement does not make it inadmissible but the truth of it must be tested along with the entire evidence to determine the weight to be attached to it. In considering whether the prosecution had proved its case beyond reasonable doubt, the gravity of the injury with the knowledge or deemed knowledge that death would be the
probable consequence of the act is evidence of this, he submitted.
From the records of the Court, Counsel to the Appellant, when the prosecution, through PW2, Inspector Nasiru Shu’aibu, sought to tender his statement, objected on the ground that it was given involuntarily. In consequence, the Court held a Trial within Trial (TWT). The Appellant was the sole witness at the TWT.
?The Appellant, in his evidence in chief at the TWT, stated:
“..I could remember about 5 years ago, Police invited me to their office at the State CID. There I was asked to comment on the allegation of committing the offence of culpable homicide which I denied. They then said you will soon talk. They then invited PW1 who informed the Police that he did not see (sic) at his house. They then discharged PW1, after he left they began to beat me with stick on my knees and back of my hand. As a result I did not know what was happening to the extent that I was feeling that they might either kill me or seriously injure me. I was injured on my hand and both legs.
Court: witness showed to the court some scars in his left shoulder and hand and on his left knee.
It was then
seeing that they might kill me I asked them to go and write whatever they wanted. I spent about 10 days in detention. I now wish to tell the Court that I was forced to confess committing the offence that is all I have to tell the Court”
The prosecution called no evidence at the TWT but addressed the Court, urging the Court to admit the statement, arguing that this is a case of retraction of a confessional statement and no longer a statement made under torture. It was thus left to the Court, after its admission, to determine the weight to be attached to it. He cited Akpo v State (2008) 14 NWLR Part 1106 Page 72 and Idowu v State (2000) 7 SC Part 11 page 50.
Counsel to the Appellant agreed with this position of the law, conceding to the admission of the statement but urging the Court that after the admission, it should not attach any weight to it. The Court, in line with the agreement of both Counsel, admitted in evidence both the Hausa statement and its English translation as Exhibits 2A and 2B respectively.
The position of the Law, as agreed by both Counsel at the TWT is that where a statement is retracted by the accused, the Court
should find, outside the confession, some evidence, be it slight, of circumstances which tend to establish that the confessional statement is true.
It was held in the case of Busari v State (2015) 5 NWLR part 1452 page 343 at 367 Para A-B per Muntaka-Coomassie JSC, as follows:
I confirm it is a good law that a Court can convict on the retracted confessional statement of an accused person but it is desirable to find outside the confession some evidence be it slight of circumstances which make it probable that the confession was true.
As submitted by both Counsel, by Section 135 (1) and (2) of the Evidence Act 2011, it is a prerequisite in criminal trials for the prosecution to prove its case beyond reasonable doubt. Proof beyond reasonable doubt does not, however, mean proof beyond a shadow of doubt, as submitted by Appellant’s Counsel, but that the Court must be satisfied that the facts established by the evidence, by virtue of their probative value, establish the guilt of the accused. See Ali v State (2015) 10 NWLR Part 1466 page 1 at 42 para A-C per Kekere-Ekun JSC.
?
Proof of the guilt of the accused beyond reasonable doubt can be by
means of:
1. The confessional statement of the accused;
2. Circumstantial evidence; or by
3. Evidence of eye witnesses
See Ali v state (2015) 10 NMLR Part 1466 page 1 at 24 para A-B per Clara Ogunbiyi JSC; Haruna v A/G Federation (2012) 9 NWLR part 1306 page 419 at 445 Para B-C per Adekeye JSC; Igabele v State (2006) 6 NWLR Part 975 page 100 at 120-121 Para H-A per Onu JSC.
Where there exists any doubt in the case of the prosecution, such doubt must be resolved in favour of the Appellant. See Igabele v State Supra at page 121 para E-G per Oguntade JSC.
By Section 221 of the Penal Code, for culpable homicide to be punishable with death, the following must be proved:
(a)That the death of a human being actually took place;
(b) That such death was caused by the accused; and
(c) That the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.
All these ingredients must be proved or co-exist before a conviction can be secured. Failure to establish any of the ingredients will result in an acquittal. See
Haruna v A. G. Federation (2012) 1 NWLR Part 1306 Page 419 at 444-445 para G-A per Adekeye JSC; Ali v State (2015) 10 NWLR Part 1466 page 1 at 23-24 per Ogunbiyi JSC.
In the instant case, the 1st requirement, the death of Kadi Shuaibu has been proved. The evidence of PW3, Sergeant Yau Shuaibu, then serving at Safana Divisional Police Headquarters is that on 29/1/06 he received the report of the death of the deceased. He went together with a team of police men to the scene, took pictures of the deceased and conveyed the body to the hospital for postmortem examination, subsequently releasing the body for burial. Attempts to arrest the suspects proved abortive. The case diary was subsequently compiled and transferred to the State CID. Subsequently the case was transferred to State CID Katsina, investigated by PW2, Inspector Nasiru Shu’aibu. The suspects were later arrested and their statements taken. By the evidence of PW5, Inspector Danlami Haruna, also of State CID Katsina, an axe, a stick and the sheathe of a cutlass were recovered from the scene of the crime.
On whether such death was caused by the Appellant, the statement of the Appellant is
an admission of the crime. The evidence of PW1 and PW4 is also inculpatory of the Appellant, I hold.
PW1, Abu Yalle Kudidi stated:
“About 5 years back, I returned to my house from Danzaki and met some people coming out of my house, among them was the 1st and 2nd accused persons and one Zayya Basiru who is now dead and one Hassan Basiru also dead. However, those were the only persons I could recognize out of the number of people that were coming out of my house. On getting into the house I discovered that Kadi Shaiabu was killed. I also discovered that the roofing of the deceased person’s room was removed. I met the deceased lifeless with blood gushing out from his body, the blood was coming from his head.”
?
PW4, said:
“….On 28/01/2006 I was together with Kadi when we were chased by Malam Tukur, Muhammadu and Usman Shehu. They are the accused persons. Kadi is dead. I eventually escaped while Kadi was attacked with an axe and he fell down…”
The cross examination by the Defence Counsel of PW4 and his response on the identity of the accused persons was:
“Q: Where did you know the accused persons and for how long?
Ans: I
know them as we lived in the same village. I had known them since childhood.
He was questioned by the Defence counsel on the reason for the attack, as follows:
“Why did the accused persons chase you and Kadi?
Ans: They chased us because we supplied water to our animals from a well and persons the accused sent the animals away and abused one of us (a boy). The boy also abused them as a result of which the accused persons wanted to beat him and he ran away and informed us. We then confronted the accused persons as to know why they should attempt to beat the boy as they were surprised to have reported the matter to us
It was not suggested to the witness by Defence counsel that there was any mistaken identity. The witness was definite in his identification of the Appellant and the other accused persons.
The trial Judge, upon a review of the evidence before him, held, at page 113 of the Record:
“From the testimony of all the prosecution witnesses, particularly the first prosecution witness (PW1) in the person of Abu Yalle Kudidi, this Court is left in no doubt that death of a human being in the person of Kadi Alhaji Shuaibu has
occurred. Similarly from the testimony of PW1, PW4 (Abdu Namamu) and the presence of Exhibits 1A and 1B, 2A and 2B and 3A and 3B, it is not in doubt that it was the three accused persons who caused the death of the said Kadi Alhaji Shuaibu.
The trial Judge also set out excerpts of the testimony of the prosecution witnesses and concluded:
“In the absence of any other contradicting evidence any Court, including this Court, would arrive at the conclusion that it was the accused persons who killed the deceased Kadi Shuaibu and from the circumstances leading to the death they did so intentionally”
It is settled law that evaluation of evidence and ascription of probative value are the primary function of the trial Court which heard and watched the witnesses testify. An appellate Court will not ordinarily interfere with the findings of a trial Court unless in special or exceptional circumstances, such as where the finding of the trial Court is not supported by the evidence or is otherwise perverse or where the trial Court has not made full use of the opportunity of watching the demeanor of the witnesses etc. See Civil Design
Construction (Nig) Ltd v SCOA (Nig.) Ltd. (2007) 6 NWLR Part 1030 300 at 339-340 para H-B per Onnoghen JSC.
The law is trite that findings that are borne out of credible evidence must not be disturbed by an appellate Court, and an appellate Court will not ordinarily interfere with such findings unless they are perverse or not supported by credible evidence.
?Consequently where evidence is properly evaluated i.e. to say when all the principles of law relevant are properly considered, such findings cannot be disturbed by an appeal Court, see Ali v State (2015) 10 NWLR Part 1466 page 1 at 31 Para D-H per Ogunbiyi JSC; Guardian Newspapers Ltd v Ajeh (2011) 10 NWLR Part 1256 Page 574 at 592 Para F-H per Rhodes Vivour JSC; Momoh v Umoru (2011) 15 NWLR Part 1270 Page 217 at 271 Para C-D per Muntaka-Coomassie JSC.
The trial Court, I hold, properly evaluated the evidence before it, and ascribed probative value thereto, which this Court has no reason to interfere with.
In determining whether the act of the Appellant that caused the death was done with the intention of causing death or that he knew that death would be the probable consequence of his act,
the law is that a person intends the natural consequences of his act.
The Supreme Court, in the case of Ibikunle v State (2007) 2 NWLR part 1019 page 546 at 575 Para E-F per Onu JSC, referring to an earlier decision, stated the legal presumption, as follows:
“The law presumes that a man intends the natural and probable consequences of his acts. And the test to be applied in these circumstances is the objective test namely, the test of what a reasonable man would contemplate as the probable result of his acts.” And in Garba v. The State (supra) per Mohammed, JSC at p.1459 held:
“If from the intentional act of injury committed the probability of death resulting is high, the finding should be that the accused intended to cause death or injury sufficient in the ordinary cause of nature to cause death…”
In the case of Iliyasu v State (2015) 11 NWLR Part 1469 page 26 at 57-58 para F-C the Supreme Court, per Nweze JSC, adopted with approval the dictum of Abiru JCA of the Lower Court, where he held:
“In order to determine whether the defendant really had an intention to murder, the law has set down some criteria, some of which
are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon that is, a weapon which deadly or is death dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of the proximity of the victim with the lethal weapon used by the accused (person)..”
In the instant case, the area of the body on which the blow was inflicted and the weapon used, being an axe, on the head of the deceased, is proof, I hold, that the intention of the Appellant was to either kill the deceased or with the knowledge that death would be the probable consequence of the act.
I hold that the trial Judge, even though no written addresses were filed by either party, rightly evaluated the evidence in this case, properly applying the principles of law to the evidence before him. I see no reason to disturb his findings. I again resolve the 3rd issue for determination against the Appellant.
I consequently hold that the offence against the Appellant has been proved beyond reasonable doubt. I also hold that the Appellant was rightly convicted by the trial Judge of the offence of culpable
homicide punishable with death. I find no merit in this appeal. The appeal against the conviction and sentence of the Lower Court accordingly fails and is hereby dismissed. The conviction and sentence of the Lower Court are affirmed.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the draft of the lead judgment delivered by my learned brother, Oludotun Adebola Adefope-Okojie, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal.
This appeal is against the conviction of the Appellant by the Lower Court for culpable homicide punishable with death and the sentence of death by hanging passed on him for the part he played in causing the death of one Kadi Alhaji Shuaib by cutting him on the head with an axe on the 28th of January 2006 at Jingawar Danzaki Village, Safana Local Government Area of Katsina State. I agree entirely with the resolutions of the issues for determination in the lead judgment. I agree that the Respondent led cogent and sufficient evidence to prove the ingredients of the offence of culpable homicide punishable
with death against the Appellant beyond reasonable doubt through credible eye witnesses’ testimonies and the confessional statement of the Appellant. The complaints of the Counsel to the Appellant in this appeal were not well founded.
I adopt the reasoning in the lead judgment as mine and I, too, find that this appeal is lacking in merit. I hereby dismiss the appeal and affirm the judgment of the judgment of the High Court of Katsina State in Charge No.KTH/DM/6C/2006 delivered by Honorable Justice I. B. Ahmed on the 5th of June, 2014 as well as the conviction and sentence passed on the Appellant therein.
AMINA AUDI WAMBAI, J.C.A.:?I have had the privilege of reading in advance the lead Judgment delivered by my learned brother OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA.
?I agree with the reasoning and conclusions reached by my learned brother in the lead Judgment that the appeal lack merit and deserves to be dismissed. I also dismiss the appeal and affirm the Judgment of the Lower Court.
Appearances
Bayo Adetomiwa with him, David OkomogbaFor Appellant
AND
Aminu Garba (Assistant Chief State Counsel) A. L. Buhari (Senior State Counsel) and S. M. Malanta (Senior State Counsel) Ministry of Justice, Katsina State.For Respondent
