UMMARU MUHAMMED v. THE STATE
(2018)LCN/12103(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of October, 2018
CA/S/182C/2017
RATIO
CRIMINAL LAW: ATTEMPT TO COMMIT CULPABLE HOMICIDE
“The offence for which the Appellant was charged and convicted is that of attempt to commit culpable homicide punishable under Section 229 of the Penal Code. The ingredients of the offence which the prosecution must prove to succeed as correctly stated, are:-
(a) that the death of a human being was attempted;
(b) that such attempt was the act of the accused;
(c) that such act was done with the intention of causing death or that the accused knew or had reason to know that death would be the probable cause and not only the likely consequence of the act or of any bodily injury which the act was intended to cause.” PER AMINA AUDI WAMBAI, J.C.A.
CRIMINAL LAW: ELEMENTS OF AN ATTEMPT TO COMMIT AN OFFENCE
“As an inchoate offence, the requisite elements of an ‘attempt’ to commit an offence are: (a) an intent to commit the crime;
(b) an overt act towards its commission;
(c) failure of consummation; and
(d) The apparent possibility of commission of the offence.” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
UMMARU MUHAMMED Appellant(s)
AND
THE STATE Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
At the Sokoto State High Court in charge No. SS/8C/2017 dated 6th February, 2017 before Hon. Justice Malami Umar Dogon Daji, the Appellant, Ummaru Muhammed, was charged with the offence of attempt to commit culpable homicide in that on or about the 29th June, 2016 at about 12:30 hours at Hamma’Ali village of Kware Local Gov.t Area of Sokoto State, he used a cutlass and inflicted serious injuries on the left side of the head of one Ummaru Aliyu with such intention or knowledge and in such circumstances that he would have been guilty of culpable homicide punishable with death, thereby committing an offence punishable under Section 229 of the Penal Code.
The Appellant pleaded not guilty to the charge, consequent upon which the prosecution called 3 witnesses and tendered two exhibits. The Appellant also testified in his defence but tendered no exhibit nor called any other witness.
Upon reviewing the evidence, the learned trial judge found that the prosecution proved all the ingredients of the offence against the Appellant as charged and accordingly returned a verdict of guilty and sentenced him to five (5) years imprisonment.
Peeved and disconsolate with his conviction and sentence, the Appellant commenced this appeal, the Notice of which was filed on 28th September, 2017 predicted upon 2 grounds of appeal from which learned Adedepo Tunde Tolowu who settled the Appellant’s brief of argument filed on 27/04/2018 but deemed on 24/9/2018, raised a sole issue for determination to wit:-
WHETHER THE RESPONDENT PROVED THE OFFENCE OF ATTEMPT TO COMMIT CULPABLE HOMICIDE AGAINST THE APPELLANT, BEYOND REASONABLE DOUBT.?
Mohammed Mohammed, the Hon. Director of Public Prosecutions, Sokoto State Ministry Justice who settled the Respondent’s brief of argument filed and deemed on 24/9/2018, also distilled a lone issue from the two grounds of appeal, Viz: –
whether looking at the totality of the evidence adduced before the trial Court, the lower Court was right in convicting and sentencing the appellant to five (5) years imprisonment for the offence of attempt to commit culpable homicide contrary to Section 229 of the Penal Code.?
At the hearing of the appeal on the 24th September, 2018, both counsel adopted their respective brief of argument. While, the Appellant?s learned counsel urged us to allow the appeal, set aside the judgment of the lower Court and discharge & acquit the appellant, expectantly, the learned counsel for the Respondent urged upon us to dismiss the appeal and affirm the decision of the lower Court.
The lone issue as presented by both parties are substantially the same albeit, couched differently to suit each party’s perspective of the issue in contention. I shall determine this appeal on the Appellant’s issue, the difference between it and the Respondent’s issue, being like the difference between tweedledum and tweedledee or six and half a dozen.
Arguing the issue, the learned Appellant’s counsel restated the settled fundamental and jurisprudential principle in Criminal trials that the prosecution has the onerous burden of proving the guilt of an accused person beyond reasonable doubt since an accused person no matter the gravity of the offence, is, until proved guilty, presumed to be innocent.
That, it is not the duty of the accused to prove his innocence. He referred to Section 36 (5) of the 1999 Constitution (as amended), Section 135 of the Evidence Act, 2011 and a number of cases includingARUNA V STATE (1990) 6 NWLR (Pt 155) 125 @ 127 and NWATURUOCHA V THE STATE (2011) LPELR 8119 (SC) Per Adekeye JSC.
Learned counsel contended that the prosecution failed to prove the ingredients of the offence, viz. that death of a human being was attempted; that such an attempt was the act the Appellant; that it was done with the intention of causing death or that the Appellant knew or had reason to know that death would be the probable consequence of the act.
It was submitted that the prosecution led no evidence to show that the death of PW2 was attempted or that the Appellant’s intention was to kill PW2 and not merely to cause grievous hurt as the severity of the injury sustained was not proved, the weapon used not tendered in evidence, the medical doctor who treated PW2 was not called nor a medical report tendered to show the nature and part of the body where the injury was inflicted. The ‘ipsi dixit’ evidence of PW2 he argued, is not sufficient, where legal evidence is required to prove the severity of the injury citing the cases of PALMER V DADA (1986) 5 NWLR (Pt 43) 541 and ZAHARADEEN MOHAMMED V THE STATE (2014) 10 NWLR (Pt 1414) 178. @ 201 – 202. That the attempt to tender the photograph of PW2 having failed, the prosecution did not adduce sufficient credible evidence of facts and circumstances from which the intention to kill PW2 could be inferred. He wandered how intention to kill would be inferred from merely cutting off of an ear. The learned trial judge was therefore faulted for inferring Appellant’s intention to kill PW2 which inference he argued, is not based on evidence but on speculation which has no place in our jurisprudence. For this, he called in aid the case of IKENTA BEST (NIG) LTD ?V- A.G. RIVERS STATE (2008) 6 NWLR (Pt 1084) 612.
It was submitted that having failed to prove these vital ingredients of the offence, the prosecution has fatally failed to prove the guilt of the Appellant and the proper order to make is that of an acquittal as held in the recent case ofGALADIMA V STATE (2017) LPELR 41909 (SC) urging us to do so, allow the appeal discharge and acquit the Appellant.
In response, though it was conceded that in criminal trials the duty is that of the prosecution to prove the guilt of an accused person beyond reasonable doubt, it was submitted that the prosecution did in fact, discharge that burden. It was submitted that from the evidence of the victim of the offence, (PW2) the Appellant used cutlass to cut the left ear of PW2 whereupon he fell down and became unconscious because of the severity of the injury which could not be treated at a Specialist Hospital but had to be referred to the Usman Dan Fodio University Teaching Hospital, (UDUTH). All these counsel submitted, made it clear that death of PW2 was intended, thus proving the 1st ingredient.
On the 2nd ingredient that such attempt was the act of the Appellant, reference was made to the graphic evidence PW1 & PW2 to submit that the Appellant whose identity was not in doubt was identified by both PW1, an eye witness, and PW2 himself, the victim of the offence whose evidence of identification is the best evidence as decided UZOMA V THE STATE (2013) LPELR 20650, ADAMU V THE STATE (1991) 4 NWLR (Pt 187) 53, more so that the witnesses had opportunity of identifying the Appellant as held in MOHAMMED V THE STATE (2015) LPELR 24397, thus, he contended, the prosecution proved the identity of the Appellant as the person who attempted to cause the death of PW2.
On the 3rd ingredient that the act was done with the intention of causing death or with knowledge that death would be the probable consequence of the act, it was submitted that criminal intention can be gleaned or inferred from the nature of the instrument used in committing the offence, the part of the body targeted and where a dangerous weapon as in the instance case was used and a delicate part of the body targeted as the ear, the intention to kill can be inferred. For this, he cited the cases ACHUKU V THE STATE (2014) LPELR 22651, NWOKEARU V THE STATE (2013) 16 NWLR (Pt 138) 2017 @ 235 among others.
It was further submitted that the evidence of the victim, PW2 that the Appellant used a cutlass to cut his ear, that he fell down blood gushing out of the ear and became unconscious and had to be referred to U.D.U.T.H Sokoto reveals clearly the intention of the Appellant to kill PW2, which intention learned counsel further argued, becomes more apparent by the Appellant’s evidence as DW1, which displayed the motive for the offence, the traditional title dispute between the Appellant’s father and PW2.
All the ingredients of the offence having been proved beyond reasonable doubt, learned counsel submitted, the prosecution succeeded in proving its case against the Appellant and the lower Court was right to have so found. He relied on the cases of AJAYI V STATE (2013) 8 NCC 1, and ALABI V STATE (1993) 7 NWLR (Pt 307) 511 among others.
In response to the Appellant’s submission, learned Respondent’s counsel submitted that the production of the medical report or the weapon used in committing the offence are unnecessary and their non-production is not fatal to the prosecution’s case where the evidence adduced leaves no doubt as to the nature and severity of the injury sustained, the manner it was caused, the part of the body attacked and the object used, citing in support the cases ofHARUNA V A.G. FEDERATION (2010) LPELR 4233, ONYIA V THE STATE (2006) 11 NWLR (Pt 991) 267 ACHUKU V THE STATE (2014) LPELR 22651, OLATUNJI V THE STATE (2009) LPELR 8880, among others.
Similarly dispensable and not fatal to the prosecution’s case, the learned Director of Public Prosecutions argued, is the evidence of the Medical doctor who treated the victim as the prosecution is only bound to call sufficient witnesses to prove its case and not all witnesses. The cases of THE STATE V OLATUNJI (2003) LPELR 3227, SA’IDU V STATE (1982) 4 SC 41 were cited in support.
He debunked the submission that the learned trial judge only engaged in speculation by inferring that the Appellant intended to kill the victim, submitting that the trial judge only analyzed the evidence on record, as is his primary duty to do, in relation to the Appellant’s confessional statement in drawing the inference. Moreover, it was submitted, apart from the graphic evidence of PW1 & PW2, the Appellant’s confessional statement, Exhibits A & A1 in which the Appellant confessed the commission of the offence and which ware admitted without objection, are sufficient proof of his guilt.
For this he referred to the cases of YAHAYA V. STATE (2001) 10 NWLR (Pt. 721) 310 ACHABUA V STATE (1976) 4 SC 1, among others.
Insisting that the prosecution proved its case beyond reasonable doubt against the Appellant by the evidence of PW1, PW2, PW3 & Exhibits A & A1 respectively, learned Respondent’s counsel urged us to dismiss the appeal for lacking in merit.
Starting from the very beginning by re-stating the well entrenched position of the law in Criminal trials, it is merely a restatement of the time hallowed and immutable principle of law to say that the prosecution has the heavy and unshifting burden of proving the guilt of an accused person beyond reasonable doubt and with no corresponding duty on the accused to prove his innocence. ASAKE VS THE NIG. ARMY COUNCIL & ANOR (2007) 1 NWLR (PT. 1015) 408; OGIDI VS THE STATE (2005) 5 NWLR (PT. 918) 286, ARUNA V STATE (Supra), NWATURUOCHA V THE STATE (Supra). The only duty he has is a benign one, to cast a doubt on the case of the prosecution or to discredit the prosecution’s case to make it unreliable and unsafe for a reasonable Court or Tribunal to convict upon same.
The offence for which the Appellant was charged and convicted is that of attempt to commit culpable homicide punishable under Section 229 of the Penal Code. The ingredients of the offence which the prosecution must prove to succeed as correctly stated, are:-
(a) that the death of a human being was attempted;
(b) that such attempt was the act of the accused;
(c) that such act was done with the intention of causing death or that the accused knew or had reason to know that death would be the probable cause and not only the likely consequence of the act or of any bodily injury which the act was intended to cause.
The 1st & 2nd ingredient as can be seen are interrelated, the combined effect of which is whether the Appellant by his act attempted to cause the death of a human being. Bearing in mind the facts of this case, I shall consider both ingredients together as such. In other words, whether the prosecution proved that the Appellant by his act attempted to cause the death of PW2, Ummaru Aliyu.
The learned Respondent’s counsel unnecessarily went to town and fully armed fighting to win an uncontested battle on the identity of the person who inflicted the injury on PW2. There is absolutely no need for that. The question of the identity of the Appellant being the assailant is not an issue in this appeal. None of the grounds of appeal raise the issue as a point of complaint nor has the Appellant’s counsel canvassed any argument disputing that fact. The law is trite, I must state, that like pleadings which circumscribe the party’s evidence and counsel’s argument in support, argument in an appeal must also be based on issues properly formulated for determination which must also arise from the complaints in the grounds of appeal. Parties are not allowed to argue outside the complaints in the grounds of appeal from which issues have been distilled for determination. See OGBULI V OGBULI (2008) 1 NWLR (Pt 1068) 258, NBN V OPEOLA (1994) 1 NWLR (Pt. 319) 126. Accordingly, argument by the learned Respondent’s counsel on the identity of the Appellant being the assailant is discountenanced.
The only bone of contention or the battle line in this appeal is whether the acts of the Appellant amounts or translates into an attempt to cause the death of PW2. In other words whether the prosecution proved the severity of the injury as to warrant the finding of the learned trial judge that the death of PW2 was attempted by the Appellant.
Now, what is an attempt to commit culpable homicide?
Neither Section 229 (1) of the Penal Code which creates the offence nor Section 95 of the same code which deals, generally, with attempts to commit offences, define what an attempt to commit an offence is. Illustrations, however, are given by S.S Richardson in his annotation of the Northern Nigeria Penal Code to demonstrate or explain what would in any particular offence, amount to an attempt to commit that offence.
The black’s law dictionary (9th edition) page 146 defines:
‘attempt’ to commit an offence as:
“the act or instance of making an effort to accomplish something, especially without success 2. An overt act that is done with the intent to commit a crime but that falls short of completing the crime.”
As an inchoate offence, the requisite elements of an ‘attempt’ to commit an offence are:
(a) an intent to commit the crime;
(b) an overt act towards its commission;
(c) failure of consummation; and
(d) The apparent possibility of commission of the offence.
It consists of an intention to commit the crime, the clear and substantial steps taken in furtherance of the intention towards the commission of an offence, short of the actual consummation of the crime attempted. There must be the physical acts of the accused sufficiently proximate to the complete offence with an intent on the part of the accused to commit the offence. These must be more than the mere preparation to commit the offence. See REV. KING V STATE (2016) LPELR 40046.
While acts preparatory to the commission of a crime are not culpable, overt act done immediately connected with the commission of the crime and which if not prevented, averted or unsuccessful would have resulted in the consummation of the offence, constitutes an attempt to commit the offence, and is punishable by law as the moral guilt of the offender is the same as if he had been successful. An attempt to commit an offence is therefore an overt act committed or substantial steps taken in furtherance of the commission of the crime, coupled with the criminal intention to achieve the desired result but which falls short of the successful completion of the actual offence. Therefore to prove that an accused person attempted to commit a particular offence, the prosecution must prove not only the intention of the accused and the preparatory steps taken to commit the offence, but that the accused had done all he needed to do to complete the actual offence albeit, without consummation of the offence attempted.
In the instant case, the act allegedly committed by the Appellant against PW2, which again is not in dispute is as narrated by PW2:
“… unknown to me the accused person was holding a cutlass and he cut me on my left ear…”
On what followed the cut, PW2 continued:
“… and I tell (sic) (fell) down and I rose up and at that juncture the accused person ran away I followed him with my torch light but I could not go because blood was gushing out from my left ear and I became unconscious and fell down.”
Our people got a vehicle and was taken to specialist hospital and from there they referred us to UDUTH Sokoto
(See p. 19 – 20 of the record)
Parties have taken different positions on this evidence of PW2 and the other pieces of evidence on record proving the severity of the injury as to constitute an attempt to kill PW2. Thus, the issue here is whether the injury sustained is of the nature and severity as to amount to an attempt to cause the death of the victim, PW2. The Appellant’s contention is that there is no evidence to establish the severity of the injury sustained because the photograph of the injury sustained and the medical report were not tendered nor was the medical doctor called to adduce evidence of the nature and severity of the injury. On the failure to tender the photograph and the medical report in evidence.
Let me quickly say that as vehemently and tenaciously as the learned counsel canvassed and held unto this argument, it possesses not the strength to withstand the force of judicial authorities to the contrary, as the indispensability of a medical report in proof of the nature of injury or cause of death has long been settled.
The Appellant’s argument therefore cannot stand against the litany of decisions of the apex Court including the case AKPAN V THE STATE (1994) 9 NWLR (Pt 368) 347 where ADIO JSC stated the correct position of the law thus: –
‘the correct legal position is that where a person attacked another person with a lethal weapon and the other person died on the spot, it is not necessary to prove the cause of death. It can properly be inferred that the wound inflicted on the deceased caused the death.’
Similarly in BEN V STATE (2006) 16 NWLR (Pt 1006) 582 @ 594. Akintan JSC held inter alia:
‘In cases where a man was attacked with lethal weapon, and he died on the spot, cause of death can properly be inferred. Put in another form, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases?.medical evidence was not necessary to determine the cause of death in the circumstance of this case. It could properly be inferred that the wound inflicted caused the death of the deceased.’
Though a medical report may be desirable and in some cases necessary to prove the nature and severity of injury, the part of the body injured or the cause of death, it is not a sine qua non for the purpose of establishing the injury or the cause of death where credible evidence abounds showing the cause of death or the nature of the injury, its severity, the manner it was inflicted, and the part of the body so inflicted. A medical report becomes unnecessary in such circumstances and the trial Court can infer the cause of death or the severity of the injury as the case may be, with or without the medical report. See HARUNA V AGF (Supra) following the decision in ONYIA V State (Supra).
The same principle applies to the non-production of the photograph of the victim where sufficient credible evidence exists establishing the nature of the injury sustained.
After all, what is important is whether there is sufficient evidence on record establishing the severity of the injuries inflicted on the victim by the Appellant or that death would have been caused by such injury and not whether from the medical point of view, death would have been caused by such injury.
On the failure to call the medical doctor who treated the Appellant, let me also without indulging in any circumlocution, say that it is neither a statutory requirement under Section 249 (2) of the Criminal Procedure Code nor indispensable in proof of the nature of injuries sustained or the cause of death.
It is only crucial where it is the only evidence through which the nature of the injury or the cause of death can be proved beyond reasonable doubt or where it is the only evidence that can establish the cause of death and the nexus between the death of deceased and the act of the accused person. See UYO V ATT. GEN. BENDEL STATE (2000) 12 NWLR (Pt 681) 415 @ 4301 UBIERHO V STATE (2005) 5 NWLR (Pt 919) 644. ADEKUNLE V STATE (2006) ALL FWLR (Pt 332) 1452.
Generally, therefore the calling of a medical doctor or production of medical evidence is not a sine qua non in proving the nature or severity of injury or the cause of death.
Similarly, there is no laid down law requiring the tendering of the weapon allegedly used in the commission of a crime in order to establish the guilt of an accused nor would a conviction be set aside merely on that ground. The law is as stated in plethora of cases including the case of OLAYINKA V THE STATE (2007) 9 NWLR (Pt 1040) 561 @ 575 para D – F Per Tabai JSC, thus: –
“I do not think there is any principle of law requiring the tendering of the weapon of an alleged robbery to establish the guilt of an accused person.” See also VICTOR V STATE (Supra), Ibrahim & as V State (2015) LPELR 25729 (CA) P.29 para B – E.
In the appeal before us, the evidence of PW2 that the weapon used by the Appellant in inflicting injury on him (PW2) was a cutlass; that the place where the injury was inflicted was his left ear; that blood gushed out form the ear; that as a result, he wanted to run after the Appellant but fell down and became unconscious after which he was taken to a Specialist Hospital from where he was referred to Usman Dan Fodio Teaching Hospital for treatment, all remain unchallenged and uncontroverted. The lethal nature of the weapon used, a cutlass, the delicate part of the body inflicted with the injury, the ear, and the aftermath of the injury which resulted in the victim falling down and becoming unconscious are all sign posts of the severity of the injury and cumulatively, sufficient enough, to warrant a reasonable inference that the Appellant by the said act, attempted to cause the death of the victim, PW2. What is more, as rightly held by the learned trial judge, the Appellant in Exhibits A & A1 also confessed to using a machete to cut the left ear of PW2.
Given to these facts, the unchallenged and admitted evidence on record, it cannot be anything but that the Appellant who inflicted injury on the left ear of PW2 with a cutlass resulting in PW2 becoming unconscious, had attempted to cause the death of PW2. The Respondent therefore proved the 1st & 2nd ingredients of the offence beyond reasonable doubt.
On the 3rd ingredient, it is the contention of the learned Appellant?s counsel that there was no evidence devoid of speculation to prove the Appellant’s intention to kill PW2; that merely cutting off the ear of PW2 does not translate into intention to kill.
Now, intention as Ngwuta JSC, put it in the case of NWOKERU V STATE (2013) 16 NWLR (Pt. 1380) 207 at 235, is the purpose or design with which an act is performed. It is the fore knowledge of the act coupled with the desire to do the act. The fore knowledge and the desire form the cause of the act in so far as they fulfill themselves through the operation of will.
How then is intention proved?
A man’s intention is usually very difficult if not impossible to prove, for even the devil as crafty as it is, has not been able to know or read a man’s intention. A man’s intention, invariably can only be inferred from his conduct and surrounding circumstances within which he acts. It is from the manifestation of his conduct that his intention can be ascertained. This statement has the backing of a litany of judicial decisions. See for example AREBAMEN VS THE STATE (1972) 7 NSCC 194, 200 where the Supreme Court held:
“Intention is of course difficult to prove affirmatively without a confession from the accused and can frequently only be determined by looking at all the surrounding circumstances and deciding therefrom whether the natural inference is that such must have been the intention. A material factor must be the action or conduct of the accused.”
In KOLO VS COMMISSIONER OF POLICE (2017) LPELR 42577 (SC) Ogunbiyi JSC on how to infer intention had this to say, inter alia:
“… It is often said that even the devil does not know the state of a person’s mind as it is the state of his heart completely within his own Knowledge to the exclusion of all else …. An intention that you have is an idea or plan of what you are going to do. The word intention being subjected in nature therefore can be inferred from the conduct of a person by manifesting through his action.”
Therefore, to determine a man’s intention in the absence of a clear confession from him, is to look at the manifestation of his action or conduct and the surrounding circumstances in which he acts and then draw a plausible inference of his intention from the natural consequence of his action. This is why the law presumes that a man intends the natural and probable consequence of his act and is deemed to know the natural consequence of his action. See GARBA & ORS VS THE STATE (2000) 6 NWLR (PT. 661) 379; STATE VS JOHN (2013) LPELR – 20590 (SC). This is in turn founded on the maxim that the guilty mind instigates the guilty act or flows into the guilty act. The act of a person is proof of his mens rea.
The evidence on record from which to infer the intention of the Appellant consist of the oral testimonies of PW1 and PW2 particularly that of PW2 earlier reproduced and commented upon in this judgment, as well as the contents of Exhibits A & A1, the Hausa & English versions respectively, of the Appellants confessional statements.
Exhibits A & A1, it must be pointed out, were admitted without objection, their voluntariness unchallenged and their binding effect on the Appellant uncontested. In other words, Exhibits A & A1 are the Appellant’s voluntary confessional statements from which he has not resiled. In Exhibit A1, the Appellant stated enter alia.
“… on Thursday 29/6/2016 at about 22:00hrs I went to the house of Ummaru Sarkin Fulani in the same village and met one of his sons by name Bamawo (m) I sent the boy to help me call his father immediately Sarki came out of his compound I used a machete and inflicted an injury on the left part of his face very close to his ear. After I macheted him I ran away
The above contents of Exhibit A1 which is quite revealing and supportive of the evidence of PW2, leaves no one in doubt that the Appellant inflicted injury on the left part of the face of PW2, very close to his ear; after which he ran away.
The utilitarian value of a confessional statement of an accused person in a criminal trial cannot be over emphasized. It’s eminence in evidential value and its prime place derives from the fact that there is no stronger evidence than a man’s own admission or confession. It is considered as the best evidence which the Court can rely upon to convict. It is therefore no longer debatable that a man may be convicted on his confessional statement alone which is voluntary, free, and positive once the Court is satisfied of its truth. See IDOWU VS THE STATE (2007) 9 NWLR (PT. 1038) 30; OZANA UBIERIO VS THE STATE (2005) 4 NWLR (PT. 919) 644 AT 655, YAHAYA V STATE (Supra).
The learned trial judge evaluated this direct positive extra judicial statement of the Appellant along with the evidence on record particularly that of PW2 and came to following conclusion:
“Therefore by virtue of Exhibit A & A1 the evidence of PW1 who is the only witness to the commission of their offence, and the evidence of PW2 who is the victim of the offence, it is very clear to note that the accused person by his act of cutting PW2 on the left side of his head must have intended to cause his death and that the accused knew or had reason to know that death would be the probable cause and not only the likely consequence of bodily injury which his act was intended to cause. From the above it is clear to note that the prosecution has proved the 2nd ingredient of the offence and I so hold.”
Appellant’s counsel has labelled the said finding as speculative. This cannot be correct. Contrary to the view held by the learned Appellant’s counsel, the above finding cannot wear the toga of speculation. Judicial deductions drawn from established facts and evidence which the Court is entitled to and indeed must draw to make specific findings of facts, is not synonymous with and must be distinguished from mere speculation.
A finding is said to be speculative when it is not based on facts or knowledge of its details but on guesses or conjectures and not when, as in the case at hand, it is based on or derivable from the evidence on record.
Whereas speculation is a mere variant of imaginative guess which, even when it appears plausible should never be allowed by a Court of law to fill any hiatus in the evidence before it, an inference is a reasonable deduction from facts available before the Court. See IVIENAGBOR VS OSATO BAZUAYE & ANOR (1999) 6 SC (PT. 1) 149, BEST NIG. LTD V A.G. RIVERS STATE (2008) NWLR (Pt 1084) 612, ASCON V AKINBAMI (2008) ALL FWLR (Pt 401) 932 at 950. Thus, the said finding by the learned trial judge which is based on his proper evaluation of the evidence on record and reasonable inference from the evidence, is a finding of fact and not a finding based on speculation as strenuously but erroneously argued by the learned Appellant’s Counsel.
I have no reason and none has been shown to me why I should fault the said finding and conclusion by the learned trial judge and in the least to interfer with same.
In conclusion, from the proved and admitted evidence on record, by his acts of going to the house of PW2 with a cutlass and inflicting serious injury on the left ear of PW2 with the lethal weapon resulting in PW2 becoming unconscious, the Appellant had taken all the necessary steps, far beyond the preparatory steps, to cause the death of PW2 but for the fact that the desired result was not achieved. The Appellant?s action clearly manifests his intention to kill or the knowledge that death would be the probable result of his action. The natural inference is that a person who goes to the house of another at about 2:00 am with a cutlass and inflicts serious injury on the ear of the other with the cutlass, intends to kill or knew or had reason to know that death of the other would be the probable and not only a likely cause of his action. The prosecution, I must agree with the trial Court, proved its case beyond reasonable doubt against the Appellant, which renders the appeal unmeritorious. Resultantly, I resolve the sole issue against the Appellant, dismiss the appeal and affirm the conviction and sentence of the Appellant as contained in the judgment of the lower Court delivered on 30th June, 2017.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of reading in draft, the judgment of my learned brother Amina Audi Wambai, JCA and I fully agree with the reasons therein for the conclusion that the appeal is without merit.
It therefore stands to be and is hereby dismissed. I subscribe to the consequential orders as made in the judgment.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I was privileged to read in advance the lead judgment just rendered by my learned brother, Justice Amina A. Wambai JCA. I am in absolute agreement with the entire reasoning therein, and the conclusion that the Appeal is unmeritorious and should not be allowed and is hereby dismissed. I equally affirm the conviction and sentence of the Appellant as contained in the Judgment of the lower Court delivered on 30th June, 2017.
Appearances:
ADEDAPO TUNDE-OLOWU, FCIArb and UGONNA OGBUAGU GABRIEL NWODOFor Appellant(s)
MOHAMMED MOHAMMED, Esq. (DPP, Ministry of Justice, Sokoto State)For Respondent(s)
