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UMAR v. KANO STATE (2022)

UMAR v. KANO STATE

(2022)LCN/16578(CA) 

In the Court of Appeal

(KANO JUDICIAL DIVISION)

On Monday, January 10, 2022

CA/KN/85C/2018

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

ABDULRAZAQ UMAR APPELANT(S)

And

KANO STATE RESPONDENT(S)

 

RATIO

INGREDIENTS TO PROVE THE OFFENCE OF CULPABLE HOMICIDE

On the essential ingredients that must be proved to establish the offence of culpable homicide punishable with death, in the case of:
Michael v. State (2008) LPELR-1874, the Apex Court per Musdapher, JSC (as he then was, later CJN, now of blessed memory) at p.13, paras. A-G had the following to say:
“In order to establish the offence of culpable homicide punishable with death, the law requires the prosecution to prove essentially the following:
(a) that the death of a human being has actually occurred;
(b) that such death was caused by the act of the accused person;
(c) that the accused person’s act or omission was done with the intention of causing death or grievous bodily harm and that the accused knew that death would be a probable consequence of his act. It is also trite that a basic and essential element of the offence of culpable homicide required to be proved that the cause of death must be linked to the act or omission of the accused. See Dare Kada v. The State (1991) 8 NWLR (Pt.208) 134; Nwokedi v. C.O.P. (1977) 3 SC 35. Where the deceased died on the spot or soon after an injury was inflicted by an accused person, the accused person will be guilty of causing the death. See Adamu v. Kano N.A. (1956) SCNLR 65; Bakuri v. The State (1965) NMLR 163. It is also the law that in a charge of culpable homicide, the nature of the weapon used, its weight and size are in the circumstances of the case essential in determining whether the conviction should be one of culpable homicide punishable with death or not. See Umaru Gwandu v. Gwandu N.A. (1962) 1 All NLR 545 at 546; (1962) 2 SCNLR 293.” PER OMOLEYE, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

The law is equally trite under this country’s criminal jurisprudence as enshrined in its grund norm, the Constitution of the Federal Republic of Nigeria, 1999 (as amended), that an accused person is presumed innocent until he is proved guilty. It is therefore the legal obligatory burden of the prosecution to prove the guilt of the accused person and the standard of such proof in criminal cases is proof beyond reasonable doubt. In the case of: Tobi v. State (2019) LPELR-46537, the Supreme Court per Odili, JSC succinctly reiterated these age-old legal principles thus:
“It is now very well settled that the principle of criminal law is that the burden of proving a crime rests squarely on the prosecution with a standard of proof that is beyond reasonable doubt which in effect means that every ingredient of the offence must be established to that standard of proof without leaving any reasonable doubt as to the guilt of the accused in the case.”
See also Section 36(5) of the 1999 Constitution which provides that, every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Further on the burden and standard of proof generally in criminal cases are the very far reaching provisions of Sections 132, 135(1) and (2), and 139 of the Evidence Act, 2011 as follows:
“Section 132(1) – Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
Section 132(2) – When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Section 135(1) – If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
Section 135(2) – The burden of proving that any person had been guilty of a crime or wrongful act is, subject to the provisions of Section 139 of the Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
Section 139 – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
The law is therefore well established that, in order to obtain conviction on any charge or offence or in criminal cases generally, the burden of proof is on the prosecution throughout and the burden is immutable. In other words, there is no burden on the accused person to prove his innocence. See the cases of: (1) Obande v. State (1991) 6 NWLR (Pt.198) p.435 at p.456; (2) State v. Ogbubunjo & Anor (2001) LPELR-3223 (SC); (3) Ikpo v. The State (2016) 2-3 SC (Pt.III) p.88 and (4) Ankpegher v. the State (2018) LPELR-43906 (SC).
PER OMOLEYE, J.C.A.

THE POSITION OF LAW ON PROVING A CASE BEYOND REASONABLE DOUBT

On when it can be said that the prosecution has proved its case beyond reasonable doubt, Oputa JSC (of blessed memory) in the case of: Oteki v. A.-G. Bendel State (1986) LPELR-2823 (SC) at pgs. 41-42, paras. D-A had the following to say:
“Every now and again, the question has been asked, how many witnesses should the prosecution call to prove its case beyond reasonable doubt?
What is the meaning of proof beyond reasonable doubt? Bucknill, L.J. in Bater v. Bater (1951) p.35 observed: “I do not understand how a Court can be satisfied that a charge has been proved……if, at the end of the case, it has a reasonable doubt whether the case has been proved. To be satisfied and at the same time to have a reasonable doubt seems to me to be an impossible state of mind. ”In other words, when a Court is satisfied that the charge has been proved, then that case has been proved, beyond reasonable doubt.”

It is trite therefore that, proof beyond reasonable doubt does not mean proof beyond all doubts or all shadow of doubts. It simply means establishing the guilt of an accused person with compelling and conclusive evidence. Thus, before it can be rightly said that the prosecution has proved its case beyond reasonable doubt, all the ingredients of the offence charged must be established, in the instant case, the offence charged is culpable homicide punishable with death. In other words, if one ingredient is left out then there is no proof beyond reasonable doubt. See also the cases of: (1) Alabi v. State (1993) LPELR-397 (SC); (2) Ekpo v. State (2018) LPELR-43843 (SC) and (3) Oteki v. A.G. Bendel State (Supra).

As a corollary, where there is the existence of any doubt in the case of the prosecution, such doubt must be resolved in favour of the accused person. See the cases of: (1) Igabele v. The State (2006) 6 NWLR (Pt.975) p.100 at p.127 and (2) Ugboji v. State (2017) LPELR-43427 (SC).
PER OMOLEYE, J.C.A.

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State per U.M. Na’abba, J. (hereinafter referred to as “the trial Court”) delivered on the 8th of February, 2017 in Suit No. K/162C/2015.

The background facts of this matter from the perspective of the Respondent who was the Prosecution before the trial Court are that, the Appellant Abdulrazaq Umar, sequel to a prior animosity, stabbed one Baffa Muhammad with a knife on the 28th of August, 2014 at Doraji Karama Quarters, Gwale Local Government Area of Kano State. The said Baffa Muhammad was sitting at the frontage of his house reading the Holy Qur’an at the time of the attack. Baffa Muhammad screamed with pain when the Appellant stabbed him and thereby attracted the attention of his brother Auwalu Muhammad now deceased, who came out armed with a stick, ran after the Appellant who was already on his bicycle about to leave the scene. However, on sighting Auwalu Muhammad the deceased, the Appellant alighted his bicycle and also stabbed Auwalu Muhammad. The Appellant, after the fatal attacks on the two men, fled from the scene of the crime.

The two men who suffered very serious injuries were taken to Murtala Mohammed Specialist Hospital, Kano. However, Auwalu Muhammad did not survive the injuries as he died on the way to the hospital and was confirmed dead on arrival at the hospital by the doctor on duty. The other victim of the attack, Baffa Muhammad was admitted for the treatment of the injuries sustained by him. The injuries were also quite fatal and life changing, so much so that Baffa Muhammad thereafter has a permanent deformity on his leg which has impaired his mobility.

The matter was reported at the Dorayi Babba Divisional Police Station. The Appellant was subsequently apprehended in his father’s house wherein the knife he used in the crime was recovered. The Police also visited the hospital where the second victim of the attack received treatment and took photographs of the deceased’s body. The case was later transferred to the Homicide Section of the Kano State Crime Investigation Department (CID) for detailed investigation.

During the investigation of the case, the Appellant was duly charged with culpable homicide punishable under Section 221 of the Penal Code, Laws of Kano State, 1991. The Appellant volunteered some statements which are confessional in nature. At the close of investigation, two charges were preferred against the Appellant. The charges state verbatim as follows:
“1ST HEAD OF CHARGE:
That you AbdulRazaq Umar of Dorayi Karama Quarters, Gwale Local Government Area of Kano State, on or about the 28th day of August, 2014 at about 08:45 hours, at Dorayi Karama Quarters, within Kano Judicial Division did commit culpable homicide punishable with death in that you caused the death of one Auwalu Muhammad of Dorayi Karama by doing an act to wit; you stabbed him with a sharp knife at the back of his ribs with the knowledge that death would be the probable consequence of your act and you thereby committed an offence punishable under Section 221 of the Penal Code, Laws of Kano State of Nigeria, (Cap. 105) 1991.
2ND HEAD OF CHARGE:
That you AbdulRazaq Umar of Dorayi Karama Quarters, Gwale Local Government Area of Kano State, on or about the 28th day of August, 2014 at about 08:40 hours, at Dorayi Karama Quarters, within Kano Judicial Division voluntarily caused hurt to one Baffa Muhammad by means of knife which is an instrument for stabbing, as a result, he suffered knife injuries on his shoulder and thigh and had a fracture on his leg which makes him had permanent deformity and thereby committed an offence punishable under Section 248(2) of the Penal Code, Laws of Kano State of Nigeria (Cap. 105) 1991.”

At the arraignment of the Appellant before the trial Court on the 29th of February, 2016, the Appellant pleaded not guilty to the two charges. In the bid to establish the case against the Appellant, the Respondent fielded six witnesses and tendered in evidence some materials as exhibits. At the close of the case of the Respondent, the Appellant entered his defence. The Appellant gave evidence personally and called an additional witness but he did not tender any exhibits in evidence. After the case of the defence had been closed, the trial Court ordered the filing and exchange of the Written Addresses of the parties’ counsel in support of their respective cases. However, before the adoption of the Written Addresses, the Respondent was granted permission to amend the charges against the Appellant. The amended charges were read over and explained to the Appellant who again pleaded not guilty to the offences with which he was newly charged. Thereafter the Appellant’s Counsel was granted permission to recall PW3 and PW4 for further cross-examination.

Subsequently, the Written Addresses of the respective parties’ Counsel were adopted. The considered judgment of the trial Court in the case was delivered on the 8th of February, 2017. In its said judgment, the trial Court found that the Respondent had proved the two charges preferred against the Appellant. The Appellant was therefore convicted as charged, sentenced to death by hanging on the first charge of culpable homicide punishable with death and further sentenced to two years imprisonment on the second charge of causing hurt.

The Appellant is dissatisfied with the judgment of the trial Court convicting him and sentencing him to death by hanging. He therefore filed this appeal against the said judgment to this Court vide his Notice of Appeal dated and filed on the 6th of March, 2017. The Appellant was subsequently granted leave by this Court to amend the original Notice of Appeal. The Amended Notice of Appeal of eight grounds of appeal was duly filed on the 25th of September, 2019. For good grasp and easy referencing, the eight grounds of appeal with their particulars are hereunder reproduced unedited as follows:
“GROUND ONE:
The learned trial High Court Judge erred in law in admitting and relying heavily on Exhibits 1, 3 and 3(a), the alleged confessional statements of the Appellant which are in English language when the Appellant only understands Hausa language and his alleged statements were made in the said language thereby occasioning a miscarriage of justice.
PARTICULARS
(I) The Appellant understands Hausa language and his alleged confessional statements were made in the said Hausa language.
(ii) The Appellant’s statements were recorded in a language other than which they were made.
(iii) That the Appellant’s statements having been made in Hausa language same ought to be recorded in the said Hausa language and later translated into English language which is the language of the Court.
(iv) That both the original statement made in Hausa language and its English translated copy ought to have been tendered in evidence.
GROUND TWO
The learned trial Judge erred in law when in convicting the Appellant he relied heavily on Exhibit 2, the purported weapon used in committing the alleged offence when there was no credible evidence on record establishing a nexus between Exhibit 2 and the offence for which the Appellant was charged.
PARTICULARS
(i) Exhibit 2 was not recovered at the alleged scene of crime.
(ii) The Appellant did not admit that Exhibit 2 was the weapon allegedly used in the commission of the crime of culpable homicide as charged.
(iii) There was no evidence of any scientific medical examination of the alleged blood stains on Exhibit 2 to establish whether it was the blood of the deceased that was on it.
GROUND THREE
The learned trial High Court Judge erred in law when he held thus:-
“In the final analysis, it is my humble view that the prosecution has proved the charge of culpable homicide punishable with death under Section 221 (B) of the Penal Code and I (sic) hereby convicted as charged.”
PARTICULARS
(i) The standard of proof in a criminal trial is proof beyond reasonable doubt.
(ii) The Prosecution’s case is replete with contradiction in material respect especially the evidence of the two alleged eye witnesses viz-a-viz the charge i.e. the evidence of PW3 was to the effect that the Appellant stabbed the deceased on his ribs while the evidence of PW4 was to the effect that the Appellant stabbed the deceased on his chest.
(iii) The charge alleges that the Appellant stabbed the deceased at the back of his ribs.
(iv) Count one charge was to the effect that the Appellant stabbed the deceased at the back of his ribs.
(v) It was never the Prosecution’s case that the Appellant inflicted multiple stab wounds on the deceased.
(vi) In the premise of the foregoing, there exists a doubt as to the nature of the wound which led to the death of the deceased.
GROUND FOUR
The learned trial Judge erred in law when he held thus:-
“For the purpose of emphasis, I wish to state that all of the witnesses who gave evidence for the prosecution were clear and unambiguous and were hardly challenged by way of cross-examination. Their testimonies therefore stand clear and this Court had no alternative but to believe them. The few minor inconsistencies were irrelevant as far as the guilt of the accused person is concerned. They are not therefore fatal to the two charges against the accused person…”
And thereby occasioned a miscarriage of justice.
PARTICULARS
(i) There was material contradiction between the evidence of the two purported eyewitnesses i.e. PW3 and PW4 viz a viz the charge against the Appellant.
(ii) While the evidence of PW3 was to the effect that the Appellant stabbed the deceased on his ribs, the evidence of PW4 was to the effect that the Appellant stabbed the deceased on his chest.
(iii) Count one of the charge was to the effect that the Appellant stabbed the deceased at the back of his ribs and this was the findings of the trial Court.
(iv) It was never the Prosecution’s case that the Appellant inflicted multiple stab wounds on the deceased.
(v) In the foregoing premise, there exist a doubt as to the nature of the injury which occasioned the death of the deceased.
GROUND FIVE
The learned trial High Court Judge erred in law when he held thus:-
“There was no iota of evidence adduced by the defense to show that the deceased posed a threat (sic) the accused person that will warrant him to stab the deceased at the back of his ribs.”
Thereby occasioning a miscarriage of justice.
PARTICULARS
(i) The Appellant had timeously at the earliest opportunity, in making his statement stated that the deceased attacked him with a stick and knife.
(ii) The learned trial Judge had made a finding of fact that the Appellant said that the deceased beat him and which evidence he said he disbelieved albeit without stating any reason for so doing.
GROUND SIX
The learned trial High Court Judge erred in law when he held thus:-
“In the instant case, there is no evidence that the deceased attacked the accused with the stick. I did not believe the evidence of the accused person that the deceased beat him and therefore the defense cannot avail him.”
Thereby occasioning a miscarriage of justice.
PARTICULARS
(i) The Appellant at the earliest opportunity raised the defense of self-defense.
(ii) The Appellant’s evidence on the point was not challenged nor discredited during cross-examination.
(iii) There was therefore no basis for the rejection of the Appellant’s evidence on self-defense by the learned trial judge and in any event the learned trial judge did not adduce any reason for rejecting this piece of evidence.
GROUND SEVEN
The trial Court erred in law and occasioned a grave miscarriage of justice when it displaced a presumption of innocence of the Appellant by requiring the Appellant to prove his innocence and exonerate himself from the charge.
PARTICULARS
(i) Under Nigeria Legal System, an Accused Person is presumed innocent until proven guilty by the Prosecution.
(ii) The trial shifted the burden of proving the guilt of the Accused Person to the Appellant in holding that:
‘From the totality of the evidence of the Defence, there is no credible evidence adduced capable of exonerating the Accused Person from the Charge of Homicide against him.’
GROUND EIGHT
The trial Court erred in law and occasioned a grave miscarriage of justice when it held that:
“The Accused Person in this case failed to proof the three elements as enshrined by law for the defence of provocation to avail him.”
PARTICULARS
(i) The Appellant gave unchallenged evidence of the deceased attacking and beating him with a stick.
(ii) The testimony of the Appellant of provocation was direct and was neither controverted nor contradicted by the Prosecution.
(iii) There was no basis in law and in fact for the Court to discountenance the defence of provocation put up by the Appellant.”

In deference to the rules of practice of this Court, briefs of argument were filed for the parties by their respective Counsel. The Appellant’s Brief of Argument dated 23rd of May, 2019 was filed on the 27th of May 2019. The brief was settled by the Appellant’s Counsel Mr. A.O. Odum of the law firm of A.O. Odum & Co. In the brief, the three issues donated for the determination of the appeal state verbatim thus:
“i. Whether the Appellant was not denied a fair hearing in the determination of his case by the trial Court. (Grounds 1).
ii. Whether in view of the totality of the evidence adduced in this case, the prosecution can be said to have discharged the burden of proof beyond reasonable doubt of the crimes alleged in this case. (Grounds 2, 3, & 4).
iii. Whether the trial Court wrongfully convicted the Appellant on the two counts, considering the defences of self-defence and provocation raised and established by the Appellant. (Grounds 5 and 6).”

The Respondent’s Brief of Argument dated and filed on the 17th of September, 2021 was deemed properly filed on 12th of October, 2021. The brief was settled by the Respondent’s Counsel, Musa Abdullahi Lawan, the Attorney General of Kano State. The three issues crafted for the determination of the appeal read verbatim as follows:
“(a) Whether the Respondent has proved its case against the Appellant beyond reasonable doubt.
(b) Whether the trial Court was right in admitting Exhibits 1, 2, 3 and 3a and relying on same to reach its decision.
(c) Whether the trial Court considered the defenses raised by the Appellant before it in arriving at its decision.”

Having perused the two sets of issues donated by the parties, I am of the firm view that they are analogous when juxtaposed. I find that issue one in the Appellant’s brief and issue two in the Respondent’s brief have been distilled from ground one of the grounds of appeal. However, issue two in the Respondent’s brief is more apposite to ground one of the grounds of appeal. Issues two and three in the Appellant’s brief distilled from grounds two, three and four of the grounds of appeal are akin to issues one and three in the Respondent’s brief distilled from grounds five and six of the grounds of appeal. As I stated earlier on, the issues donated by the Respondent are more apt and I shall adopt them in resolving this appeal. I will however rearrange them, consider issue (b) first and renumber it as issue one and thereafter take issues (a) and (c) seriatim and renumber them as issues two and three.

ISSUE ONE
“Whether the trial Court was right in admitting Exhibits 1, 2, 3 and 3A and relying on same to reach its decision?”

THE SUBMISSIONS OF THE APPELLANT’S COUNSEL
The legal position is that, if the statement of an accused is made in a language other than English language and it is interpreted to English language by an interpreter to the recorder, both the recorder and the interpreter must be called to give evidence, on the point, at the trial of the accused, otherwise the contents of the statement will be hearsay and be inadmissible in evidence. See Ifaramoye v. State (2017) LPELR-42031 (SC) pg. 19-20 and Gidado Adamu V. The State (2019) LPELR-46902 (SC) pgs. 38-48. In the instant case, the trial Court Judge fell into grave error in admitting and relying heavily on Exhibits 1, 3 and 3(a), the alleged confessional statements of the Appellant which were made in English language when the Appellant only understands Hausa language and his alleged statements were made in the said language. The Appellant’s statements having been made in Hausa language same ought to have been recorded in the said Hausa language and later translated into English language which is the language of the Court. The interpreter ought also to have been called to give evidence on the point at the trial of the Appellant.

In the absence of the two statements in evidence and coupled with the absence of the interpreter, Exhibits 1, 3 and 3(a) became hearsay and inadmissible and the reliance of the trial Court on same denied the Appellant his right to fair hearing and the judgment entered against the Appellant based thereon is a nullity and liable to be set aside.

THE SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The trial Court was right in admitting Exhibits 1, 2, 3 and 3a in evidence and properly relied on same to reach its decision. Exhibits 1, 3 and 3a are the confessional statements of the Appellant in respect of the offence with which he was charged. The Appellant volunteered his statements in Hausa language and the statements were recorded in English language. The fact that the statements were not recorded in Hausa language, the language in which they were made is not fatal to the case of the Respondent. PW5 and PW6 are the Police Officers who recorded the statements, they understand and speak Hausa and English languages fluently.

It is noteworthy that the Appellant was ably represented by a counsel at his trial and the counsel did not raise an objection to the tendering of Exhibits 1, 3 and 3a. The law is that a valid voluntary confession tendered without objection and admitted is good evidence. It is also trite law that where a confession is tendered without objection, the trial Court is also relieved from conducting an inquiry into whether the confession was made voluntarily or not. See (1) Osung v. State (2012) 18 NWLR (Pt. 1332) p. 256; (2) Chief Bruno Etim v. Chief Okon Udo Ekpe & Anor (1983) SCNJ p. 120 and (3) Alade v. Olukade (1976) SC 183.

It was never an issue at the trial that the statements of the Appellant made both at the Divisional Police Station and State CID were recorded through an interpreter. It is evident that PW5 and PW6 were the recorders as well as the interpreters. The Appellant did not disown the statements that were recorded in English language as the true and correct versions of the statements that he made in Hausa language.

Regarding the knife, the weapon used by the Appellant in committing the offence with which he was charged, it is clear from the evidence of the Respondent’s witnesses, as can be gleaned from the record of appeal before this Court, that the Appellant fled with the knife after stabbing his victims. It is also in evidence that the Appellant was arrested in his father’s house and the same knife was recovered by PW6 at the time of the arrest of the Appellant in his said father’s house.

It is settled law that the burden placed on the prosecution in proving a murder case does not include the tendering of the murder weapon in order to secure a conviction. For the ingredients of proving the offence of murder does not include the tendering the murder weapon. See (1) Olayinka v. State (2007) 4 SCNJ p. 72 and (2) Garba V. State (2006) 6 NWLR (Pt.661) p. 378 at p. 388, para. C. Exhibit 2, the knife used in committing the offence was duly tendered in evidence. It is however inconsequential if the weapon was not tendered in evidence. It is inconsequential.

Furthermore, the objection of the Appellant’s at the trial Court at the point of tendering the knife, the murder weapon, Exhibit 2, the objection of the Appellant’s counsel did not include the issue of forensic analysis of the blood found on the knife in order to know whose blood it was.

Sequel to the foregoing enunciations, it is crystal clear that this appeal is without substance, hence this Court is urged to dismiss it and affirm the decision of the trial Court.

RESOLUTION OF ISSUE ONE:
Preceding the resolution of this issue, it is pertinent to state that this appeal is against the conviction and sentence of the Appellant for the offence of culpable homicide punishable with death contrary to the provision of Section 221(B) of the Penal Code, Laws of Kano State, 1991, the first charge preferred against the Appellant. The resolution of the appeal will therefore revolve around the said offence.

On the essential ingredients that must be proved to establish the offence of culpable homicide punishable with death, in the case of:
Michael v. State (2008) LPELR-1874, the Apex Court per Musdapher, JSC (as he then was, later CJN, now of blessed memory) at p.13, paras. A-G had the following to say:
“In order to establish the offence of culpable homicide punishable with death, the law requires the prosecution to prove essentially the following:
(a) that the death of a human being has actually occurred;
(b) that such death was caused by the act of the accused person;
(c) that the accused person’s act or omission was done with the intention of causing death or grievous bodily harm and that the accused knew that death would be a probable consequence of his act. It is also trite that a basic and essential element of the offence of culpable homicide required to be proved that the cause of death must be linked to the act or omission of the accused. See Dare Kada v. The State (1991) 8 NWLR (Pt.208) 134; Nwokedi v. C.O.P. (1977) 3 SC 35. Where the deceased died on the spot or soon after an injury was inflicted by an accused person, the accused person will be guilty of causing the death. See Adamu v. Kano N.A. (1956) SCNLR 65; Bakuri v. The State (1965) NMLR 163. It is also the law that in a charge of culpable homicide, the nature of the weapon used, its weight and size are in the circumstances of the case essential in determining whether the conviction should be one of culpable homicide punishable with death or not. See Umaru Gwandu v. Gwandu N.A. (1962) 1 All NLR 545 at 546; (1962) 2 SCNLR 293.”

The law is equally trite under this country’s criminal jurisprudence as enshrined in its grund norm, the Constitution of the Federal Republic of Nigeria, 1999 (as amended), that an accused person is presumed innocent until he is proved guilty. It is therefore the legal obligatory burden of the prosecution to prove the guilt of the accused person and the standard of such proof in criminal cases is proof beyond reasonable doubt. In the case of: Tobi v. State (2019) LPELR-46537, the Supreme Court per Odili, JSC succinctly reiterated these age-old legal principles thus:
“It is now very well settled that the principle of criminal law is that the burden of proving a crime rests squarely on the prosecution with a standard of proof that is beyond reasonable doubt which in effect means that every ingredient of the offence must be established to that standard of proof without leaving any reasonable doubt as to the guilt of the accused in the case.”
See also Section 36(5) of the 1999 Constitution which provides that, every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Further on the burden and standard of proof generally in criminal cases are the very far reaching provisions of Sections 132, 135(1) and (2), and 139 of the Evidence Act, 2011 as follows:
“Section 132(1) – Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
Section 132(2) – When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Section 135(1) – If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
Section 135(2) – The burden of proving that any person had been guilty of a crime or wrongful act is, subject to the provisions of Section 139 of the Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
Section 139 – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
The law is therefore well established that, in order to obtain conviction on any charge or offence or in criminal cases generally, the burden of proof is on the prosecution throughout and the burden is immutable. In other words, there is no burden on the accused person to prove his innocence. See the cases of: (1) Obande v. State (1991) 6 NWLR (Pt.198) p.435 at p.456; (2) State v. Ogbubunjo & Anor (2001) LPELR-3223 (SC); (3) Ikpo v. The State (2016) 2-3 SC (Pt.III) p.88 and (4) Ankpegher v. the State (2018) LPELR-43906 (SC).

On when it can be said that the prosecution has proved its case beyond reasonable doubt, Oputa JSC (of blessed memory) in the case of: Oteki v. A.-G. Bendel State (1986) LPELR-2823 (SC) at pgs. 41-42, paras. D-A had the following to say:
“Every now and again, the question has been asked, how many witnesses should the prosecution call to prove its case beyond reasonable doubt?
What is the meaning of proof beyond reasonable doubt? Bucknill, L.J. in Bater v. Bater (1951) p.35 observed: “I do not understand how a Court can be satisfied that a charge has been proved……if, at the end of the case, it has a reasonable doubt whether the case has been proved. To be satisfied and at the same time to have a reasonable doubt seems to me to be an impossible state of mind. ”In other words, when a Court is satisfied that the charge has been proved, then that case has been proved, beyond reasonable doubt.”

It is trite therefore that, proof beyond reasonable doubt does not mean proof beyond all doubts or all shadow of doubts. It simply means establishing the guilt of an accused person with compelling and conclusive evidence. Thus, before it can be rightly said that the prosecution has proved its case beyond reasonable doubt, all the ingredients of the offence charged must be established, in the instant case, the offence charged is culpable homicide punishable with death. In other words, if one ingredient is left out then there is no proof beyond reasonable doubt. See also the cases of: (1) Alabi v. State (1993) LPELR-397 (SC); (2) Ekpo v. State (2018) LPELR-43843 (SC) and (3) Oteki v. A.G. Bendel State (Supra).

As a corollary, where there is the existence of any doubt in the case of the prosecution, such doubt must be resolved in favour of the accused person. See the cases of: (1) Igabele v. The State (2006) 6 NWLR (Pt.975) p.100 at p.127 and (2) Ugboji v. State (2017) LPELR-43427 (SC).

The grouse of the Appellant under this issue has to do with the mode employed by the Respondent/Prosecution in proving the offence with which the Appellant/Accused Person was charged, that is, culpable homicide punishable with death. 

Well established is the law that, in discharging the burden of proof vested in the prosecution, the prosecution may employ any one or more of the following four modes to establish the commission of a crime viz:
(i) By direct evidence, also known as evidence of eye witness;
(ii) By confessional statement of the accused person;
(iii) By circumstantial evidence, where direct evidence or confessional statements are absent and
(iv) By admission by conduct of the accused person. See the cases of: (1) Dapara Gira v. The State (1996) 4 SCNJ p.95 at p.106; (2) Moses v. The State (2003) FWLR (Pt.141) p.1969 at p.1986 and (3) Ogogovie v. The State (2016) LPELR-40501 (SC).

From the circumstances of the instant case, it is crystal clear that in proving the offence of culpable homicide punishable with death with which the Appellant was charged, the Respondent employed the two modes of direct evidence, that is evidence of eye witness and the confessional statement of the Appellant. The Appellant under this issue is challenging the authenticity of the confessional statements allegedly made by him. 

Indeed, the law is equally trite that, if an accused person pleads guilty and admits the facts as laid, the prosecution has no further duty to prove what has been admitted. The firm principles of law relating to the admissibility or otherwise of confessional statements are reiterated in the case of: Ofordike v. The State (2019) LPELR-46411 per Okoro, JSC at pgs. 15-16, paras. A-E as follows:
“The law is well settled on issues relating to admissibility or otherwise of confessional statements by accused persons. A confessional statement is a statement by an accused person which unequivocally confesses to the commission of an offence charged. Such a statement to be of any probative value, must be clear, precise and unequivocal. It must also be direct, positive and should relate to the accused person’s own act, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See Akpan v. The State (1992) 7 SCNJ 22, Yesufu v. State (976) 6 SC 167, Magaji v. The Nigerian Army (2008) 8 NWLR (Pt. 1089) 338. Where a confessional statement is voluntarily made, it is the best evidence which the trial Court can rely to convict an accused person. But in most cases, at the trial, accused persons raise objection ranging from that they did not make the said statement or that they were coerced to make it or that they did not sign it. These are issues that are usually raised in Court on a daily basis. The law is trite that in circumstance where the prosecution seeks to tender the confessional statement of an accused person and it is objected to and challenged on the ground that it was not made voluntarily, a trial within trial is conducted for the sole purpose of finding out if the statement was made voluntarily or whether the confessional statement was extracted from the accused by force or threat of punishment or by an form of inducement. If at the end of the trial within trial the Judge is satisfied that the confessional statement was not voluntary, such a statement is not admissible in evidence. If on the other hand the statement is adjudged voluntarily made, it is admitted in evidence. In both cases, the trial Judge should rule on it accordingly and that brings the trial within trial to an end and the main trial continues. See Ibeme v. The State (2013) 10 NWLR (Pt.1362) 333, Solola & Anor v. State (2005) 11 NWLR (Pt.937) 460, Federal Republic of Nigeria v. Iweka (2013) 3 NWLR (Pt.1341) 285.”

In the instant case, it is pertinent to note that the confessional statements made by the Appellant, Exhibits 1, 3 and 3A were tendered through PW5 and PW6 and admitted in evidence by the trial Court without the objection of the Appellant – see pages 21, 22, 24 and 25 particularly at page 22, lines 6 to 9 and page 25, lines 11 to 12 all of the record of appeal. It is however only in this appeal that the Appellant is raising a stink to the admissibility of the said Exhibits 1, 3 and 3A on the ground that the Appellant made his statements in Hausa Language. According to the Appellant’s learned Counsel, the said statements having been made in Hausa Language, ought to have been recorded in Hausa Language and both the Hausa Language and the translated English Language versions tendered in evidence. That both the translators and recorders of the two versions ought also to have been called to give evidence of their roles at the trial. As stated hereinbefore, the Appellant did not object to the admissibility of the two confessional statements at the trial Court. Even in the written address of his counsel, no mention was made of the competence or otherwise of the statements. The only submission made by his Counsel in his written address is that, the statements are not detailed enough for the trial Court to act on to convict the Appellant – see page 38 lines 21 to 26 of the record of appeal.

The law is trite that a party cannot change the nature of his case on appeal, as an appeal is a continuation of trial and not an opportunity to argue a fresh case. There must therefore be consistency in prosecuting and defending a case at the trial Court as well as in the appellate Courts. See the cases of: (1) Adegoke Motors Ltd. v. Adesanya (1989) LPELR-94 (SC); (2) Ngige v. Obi (2006) 14 NWLR (Pt.999) p.1 at p.10; (3) Olufeagba v. Abdulraheem (2009) 18 NWLR (Pt.1173) p.384; (4) Aiyeola v. Pedro (2014) 13 NWLR (Pt.1424) p.409 at p.447 and (5) Ladoja v. Ajimobi & Ors. (2016) LPELR-40658 (SC).

Now on the proposition of the Appellant that Exhibits 1, 3 and 3A are hearsay evidence, the law is indeed clear that, whenever an interpreter is used in obtaining the statement of an accused, such a statement will be inadmissible unless the interpreter is called as a witness in the tendering of the statement. Also where the statement is recorded in the dialect in which it is made, and same is translated into English Language, it is desirable that both the dialect and English versions are tendered in evidence, with the interpreter and recorder called to give evidence regarding the truth of the statement. The situation is however different where the Police Officer/Recorder is also the interpreter and the statement tendered in evidence is recorded in English Language and not in the dialect of the accused person. What is more, if the accused person is literate in English language, the language in which the statement is eventually recorded, the accused person cannot complain and argue that he was not given a fair hearing in the circumstances. 

This is the scenario of the instant case. PW5 and PW6 are both the interpreters and recorders of Exhibits 1, 3 and 3A. PW5 and PW6 gave evidence at the trial that they recorded Exhibits 1, 3 and 3A in English Language, even though the Appellant made them in Hausa Language – see lines 6 to 10 at page 25 of the record of appeal. 

Noteworthy is the fact that although the Appellant chose to make his statements in Hausa Language, he is literate in English Language. This can be gleaned from his statement Exhibit 1. In Exhibit 1, the Appellant indicated that he completed his secondary school education at Government Secondary School, Goron-Dutse, Kano. Furthermore, under cross-examination, the Appellant stated that he can read and write – see line 14 at page 29 of the record of appeal. Also, while giving evidence in his own defence at trial, the Appellant as DW1 stated that he was a student – see lines 19 to 20 at page 27 of the record of appeal. There is no question in my mind that the Appellant is literate in English Language and it was his choice to make the statements Exhibits 1, 3 and 3A in Hausa Language.

As rightly observed by the learned trial Judge, all the statements were signed by the Appellant. This is equally my observation. The Appellant did not only sign the statements, the statements were read over again by PW6 to the Appellant in Hausa Language, after they had been recorded in English Language also by PW6. In a similar scenario in the case of: Jimoh v. The State (2014) 3 SCNJ p.27, the Police Officer recorded the confessional statement in English Language although the accused person made the statement in Yoruba Language. There was no Yoruba version of the statement, hence it was the statement recorded in English Language that was tendered in evidence at trial. The Supreme Court did not fault the procedure. The important thing is that the statement was tendered in evidence through the interpreter/recorder. Relying on the cases of: (1) Jimoh v. The State (2014) 3 SCNJ p.27 and (2) Olanipekun v. The State (2016) 13 NWLR (Pt.1528) p.100 at p.118 (SC), this Court took the same stance in the earlier case of: Mohammed v. The State (2019) LPELR-47045 (CA) wherein I agreed with the leading judgment delivered by Abiriyi, JCA.

In sum, I hold that Exhibits 1, 3 and 3A were properly admitted in evidence and duly relied on by the trial Court. The proposition of the Appellant in this appeal that the statements are hearsay evidence is a legal fallacy, an afterthought and I dare say an unsuccessful attempt by the Appellant to muddy his trial, conviction and sentences. It is on this note that I hold that this issue being a complete misconception on the part of the Appellant is accordingly resolved against the Appellant and in favour of the Respondent.

ISSUE TWO
“Whether the Respondent had proved its case against the Appellant beyond reasonable doubt?”

THE SUBMISSIONS OF THE APPELLANT’S COUNSEL
The burden of proving the commission of a crime lies on the prosecution, failing which a Defendant will be entitled to an acquittal. See Mohammed v. State (2016) LPELR-41328 (CA) pgs. 12-14, paras F-B. It is also settled law that the burden of proof is on the prosecution who must prove its case beyond reasonable doubt. The prosecution also has a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. See Ekpo v. State (2018) LPELR-43843 (SC) pgs. 5-6, paras. B-B and Dajo v. State (2018) LPELR-45299 (SC) p.5, paras A-D.

The trial Court fell into error when in convicting the Appellant, he relied heavily on Exhibit 2 the purported weapon used in committing the alleged offence, as there was no credible evidence on record establishing a nexus between Exhibit 2 and the offence for which the Appellant was charged. Exhibit 2 was not recovered at the alleged scene of crime. The Appellant did not admit that Exhibit 2 was the weapon allegedly used by him in the commission of the crime of culpable homicide punishable with death, with which he was charged. What is more, no evidence was led by the prosecution of any scientific medical examination of the alleged blood stains on Exhibit 2 to establish that it was the blood of the deceased that was on it.

The final decision of the trial Court that the prosecution has proved the charged of culpable homicide punishable with death under Section 221 (B) of the Penal Code is therefore not based on credible evidence before the Court.

The prosecution’s case is also replete with contradictions in material respects, especially the evidence of the Respondent’s two alleged eyewitnesses viz-a-viz the contents of the charge. The evidence of PW3 is to the effect that the Appellant stabbed the deceased in the ribs, but the evidence of PW4 is to the effect that the Appellant stabbed the deceased in the chest. While in framing the charge, the Appellant is said to have stabbed the deceased at the back of the ribs. It is not the prosecution’s case that the Appellant inflicted multiple stab wounds on the deceased. On the premise of the foregoing, there exist a doubt as to the actus reus of the offence and the doubt ought to have been resolved in the Appellant’s favour as required by law.

The prosecution failed to discharge the burden of proof placed upon it by law and was not able to prove its case against the Appellant beyond reasonable doubt. In other words, the prosecution did not discharge its general duty to rebut the presumption of innocence constitutionally guaranteed to the Appellant and the Appellant ought to have been discharged and acquitted.

This Court is therefore urged to allow this appeal and set aside the judgment of the trial Court which wrongly convicted the Appellant of the offence of culpable homicide punishable with death and wrongly sentenced him to death.

THE SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The established legal principle is that the prosecution is saddled with the evidential burden of proving a criminal case beyond reasonable doubt. This is the cardinal principle of law as laid down under Section 135 of the Evidence Act, 2011. However, proof beyond reasonable doubt does not mean proof beyond iota of doubt. Once the proof drowns the presumption of innocence of the accused, the Court is entitled to convict him although there could be shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea and actus reus, the prosecution has discharged the burden placed on it by Section 139 of the Evidence Act. Reasonable doubt is a doubt which a reasonable man might entertain and it is not fanciful doubt or imagined doubt. See Rabi Ismail Vs State (2008) NWLR (Pt. 434) p. 1567 CA.

The prosecution is required to prove its case against an accused person through all or any of the following:
a. By confessional evidence;
b. By circumstantial evidence; and
c. By evidence of eye witness.
See Emeka v. The State (2001) 5 M.J.S.C. 1 AT 12, paras. D-E. and Ilodigwe Vs State (2012) 18 NWLR (Pt. 1331) p. 1.

The ingredients of the offence of culpable homicide punishable with death under Section 221 of the Penal Code are as follows:-
(a) That the death of a human being has actually taken place.
(b) That such death has been caused by the accused.
(c) That the act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:
(i) The accused knew or had reason to know that death would be the probable and not only the likely consequences of his act; or
(ii) The accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.

In the instant case, the evidence of all the prosecution witnesses is apt in respect of the proof of the first ingredient of the offence which is that one Auwalu Muhammad is dead. See the testimonies of PW1, PW2, PW3, PW4, PW5, and PW6 respectively. These pieces of evidence were never challenged by the defence throughout the trial.

On the second ingredient of the offence, PW3 and PW4 witnessed the stabbing of the deceased by the Appellant. Exhibits 1 and 3a which are the additional statements of the Appellant corroborate his evidence in chief that he hit the deceased with the knife in his hand. PW4 further stated that when the Appellant saw the deceased come out of his house, the Appellant jumped down from his bicycle, stabbed the deceased with a knife and immediately left the scene on his bicycle. Exhibit 4, the medical report states that the deceased who was found to be dead when he was brought to the hospital. Exhibit 4 further states that there was a penetrating injury to the right part of the deceased’s neck, a deep laceration and some other lacerations on the body of the deceased. The assessments made by the medical doctor are to the effect that the cause of death of the deceased was the multiple injuries inflicted on him. It is crystal clear that the medical report corroborates the testimonies of PW3 and PW4 as to the cause of death of the deceased.

On the third ingredient of the offence, there is no doubt that the Appellant intentionally caused the death of the deceased. The requirement of the law is that an accused person must have known that death would be the probable and not just the likely consequence of the bodily injury which his act was intended to cause. Intention can be inferred from the weapon used by the accused and the severity of the injury inflicted on the deceased. See the case of Uwagboe v. State (2006) 8 QCCR 1.

In the instant case, the Appellant stabbed the deceased with the same knife he used in stabbing PW3. The Appellant’s conduct showed a complete and criminal disregard for the life and safety of the deceased and showed the intention of the Appellant to cause harm to or kill the deceased. See the testimonies of PW3 and PW4. The act of stabbing the deceased on the neck and chest/rib clearly shows that the accused intended to kill the deceased. See the case of Paul Onyia vs. State (2006) 13 NWLR (Pt.991) p.267.

The duty of the prosecution is to establish the case against the accused person by available evidence sufficient enough to prove the guilt of the accused beyond reasonable doubt. Where an accused person admits the commission of an offence through his voluntary confessional statement, in law, the prosecution is actually relieved of any further duty of proof. See F.R.N. Vs. Iweka (2013) 3 NWLR (Pt.1341) p. 285. The law is trite that confessional statements are the best form of evidence that the prosecution can rely upon and solely to secure conviction. A confessional statement made by an accused person which is properly admitted in evidence is in law the best pointer to the truth of the role played by such an accused person in the commission of the offence. Such a confessional statement can be accepted as satisfactory evidence upon which the accused can solely be convicted. See the cases of: (1) Ogoala vs. State (1991) 2 NWLR (Pt.175) 509; (2) Akpan vs. State (1986) 3 NWLR (Pt.27) 225; (3) Oseni vs. State (2012) 5 NWLR (Pt.1293) p.387, paras. A-C and (4) Nwachukwu vs. The State (2007) M.J.S.C. p.39.

The contention of the Appellant that the evidence of the prosecution is full of contradictions in material respect especially in the evidence of two eyewitnesses, is far from the truth, the contradictions in the testimony of PW3 and PW4 do not in any way affect their credibility. It is established law that when several persons are called as witnesses to testify on what they saw at a particular incident, there are bound to be discrepancies in those testimonies in respect of details. The duty of the Court in such circumstances is to concentrate on material facts of the case as they relate to the charge and not the peripherals that have no bearing on the substance of the case. It was never in dispute that the Appellant inflicted injuries on the deceased with a knife and the injuries cost the deceased his life. In fact, from the scene of the incident, the deceased could not even make it to the hospital alive, he died on the way to the hospital. What is contentious is the actual part of the body on which the injuries were inflicted. The contradictions as to which part of the body of the deceased was injured are minor and immaterial as that does not strike at the root/backbone of the charge to create a reasonable doubt in the mind of the Court.

The Appellant was rightly convicted considering the unbroken chain of events that led to the death of the deceased which is true, constant, stable and water tight. In the instant case, the evidence adduced by the Respondent points to the one and irresistible conclusion that the Appellant was the one responsible for the death of the deceased to the exclusion of any other. See the case of: Peter vs. State (1997) 12 NWLR (Pt.531) SC 1.

This Court is urged to dismiss this unmeritorious appeal and affirm the judgment of the trial Court which convicted the Appellant as charged and sentenced him accordingly.

RESOLUTION OF ISSUE TWO
As I have stated under the preceding issue, in its bid to establish against the Appellant the offence of culpable homicide punishable with death as charged, the Respondent employed not just one but two modes of legally recognised evidential proving of a crime. That is proof by direct evidence, that is, evidence of eye witnesses and also the confessional statements of the Appellant himself. I have equally earlier on in this judgment adverted to the fact that, this appeal is against the conviction and sentence of the Appellant for the offence of culpable homicide punishable with death, in charge one contrary to Section 221 of the Penal Code as none of the Appellant’s grounds of appeal touch on the second charge of the offence of causing hurt contrary to Section 248(2) also of the Penal Code. 

Also, I found under issue one above that Exhibits 3 and 3A which relate to charge one were properly admitted in evidence by the trial Court. The two statements were made by the Appellant on the same day and within two hours interval. Exhibit 3A as titled is an addition to and continuation of Exhibit 3. In the statements, the Appellant stated that, about three months prior to the incident leading to the instant case, he had a fight with PW3 and since then held a grudge against PW3. Hence, on the day in question, that is, the 28th of August, 2014, he stabbed PW3 with a sharp knife. PW3 thereby sustained injuries from which he bled. The deceased who was PW3’s brother on seeing PW3 bleeding carried a long stick and tried to hit him with same. The Appellant stated that he therefore used the same sharp knife that he used in stabbing PW3 to also stab the deceased who equally sustained injury to his back. According to him, he ran to his house to hide after the incidents but he was however arrested by the Police and taken to the Police station. He said he heard that both PW3 and his brother were taken to the hospital for treatment and that PW3’s brother died later that day.

There is no question that Exhibits 3 and 3A are confessional statements made by the Appellant. In the statements, the Appellant unequivocally confessed to the offence he was charged with. The statements are clear, precise, direct, positive and relate to the Appellant’s act of stabbing the deceased with a sharp knife. The ordinary plain inference from the statements is that the Appellant committed the offence of culpable homicide punishable with death. For the deceased, PW3’s brother who the Appellant confessed that he stabbed with a sharp knife was a human being.

PW3’s brother became deceased soon after being so stabbed. The Appellant must be taken to have intended, by his act of stabbing another human being with a sharp knife, to cause the death of or grievous bodily harm to the deceased and indeed he knew that death would likely be the probable consequence of his said act. Furthermore, there is no doubt that the death of the deceased flowed directly from the stab injuries sustained by him. As can be gleaned from the record of appeal, PW3, the deceased’s brother is not just an eye witness but also a victim of the terror unleashed by the Appellant on the fateful day. After he was stabbed by the Appellant, PW3 also witnessed the stabbing of his brother, the deceased. PW3 stated that both he and his brother were taken to the hospital for treatment. Although PW3 survived the attack, he sustained life changing injuries and is living with severe deformity to his leg as a consequence of the stab injuries sustained by him.

PW4, Murtala Isyak is also an eyewitness of the crime. PW4 is a neighbour of PW3 and the deceased and he also knew the Appellant. He stated that he came out of his house and saw the Appellant stab PW3 who tried to run away from the Appellant. That the Appellant was about leaving the scene of the crime on his bicycle but as PW3 fell down after he was stabbed, the deceased, who was attracted to the scene of crime by the shouting of PW3, came out of the house and walked toward the Appellant. The Appellant got down from his bicycle and also stabbed the deceased in the chest. Under cross-examination, PW4 said he did not do anything at the time of the stabbing because he feared for his own life. However, as soon as the Appellant left the scene on his bicycle, PW4, in company with two other neighbours, took PW3 and the deceased to the hospital where it was discovered that the deceased was already dead.

PW1 Sagir Ibrahim and PW2 Fatima Abubakar, mother of PW3 and the deceased, are not eyewitnesses to the commission of the crime, they only accompanied the deceased and PW3 to the hospital. According to PW1, the crime was reported by him to the Dorayi Babba Divisional Police station after the deceased was confirmed dead in the hospital on 28/8/2014. The body of the deceased was later taken to the Police station where photographs of the corpse were taken and the corpse was subsequently released to the family for burial.

PW2 stated that the deceased died on the way to the hospital. She also confirmed the hostility amongst the Appellant, PW3 and the deceased prior to the fateful day. PW2 stated further that the Appellant had physically assaulted the deceased and in her presence the Appellant also threatened to kill the deceased prior to the incident under consideration.

PW5 is the Investigating Police Officer, Inspector Musa Abdullahi. He stated that on 29/8/2014 the case was referred to his duty post, the Homicide Section of the State CID, from the Dorayi Babba Divisional Police Station for detailed investigation. He stated that on the referral, the Appellant, the recovered knife used by the Appellant in stabbing the victims and the case file were transferred to his department. The knife was registered by the Exhibit Keeper and tendered in evidence as Exhibit 1 through him. PW5 obtained the Appellant’s statement, Exhibit 1. The statements of the complainant and other witnesses were also obtained. Under cross-examination, PW5 stated that Exhibit 2, the knife used by the Appellant in stabbing the deceased as well as PW3, was handed over to him by the Divisional Investigating Police Officer, PW6.

PW6, Inspector Anwalu Ibrahim was a Sergeant at the time of the incident and he was the Dorayi Babba Divisional Investigating Police Officer. He stated that PW1 is the complainant who reported the stabbing of the two victims by the Appellant. The two victims were taken to the Murtala Mohammed Specialist Hospital, Kano, where one of them, Auwalu Muhammed was confirmed dead on arrival thereat and the other victim PW3 was admitted for treatment. PW6 received a lead on the whereabout of the Appellant. The Appellant was arrested by PW6 and his team members. The knife used by the Appellant in committing the crime was recovered from the Appellant’s father’s house where his said father tried to hide it and the knife was found with blood stains on it. The statements made by the Appellant were recorded by PW6. The said statements of the Appellant were made in Hausa Language but duly recorded by PW6 in English Language. The two statements which are confessional in nature were tendered in evidence at trial as Exhibit 3 and 3A, through PW6. 

Also PW6 obtained the Medical Report issued on the deceased by Dr. Maharaz M. Musa of the Accidents and Emergencies (A&E) of the Murtala Mohammed Specialist Hospital, Kano-Zone 8. The medical report was tendered in evidence as Exhibit 4 through PW6. In Exhibit 4, it is stated that the deceased was brought in dead on 28/8/2014. Furthermore, it is also stated in the medical report that on examination, the deceased had “penetrating injury to the right part of the neck,.. a deep laceration ….. and some other lacerations. … there was no respiratory effort, pupils are fixed and dilated, nil peripheral pulses, and no cardiac activity. …” 

The purport of Exhibit 4 is that the deceased died on the way to the hospital.

After the initial investigation by the Divisional IPO, PW6 and his team and because of the seriousness of the crime, the report of the investigation together with the Appellant and the knife recovered were transferred to the State CID for detailed investigation.

It is crystal clear from other pieces of evidence garnered by the Respondent that the death of Auwalu Muhammed can be directly linked to the act of the Appellant.

On the confessional statements of the Appellant, Exhibits 3 and 3A, the learned trial Judge found and held verbatim as follows:
“I therefore hold that the accused person made the confessional statement(s) voluntarily to PW5 and PW6. The accused person did not deny making the statement and it was admitted without any objection. The law is that a Court may convict on a confessional statement alone. Learned counsel to the defence urge the Court not to rely on the confessional statement because it is not consistent with the facts proved by the prosecution. This submission in my view has no force of law because once a confessional statement is tendered and admitted without any objection the Court is free to act on it….
However, it is desirable that the Court should look at some evidence outside the confession which will tend to show that the confession is probable and true. See IKEMSON Vs THE STATE (1989) 3 NWLR Pt. 84.
Our purposes, it is desirable to look at some evidence outside the confession which will tend to show the confession was probable and true especially as it may if it is available, give more weight to the statement.
A sharp knife with blood stain on it was removed by PW5 sic (PW6) in the house of the accused. The confessional statement showed that the accused person stabbed the deceased with a knife. The medical report (Exhibit 4) showed that the wounds on the deceased was caused by a sharp object. The knife recovered was a sharp object very similar in description to what PW5, (PW6) recovered from the house of the deceased. To my mind, this re-enforces the confessional statement and tends to show it was probable and true.
There is no doubt that the prosecution has proved that the accused stabbed the deceased at his ribs until he was badly injured which as a resulted to his death. This aspect of the ingredient is prove beyond reasonable doubt.
On the 3rd ingredient of the offence, did the accused person caused the death of Auwalu Muhammad with intent to cause it? There is ample evidence which I believed that the accused stabbed the deceased with a sharp knife. Even if it is held that he did not do so with intent to kill the deceased, could he not have expected that by using Exhibit 2 to stab the deceased back of his ribs, he would probably died? I have examined Exhibit 2 again, it is a sharp knife capable of inflicting a deadly stab. I am of the firm view that if such a knife is used in stabbing a sensitive part of the body such as ribs, death would be the probable consequence. The accused has confessed of stabbing the deceased and Exhibit 4 shows that the deceased died from bleeding.
In sum, I am of the firm view that the accused person caused the death of Auwalu Muhammad by stabbing him on the ribs not with intent to cause death but he had reason to know that his death would be the probable consequence of his act under Section 221 (B) of the Penal Code. The prosecution has discharged the burden place on it and has proved the offence.”
As rightly reiterated by the learned trial Judge, the law is on solid ground now that confession alone is sufficient to support conviction without further corroboration so long as the Court is satisfied of the truth of the confession. In my view, the truth of Exhibits 3 and 3A is not in doubt. Exhibits 3 and 3A were admitted in evidence without any objection by the Appellant. As already set out above, the learned trial Judge did not make use of the confessions alone in convicting the Appellant, he also considered other material pieces of evidence outside of it. Very germane are the evidence of PW3 and PW4 who were eyewitnesses to the commission of the crime by the Appellant. Exhibit 2, the knife used by the Appellant in stabbing the deceased was recovered by PW6 in the Appellant’s father’s house soon after the commission of the crime and at the point of the arrest of the Appellant. Exhibit 2 was tendered in evidence through PW5, the Appellant did not appeal against the ruling of the trial Court at pages 9 to 10 of the records of appeal, admitting Exhibit 2 in evidence.

Equally important is Exhibit 4, the medical report stating that the deceased was brought in to the hospital dead. The injuries observed on the deceased during the examination of his body are extensive. There are penetrating injury and deep lacerations which are indicative of the attack on the deceased by the Appellant with the use of a sharp object.

Applying the principles of law reiterated under issue one above to the question posed under the instant issue, I have no justifiable reason to deviate from the correct findings of the trial Court as reproduced hereinbefore.

The Appellant’s Counsel had also opined that the case of the Respondent was replete with contradictions in material respects. According to him, the witnesses of the Respondent are not in agreement regarding the part of the body the deceased was stabbed by the Appellant. That PW3 said the deceased was stabbed in the ribs, that PW4 said he was stabbed in the chest, while it is stated in the Charge that the deceased was stabbed at the back of the ribs. I find the above submissions quite laughable. In my view, it does not really matter whatsoever part of the body, the deceased was stabbed by the Appellant. The most important point is that, vide the Appellant’s confessional statements, the evidence of eyewitnesses and the report of the medical doctor who examined the corpse of the deceased, the Appellant stabbed the deceased with a sharp knife. The sworn evidence of the Appellant also points to the nagging fact that he stabbed the deceased. While giving his defence as DW1, the Appellant stated on oath that he was carrying a sharp weapon and he stabbed the deceased with it, although according to him it was a mistake, whatever that means – see lines 1 to 5 at page 29 of the record of appeal. What is more, on the point of the alleged contradictions in the evidence of the Respondent, the trial Court had this to say:
“For the purpose of emphasis, I wish to state that all of the witnesses who gave evidence for the prosecution were clear and unambiguous and were hardly challenged by way of cross-examination. Their testimonies therefore stand clear and this Court had no alternative but to believe them. The few minor inconsistencies were irrelevant as far as the guilt of the accused person is concerned. They are not therefore fatal to the two charges against the accused person. See STEPHENS Vs C.O.P (1986) 2 NWLR (Pt. 25) 673 and 679.” (See paragraph four at page 91 of the record of appeal).

I cannot agree more with the foregoing opinion of the learned trial Judge. It is very sound in law, emanating from the cases presented before him by the parties and as can be gleaned from the record of appeal. I fail to find any material contradiction in the case of the Respondent against the Appellant. Rather, I find the case presented by the Respondent against the Appellant unassailable.

The Appellant’s Counsel had also contended that there is no nexus between Exhibit 2 and the offence with which the Appellant was charged. That the Respondent did not adduce evidence to prove that the blood found on Exhibit 2 was that of the deceased. That Exhibit 2 was not recovered from the scene of crime and the Appellant did not admit that Exhibit 2 was the weapon used by him to stab the deceased.

In my firm opinion, there is no doubt that the Appellant stabbed the deceased with a sharp knife. The Appellant’s confession bears on this fact. The Appellant stated on oath that he took a sharp weapon from his house to the scene of crime and stabbed the deceased with it. He specifically admitted stabbing PW3 with a sharp knife in retaliation for a previous fight between them and when the deceased tried to intervene, he also stabbed the deceased with the same sharp knife – see Exhibits 3 and 3A. Furthermore, PW5 the Divisional Investigating Police Officer recovered a sharp knife in the Appellant’s father house at the time of the Appellant’s arrest. The Appellant did not disown the sharp knife. As rightly submitted for the Respondent, the finesse point of forensic analysis was not raised by the Appellant at the trial. It is another one of the Appellant’s technicalities shopping spree. 

The law is indeed trite that the prosecution need not even tender the weapon used by an accused person in perpetrating a crime. It is not essential to tender the weapon used in the commission of an offence to secure a conviction, provided there is cogent eyewitness evidence or in the absence of eyewitness evidence, there is enough unequivocal circumstantial evidence that points to the guilt of the accused person. In the case of Adisa v. State (2018) LPELR – 46340, the Supreme Court restated this trite legal principle as follows:
“It is not possible for a Court to give probative value to the evidence of PW1, PW2 and PW3, who were the victims of the robbery and the statement of the accused who admitted using offensive weapons in a robbery operation and turn round later to hold that the offence committed is not armed robbery simply because the offensive weapons were not tendered. While conceding that if weapons allegedly used in a robbery operation are tendered in evidence, this will make the prosecution’s case watertight but it is not “sine qua non” to proving armed robbery and the law still remains that if there are other pieces of evidence on which the Court can rely to convict for the offence charged, the conviction will not be set aside. See Fatai Olayinka v. State (2007) (NWLR (Pt. 1040) 561.”
See also the cases of: (1) Dibie v. The State (2004) 14 NWLR (Pt. 893) p. 257 at pgs. 280-281, paras. H – A; (2) Babarinde & Ors v. State (2013) LPELR – 21896 (SC); (3) Adisa v. State (2018) LPELR – 46340 (SC) and (4) Samaila v. State (2020) LPELR – 52448 (SC). The rationale for this principle is that, most often, weapons used in the commission of crimes are quickly disposed of, so as to avoid detection. What this means is that, in the instant case, it would not change anything if the weapon used to inflict the fatal injury on the deceased was neither recovered nor tendered in evidence for that purpose. This is in view of the very cogent eyewitness evidence of PW3 who is also a victim in this case, the medical report Exhibit 4 and the statements of the Appellant Exhibits 3 and 3A wherein the Appellant admitted stabbing the deceased with a sharp knife/sharp weapon.

The learned trial Judge having given a high probative value to the foregoing evidence, it will be preposterous for him to make a turnaround to hold that the Appellant did not commit the offence charged simply because forensic test was not carried out by the prosecution to match the DNA of the blood found on Exhibit 2 with the DNA of the deceased in order to prove that Exhibit 2 was the weapon used by the Appellant to stab the deceased. If that exercise were carried out, it can indeed be professed that it will make the case of the Respondent really very airtight. That is nonetheless not essential since there are other pieces of evidence on which the trial Court could and did rely in convicting the Appellant as charged.

I have no question in my mind that with the nature of the case presented by the Respondent against the Appellant at the trial Court, all the ingredients of the offence of culpable homicide punishable with death with which the Appellant was charged were proved beyond reasonable doubt. I am unable to find any inconsistency in the Respondent’s case that can create a doubt capable of being resolved in favour of the Appellant.

Issue two is equally resolved against the Appellant and in favour of the Respondent.

ISSUE THREE
“Whether the trial Court considered the defenses raised by the Appellant before it in arriving at its decision?”

THE SUBMISSIONS OF THE APPELLANT’S COUNSEL
The law is firmly settled that when an accused person did the killing of another in self-defence, the killing does not amount to an offence but leads to a total exoneration of the accused person. See Jeremiah v. State (2012) 14 NWLR (Pt.1320) p.248 at p. 260. To succeed on the defence of self-defence, the accused only needs to show that the nature of the attack by the deceased was such as to cause a reasonable apprehension of death or grievous bodily harm to the accused and that the accused in fact apprehended death or grievous bodily harm See Owhoruke v. COP (2015) NWLR (Pt.1483) p.557 at pgs. 579-580, paras. F-A. It is also trite that the guiding principles of self defence are necessity and proportion. The Court must answer two questions in the affirmative for the defence of self-defence to avail an accused person. Firstly, whether on the evidence adduced the defence of self-defence was necessary. Secondly, whether the injury inflicted was proportionate to the threat posed by the deceased victim. See Adeyeye v. The State (2013) 11 NWLR (Pt.1364) p.47 at pgs.65-66 paras. H.B.

On the second defence of provocation relied on by the Appellant, the law is also well pronounced that where the defence of provocation is made out by an accused person in a murder case, it has the effect of whittling down the offence of murder which carries death penalty as the punishment, to manslaughter with term of imprisonment as punishment. See Owolabi Kolade v. The State (2017) 8 NWLR (Pt.1566) p.60 at p.90, paras.E-G.

The learned trial Judge was therefore in error in holding that there was no iota of evidence adduced by the defence to show that the deceased posed a threat to the Appellant, to justify the Appellant to stab the deceased at the back of his ribs with a knife. For the Appellant had at the earliest opportunity, in his extra-judicial statement, stated that the deceased attacked him with a stick and knife. What is more, the learned trial Judge equally made a finding of fact that the Appellant said that the deceased beat him with sticks and a knife. Also the Appellant’s evidence of self defence and or provocation were not challenged nor discredited during cross-examination, there was therefore no basis for the rejection of the two defences by the trial Judge without adducing reasons for such rejection.

The twin conditions of self-defense of necessity and proportion therefore availed the Appellant as the deceased attacked the Appellant with sticks and a knife and it was necessary for the Appellant to ward off the attack, hence, the Appellant also used a knife. The use of a knife by the Appellant is proportionate to the knife also used by the deceased. What is more, from the unchallenged evidence of the Appellant, it is clear that the act of retaliation was done before there was time for the cooling down of passion and the retaliation is proportionate to the provocation.

This Court is therefore urged to resolve this issue in favour of the Appellant, allow this appeal and set aside the judgment of the trial Court.

THE SUBMISSIONS OF THE RESPONDENT’S COUNSEL
From the entirety of the evidence adduced by both parties in this case before the trial Court, the learned trial Judge was right to hold that there was no iota of evidence in favour of the Appellant to justify the killing of the deceased by the Appellant. The deceased did not pose any threat to the Appellant. It is crystal clear that the trial Court properly considered and evaluated the defenses raised by the Appellant before arriving at its decision.

This Court is urged to resolve this issue in favour of the Respondent and against the Appellant.

RESOLUTION OF ISSUE THREE
The claim of the Appellant is that he was provoked and in an attempt to defend himself against the deceased whom he claimed attacked him with a stick and a knife, he stabbed the deceased. In essence, the Appellant is claiming to be entitled to the defences of provocation and self-defence. 

To avail himself of the defence of provocation in a charge of culpable homicide punishable with death under Section 221 (b) of the Penal Code, the Appellant must have done the act with which he is charged (i) in the heat of passion, (ii) the act must have been caused by sudden provocation and (iii) the act must have been committed before there was time for his passion to cool. In the case of: R v. Duffy (1949) 1 ALL ER P.932, Devlin J., defined provocation as: “Some act or series of acts done by the dead man to the accused, which would cause in any reasonable person, and actually caused in the accused a sudden and temporary loss of self-control rendering the accused so subject to passion as to make him or her for the moment not master of his mind”. Also in the case of: Kaza v. State (2008) LPELR-1683, the Supreme Court per Tobi, JSC (of blessed memory) stated that:
“Provocation is an action or conduct which arises suddenly in the heat of anger. Such action or conduct is precipitated by resentment, rage or fury on the part of the Accused Person to the person that offered the provocation. Because of the anger, resentment, rage or fury, the Accused Person suddenly and temporarily loses his passion and self-control; a state of mind which results in the commission of the offence. There can hardly be provocation in respect of words or acts spoken or done in the absence of the accused. This is because words spoken or acts done in the absence of the Accused will not precipitate any sudden anger, resentment, rage or fury, as there is time for passions to cool. The very act of reportage of the words or acts of the accused should materially reduce or drown the anger, resentment, rage or fury of the Accused.”
See also the cases of: (1) Obaji v. State (1965) LPELR-25273 (SC); (2) Lado v. State (1999) LPELR-1737 (SC); (3) Uwaekweghinya v. State (2005) LPELR-3442 (SC) and (4) Eze v. State (2018) LPELR-44967 (SC).

It is instructive to note that the defence of provocation does not exculpate an offender from criminal liability, rather it minimises or reduces the sentence. To put it in other words, where an accused charged with homicide successfully raises a defence of provocation, that defence does not exculpate him of punishment but it merely reduces culpability to manslaughter which carries a term of imprisonment unlike homicide which is punishable by death. See the cases of: (1) Akang v. State (1971) 1 ALL NLR p.46; (2) Shande v. State (2005) 12 NWLR (Pt. 939) p. 301 and (3) Musa v. State (2019) LPELR-46350 (SC). 

In the light of the above-stated position of the law, the pertinent poser in the circumstances of this matter is: can the defence of provocation avail the Appellant?

On the two defences of provocation and self-defence pleaded by the Appellant, the learned trial Judge found and held verbatim as follows:
“At this stage, I wish to consider the defence put off by the accused in his evidence in Court. He said after about 3 months when he had a fight with PW3 and one Hassanaye he saw Baffa (PW3) sitting outside his house. He said he (accused) went home and picked a knife and stab PW3 at his back and runaway. According to the accused person, the deceased came out from their house with a stick and started beating him and in the process the knife in his hand (accused) hit the deceased and he fell down.
Under cross-examination, the accused person said it in the process of defending himself that he stab the deceased.
DW2 in his evidence said a day when he was in his working place, saw PW3 and Hassanaye pursuing the accused person and Hassanye brought out a sword and stab the accused person.
Under cross-examination, DW2 said PW3 did not stab the accused. …
In the instant case, the accused admitted in his defence been at the scene of the crime and after stabbing PW3, the deceased came out with a stick in anger and pursued the accused who used his knife and stab the deceased. There was no iota of evidence adduced by the defence to show that the deceased posed a threat to the accused person that will warrant him to stab the deceased at the back of his ribs.
In the instance case, there is no evidence that the deceased attacked the accused with the stick. I did not believe the evidence of the accused person that the deceased beat him and therefore the defence of self-defence cannot avail him.” (See pages 87 to 89 of the record of appeal). 

I am in total agreement with the findings and opinion of the learned trial Judge set out above. In the words of the Appellant as can be gleaned from his confessional statement Exhibit 3A, the Appellant went to the house of the deceased on the day in question where he stabbed PW3, the deceased brother, with a knife because of a long standing grudge he harboured against PW3. 

According to the Appellant, the deceased was only attracted to the scene, held a long stick which he thought the deceased intended to strike him with and rather than leave the venue after the initial fight with PW3, the Appellant went ahead and also stabbed the deceased with the same sharp knife he used earlier in stabbing PW3. Assuming without conceding that the deceased actually hit the Appellant with the stick, there is no evidence that he did, the degree of retaliation by the Appellant stabbing the deceased with a sharp knife would be way out of proportion to the provocation offered by the deceased. As adverted to above, it was in his extra-judicial statement that the Appellant set up the defence of provocation, the subsequent defence of self-defence was only raised at trial while he was giving evidence in his defence and after the Respondent had closed its case. In his said sworn testimony, the Appellant tilted his evidence to make it appear that he acted in self-defence when he introduced the story that the deceased hit him with a stick and knife. See pages 28 to 29 of the record of appeal. The subsequent defence in my firm view is nothing but an afterthought.

What is more, the law is settled that, the two defences of provocation and self-defence being mutually exclusive cannot be set up at the same time by an accused person in the shoes of the Appellant herein. For, while a plea of self-defence, if successfully raised, completely absolves the offender from criminal responsibility, a plea of provocation, if successful, reduces the offence of murder or culpable homicide punishable with death, to manslaughter. The requirements and consequences of the two pleas are diametrically opposed. More importantly, the Appellant having entered a plea of “not guilty” cannot in the same breath be availed of either the defence of provocation or self-defence or both. See the cases of: (1) Sheidu v. State (2014) LPELR-23018 (SC); (2) Bassey v. State (2019) LPELR-51174 (SC); (3) Wowem v. State (2021) LPELR-53384 (SC) and (4) Kalgo v. State (2021) LPELR-53077 (SC). It is my view in the instant matter that there is no evidence whatsoever in the record of proceedings from which the defence of either provocation or self-defence could be inferred in favour of the Appellant.

From the foregoing illumination, the result of this issue number two is that of failure. It is accordingly resolved against the Appellant and in favour of the Respondent.

In sum, the three issues submitted upon by the parties having been resolved against the Appellant, the appeal is therefore an abysmal failure. Consequently, I hereby dismiss the appeal.

Concomitantly, the judgment of the trial Court, delivered on the 8th of February, 2017, in which the Appellant was convicted as charged and duly sentenced, is accordingly affirmed.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Oyebisi Folayemi Omoleye, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusion and the final orders made therein.

This appeal is against the conviction and sentence passed on the Appellant by the lower Court for the offence of culpable homicide punishable with death and causing of grievous hurt. The gravamen of the complaints of the Appellant in this appeal is against the evaluation of evidence carried out by lower Court.

It is settled law that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed then side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse.
In other words, an appellant Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse. See Olude Vs State (2018) LPELR 44070 (SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt.1615) 355, Idagu Vs State (2018) LPELR 44343(SC), Fulani M. Vs State (2018) LPELR 45195 (SC), Edwin Vs State (2019) 7 NWLR (Pt. 1672) 551, Ayinde Vs State (2019) 12 NWLR (Pt. 1687) 410, State Vs Gbahabo (2019) 44 NWLR (Pt. 1693) 522, Tope Vs State (2019) 15 NWLR (Pt. 1695) 289.
This means that an appellant Court will only interfere with the evaluation of evidence carried out by a lower Court and embark on a re-evaluation of the evidence led by the partied where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusion from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court. See Kale Vs Coker (1982) 12 SC 252 at 371, Busari Vs State (2015) 5 NWLR (Pt. 1452) 343 at 373, Ude Vs State (2016) 14 NWLR (Pt.1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt. 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR 47829 (SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt. 1790) 377.

The law is that if an appellant asserts that the prosecution failed to prove his guilt beyond reasonable doubt before conviction, it is for him to establish that it is so and it is the duty of an appeal Court to examine the assertion against the whole background of the case and in particular, against the evidence leading to the guilt of the appellant. If at the end of the whole of the case, there is reasonable doubt created by the evidence given either by the prosecution or the appellant, as to whether the offence was committed by him, the prosecution has not made out the case and the appellant is entitled to an acquittal. See Oteki Vs State (1986) All NLR 371, Ekpe Vs State (1994) 12 SCNJ 131 and Udosen Vs The State (2007) All FWLR (Pt. 356) 669.

I agree with the lead judgment that the entirety of the complaints of the Appellant were on tangential and peripheral issues and on matters that he had the opportunity to raise before the lower Court and which he failed to raise and canvas. The Appellant failed woefully in putting across issues that materially and substantially queried the evaluation of evidence and the findings of fact made and conclusion reached thereon by the lower Court. The Appellant did not make out any case to necessitate this Court interfering with the judgment of the lower Court.

By Section 168(1) of the Evidence Act, a judgment appealed against enjoys presumption of regularity which is rebuttable. Once the appellant fails to satisfactorily establish the error in the judgment appealed against, the respondent is entitled to a judgment affirming the judgment. See Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt. 1575) 92. In Oyedele Vs State (2019) 6 NWLR (Pt. 1667) 74, the Supreme Court made the point thus:
“There is a presumption that, on facts, the decision of a trial Court is right and that for the appellant to succeed, he must displace the findings of fact against him. Once an appellate Court finds nothing perverse or capable of occasioning miscarriage of justice to the appellant in the judgment of the trial Court on facts, it has nothing else to do than to affirm the judgment.”

I agree that the appeal is without merit and I too hereby dismiss same. I affirm the judgment of the High Court of Kano State delivered in Case No. K/162c/2015 by Honourable Justice U. M. Na’abba on the 8th of February, 2017, together with the conviction of a sentence on the Appellant therein.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Oyebisi Folayemi Omoleye, JCA in this appeal. I entirely agree with the judgment and the way the issues were treated by My Lord. I adopt the reasoning and conclusion reached as mine and find that the appeal is unmeritorious. The appeal is equally dismissed by me. The conviction and sentence of the appellant are affirmed. 

Appearances:

Mr. A. O. Odum For Appellant(s)

Mr. B. A. Ahmed, Principal State Counsel, Ministry of Justice, Kano State For Respondent(s)