USMAN MAIGARI v. THE STATE
(2010)LCN/3709(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of April, 2010
CA/S/138/C/2009
RATIO
EVIDENCE: MEANING AND NATURE OF CIRCUMSTANTIAL EVIDENCE
Circumstantial evidence is very often the best evidence, moreso, if it is the only one available, like in the instant case where there was no single eye witness to what happened on that fateful night, between the Appellant and his deceased wife. This again, being a case that cries to the high heavens of the existence of sickening foul play. Thus, it is evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and or precision of mathematics. It is therefore not a derogation of evidence to say that it is circumstantial, so what? However, circumstantial evidence, to be sufficient to ground a conviction in a criminal trial, particularly in homicide cases must be complete and unequivocal. It must be so compelling and must lead to the irresistible conclusion that the accused and no one else did the deed and as such, it is only the accused person and no one else, who should bear criminal culpability for the offence alleged or charged. The facts must be incompatible with the innocence or non culpability of the accused and incapable of explanation upon any other reasonable hypothesis or consideration than that of his guilt, moreso, when any such doubt where it exists must be resolved in favour of such an accused. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
WORDS AND DEFINITION: MEANING OF THE DOCTRINE OF LAST SEEN
The doctrine of last seen’ means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with him has turned up dead.
Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other safe conclusion, then there is no room for acquittal. It is the duty of the accused person in such damnifying circumstances to give an explanation relating to how the deceased met his or her death. In the absence of such an explanation, surely and certainly, a trial court and even an appellate court will be perfectly justified in drawing the necessary inference that the accused person must have killed the deceased. See Emeka v. The State (2001) 14 NWLR (Pt.734) 666; Nwaeze v. The State (1996) 2 NWLR (Pt.428) 1; Gabriel v. The State (1989) 5 NWLR (Pt.122) 457; Adepetu v. The State (1998) 9 NWLR (Pt.565) 185; Adeniji v. The State (2001) 13 NWLR (Pt.730) 375; Uguru v. The State (2002) 9 NWLR (Pt.771) 90; Igabele v. The State (2006) 6 NWLR (Pt.975) 100. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
CRIMINAL LAW: PLEA OF SELF DEFENCE; WHAT IS PREDICATED ON THE PLEA OF SELF DEFENCE
Plea of private or self defence is predicated on the natural principle of kill or be killed. Thus, the accused person must have reasonable grounds to believe that his own life is at stake and in utmost danger, with no other viable option of saving it than to kill his rampaging assailant. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
APPEAL: WHAT IS THE FUNCTION OF AN APPELLATE COURT
Basically, the function of an appellate court is not to review or evaluate afresh, the evidence adduced before the trial court in order to substitute its own view for that of the trial court. It’s avowed duty is to uphold the decision reached thereon, unless there is fundamental error in the trial and of such major character as would amount to gross miscarriage of justice. See Patrick Efe & Ors. v. The State (1976) 11 SC 75. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
AHMAD OLAREWAJU BELBORE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
USMAN MAIGARI Appellant(s)
AND
THE STATE Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivered by Leading Judgment) The Appellant in this appeal was charged with culpable homicide punishable with death under Section 221(a) of the Penal Code. He appealed against his conviction and sentence in the judgment of Bello Abbas J, delivered on 29th June, 2007 The trial process commenced on 13th July, 2000, when the trial court granted leave to the Respondent to prefer a charge under S.221(b) of the Penal Code against the Appellant. On 22nd February, 2006, leave was similarly granted to the Respondent to amend the charge which appeared on the original charge sheet dated 3rd April, 2000 Subsequently and on the said 22nd February, 2006, the Appellant Pleaded not guilty to the amended charge which reads thus –
“That you Usman Maigari on 11th January, 1999 at your house in Yabo of Yabo Local Government Area within the Sokoto Judicial Division did commit culpable homicide punishable with death in that you caused the death of your wife Sa’adatu of Torankawa village in Yabo L.G.A. by strangulating her to death for ritual reason, conveyed her corpse and dumped it in a culvert near Janzomo village along Kajiji-Shagari road and thereby committed an offence punishable under section 221 (a) of the Penal Code.
Dated this 3rd day of April, 2000
Sgd.
Director of Public Prosecution
Ministry of Justice Sokoto.”
In its bid to prove the case against the Appellant, the Respondent called seven prosecution witnesses and tendered Exhibits C and C1 – voluntary statements of the Appellant to the police, recorded under caution dated 24th March, 1999 and 29th March, 1999 respectively. Both were tendered and admitted in evidence, without any objection on the part of the learned counsel for the Appellant. The said learned Appellant’s counsel had earlier on, before the trial court tendered Exhibits A and B, being written statement of PW1 – Sgt. Umaru Majidadi and a medical report dated 14th January, 1999 in respect of post mortem examination conducted on the corpse of an unknown female. At the close of the case for the prosecution before the trial court, the Appellant’s “no case submission” was overruled. He then gave evidence in his own defence as DW1 and closed his defence, without calling any other witness.
The case of the prosecution as disclosed by the prosecution witnesses was that one Sa’adatu Torankawa was the wife of the Appellant, who for months prevented her relations from seeing her. PW3 – Umaru S. Fawa Torankawa, the Appellant’s father in law came to Yabo in company of one Mamman Maisule. They met the Appellant who upon enquiry as to the whereabouts of Sa’adatu, told them that she escorted her mate to Sokoto. When they returned the next day the Appellant informed them that Sa’adatu, his wife was sick and he had taken her to Galmi Hospital, which is an unknown Hospital to them. Eventually, with the intervention/involvement of the Divisional Police Officer who provided vehicle, they ended up at a certain police station/ headquarters at Sokoto, where the Appellant for the first time, stated that Sa’adatu his wife was dead. Appellant volunteered two written statements under caution to the police. Both were tendered admitted and marked as Exhibits C and C1 respectively. Appellant changed and had a somewhat different versions of what actually happened to his wife and which led to her death, in each of the statements written under caution.
PW1 – Sgt. Umaru Majidadi, PW2 – Sgt. Garba Musa and PW5 – Sgt. Danladi Chigoro, all testified with regards to sequences of events which unfolded and roles which they played after receipt of reports on 11th January, 1999 and being detailed to investigate the same. Their investigation led to the discovery of the corpse of an unknown female under a culvert at Janzomo Junction along Shagari – Kajiji highway. PW5 filled the necessary Coroners form, invited the Doctor who conducted post mortem examination on the corpse of the unknown female at the spot/scene of its discovery because of the decomposed state of the corpse, which was eventually buried under the culvert where it was found. Exhibit B, the medical report stated the cause of death of the unknown female corpse, in a decayed/decomposed state, which was found under the culvert, half naked, with maggots over the body and without eyeballs, to be strangulation.
The Appellant in both Exhibits C and C1 made on 24th March, 1999 and 29th March, 1999 respectively, and in his oral testimony in defence before the trial court, admitted that one Sa’adatu Torankawa who “died seven months ago here in Sokoto” was his wife. That, they got married in July, 1997. He claimed that one night, while conveying her to the hospital and riding pillion on his motor cycle, she fell off and died. Thereafter, he ended up dumping her corpse under a culvert by the side of the main road, along Shagari – Kajiji road. Appellant added that he concealed her death from her family members, relations and his first wife who was not around when the incident which led to the death of Sa’adatu occurred. He also denied having anything to do with her death. He sought and put up the defences of accident and self defence from fear of reprisal attack from her family members. Learned counsel for the parties addressed the trial court extensively in their respective final addresses. In a considered judgment, delivered on 29th June, 2007, the learned trial judge – Bello Abbas, J., reviewed the evidence adduced and rejected the defences raised by the Appellant. He convicted the Appellant on the charge of culpable homicide punishable with death for causing the death of his wife, Sa’adatu Torankawa and sentenced him to death by hanging.
The Appellant appealed to this Court vide his notice and grounds of appeal filed on 12th September, 2007. Pursuant to the leave of this Court sought and obtained on 10th June, 2009, Appellant filed ten grounds of appeal in respect thereof. On 4th February, 2010, when the appeal came up for hearing, A. A. Owolabi Esq., learned counsel for the Appellant adopted and relied on Appellant’s brief which was filed on 23rd September, 2009. In the said brief, three issues were submitted for the determination of this appeal.
They are:-
“(1) Whether the trial court was right to have convicted the appellant for the offence of culpable homicide punishable with death without the respondent having proved the combined elements of the offence.
(2) Whether adequate consideration was given to the defence of the appellant
(3) Whether the court can safely convict on the uncorroborated evidence of PW3, PW4 and PW7 being that they are witnesses with their own purpose to serve.”
The learned counsel for the Respondent, Mohammed Lawal Abubakar, Solicitor General, Sokoto State, also adopted the Respondent’s brief which was dated and filed on 28th October, 2009.
Two issues were identified therein for the determination of this appeal. They are:-
“(a) Whether the charge of culpable homicide punishable with death preferred against the appellant was proved by the prosecution beyond reasonable doubt?
(b) Whether the trial court rightly held that the defences of accident and self defence respectively were not available to the appellant?”
Issues precede arguments in a brief and are meant to graphically encapsulate the grounds of appeal which articulate the complaints in the notice of appeal. I shall therefore, treat and determine this appeal on the basis of the two issues distilled in the Respondent’s brief and the third issue framed by the Appellant herein.
Issue No.1
This issue is concerned with whether the Respondent proved its case against the Appellant beyond reasonable doubt. Learned counsel for the Appellant on this issue, submitted that the level of decay, made it impossible to positively identify the corpse of the deceased and the evidence of PW1, Sgt. Umaru Majidadi, PW2, Sgt. Garba Musa, PW4, Kulu Isa, PW5, Sgt. Danladi Chigoro and PW6, Sgt. Samuel James failed to establish that the Appellant was responsible for the death of the deceased or link her death to any act or acts of the Appellant. Calling in aid the cases of Michael v. The State (2008) 6 SCNJ 1; Ochemeje v. The State (2008) 6 SCNJ 143; Adara v. The State (2006) All FWLR (Pt. 311) 1777 and a host of other cases, it was contended by the learned counsel for the Appellant that in order to prove the offence with which the Appellant was charged, the Respondent is required to prove that the death of a human being has occurred; that such death was caused by the act or omission of the Appellant, with the requisite intention of causing death or grievous bodily harm and with the knowledge that death would be the probable consequence of such an act or omission.
Placing reliance on Nwaobasi v. The State (2008) All FWLR (Pt.446) 1979, the point was made, that the standard of proof required by law on the part of the Respondent is one beyond reasonable doubt. Also, that the three ingredients must be established mandatory and cumulatively. Learned Appellant’s counsel observed that in the instant case, the Respondent, “succeeded in proving that the death of a human being has occurred, but failed to prove that the act of the Appellant was responsible for the death and if they do, they however, failed to prove the third ingredient which requires that the Appellant should have had an intention of causing the death of the deceased,” as required by Section 221(a) & (b) of the Penal Code. Importantly, that the evidence of prosecution witnesses did not link Sa’adatu, the wife of the Appellant with the corpse found under a culvert at Janzomo junction along the highway. It was however, conceded by the learned counsel for the Appellant that Sa’adatu is dead and that there is no dispute that a corpse was found under the culvert with a medical report that the cause of death of the corpse so found was strangulation, but that the corpse found by the Police was not that of Sa’adatu and there was no evidence that she was strangled by the Appellant.
In another submission, the learned counsel for the Appellant contended that it was not conclusively proved by the Respondent that the body examined by the Doctor and in respect of which Exhibit B was issued was that of the deceased named in the charge. Reference was made to Princewill v. The State (1994) 6 NWLR 353) 703. Also, that the pieces of evidence given by PW4 and PW5 regarding the spot where the Appellant indicated that he dumped the corpse of Sa’adatu and the spot where the Police testified that they found and buried the corpse of an unknown and unidentified female corpse contradicts one another. It was argued that the Appellant in his evidence, stated that he dumped the corpse of Sa’adatu under the culvert and “not an area close to the culvert where the corpse found and investigated by PW5 was buried.” The finding of the learned trial Judge thereon at page 92 of the record of appeal was faulted as having been based on an erroneous premise.
Learned Appellant’s counsel submitted that Appellant’s conviction by the trial court was based on insufficient circumstantial evidence which was not cogent, compelling, unequivocal and irresistibly leading to the conclusion that the Appellant and no one else could have caused the death of the deceased as required by law.
Learned counsel maintained that on the whole, the evidence adduced by the Respondent was not sufficient to warrant the drawing of requisite inferences from the circumstances of the case that the Appellant was responsible and “that the act of dumping the corpse of Sa’adatu near a culvert is not enough pointer that the Appellant intentionally killed Sa’adatu.” Additionally, that the Appellant’s failure to inform either the deceased’s parents or constituted authorities such as the police, of her accidental death does not forcibly suggest that the Appellant was the one who killed the deceased. It was contended that the circumstantial evidence was not examined narrowly by the trial court and gaps and doubts exist in the case of the prosecution which ought to have been resolved in favour of the Appellant. We were referred to the cases of Solomon Adekunle v. The State (2006) 6 SCNJ 275; Aruna v. The State (1990) 1 NWLR (Pt. 124) 92; Adepetu v. The State (2001) 5 SCNJ 371; Monday Nweze v. The State (1966) 2 SCNJ 42 and Akpan Archibong v. The State (2006) All FWLR (Pt. 1747) 1766. In conclusion, we were urged to hold that the Respondent failed to prove its case beyond reasonable doubt and that we should resolve this first issue in favour of the Appellant who is Entitled to a discharge and acquittal.
Learned counsel for the Respondent in the Respondent’s brief settled by Hadiza Sahabi Jaredi Esq., Principal State Counsel, Ministry of Justice, Sokoto State, responded to the first issue adopted herein by reiterating the established position of the law, that in any criminal trial, the burden of proof lies with the prosecution and the standard is not proof beyond all shadow of doubt, but proof beyond reasonable doubt. Reference was made to Agbo v. The State (2006) 6 QCCR 48; Emoga v. The State (1997) 1 NWLR (Pt. 483) 515 and The State v. Danjuma (1997) 5 NWLR (Pt. 506) 512. Referring to the case of Kaza v. The State (2008) 32 WRN 46/ 31 and after listing the essential ingredients of the offence of culpable homicide punishable with death, it was submitted that the Respondent established the first ingredient that the deceased named in the
charge has died, through the extra judicial statements of the Appellant, tendered and admitted in evidence as Exhibits C and C1 respectively. Hence, the trial court was right when it he Id at page 94 of the record of appeal, that the death of a human being – the wife of the Appellant has actually taken place.
On this issue and with regards to the second ingredient of the offence of culpable homicide, to the effect that the death of a person resulted from the act of an accused person, relying on Emeka v. The State (2001) 14 NWLR (Pt. 734) 666; Akinmoju v. The State (1995) 7 NWLR (Pt. 406) 204 and Igabele v. The State (2004) 34 WRN 83, the learned counsel for the Respondent contended that the prosecution can rely on confessional statement, circumstantial evidence and evidence of eye witnesses to prove a case of culpable homicide or any criminal offence. It was conceded that in the instant case, there was no direct eye witness account of the events which led to the death of Sa’adatu. However, that there are factual questions or situations that can be determined by a consideration of the evidence on the printed record, which include Exhibits B, C and C1 and testimony of PW1, PW2 and PW5. Additionally, that Exhibits C and C1 as well as the evidence of the Appellant as DW1, established that he was the person “last seen” with his deceased wife and the law presumes that the person last seen with the deceased bears full responsibility for the death of the deceased if it turns out that the person last seen with him has turned up dead. Reference was made to Archibong v. The State (2007) 10 WRN 21.
Learned counsel for the Respondent placed reliance on a host of cases and submitted that, “a court of law is permitted and indeed, can draw the necessary inference from circumstantial evidence” and convict thereon. Fourteen factual situational circumstantial instances were listed and referred to by Respondent’s learned counsel as overwhelming circumstantial evidence in the instant case, which point directly to the Appellant and none other.
On the issue of contradictions in the evidence of the prosecution witnesses, it was submitted by the learned counsel for the Respondent, that for such contradictions to affect conviction, they must affect the substance of the case and be sufficient to raise doubt regarding the guilt of the Appellant. Reliance was placed on Iko v. The State (2001) FWLR (Pt. 68) 1161; Uwagboe v. The State (2007) All FWLR (Pt. 350) 1323 and Sale v. The State (1993) 1 SCNJ 15/22 – 23 quoting Belgore, JSC (as he then was).
On the third ingredient, it was submitted by the learned counsel for the Respondent, that based on the series of prevarications and fabrications made by the Appellant vide Exhibits C and C1 and his oral testimony in defence, that the trial court rightly fixed the Appellant with the knowledge that death would be the probable consequence of his acts and thus, in the given circumstances of this case, the trial court rightly treated the Appellant as an unreliable witness. We were referred to a host of cases on the points being made. We were urged in conclusion on this first issue, to resolve the same as argued in favour of the Respondent.
By virtue of Section 221 of the Penal Code, the ingredients of the offence of culpable homicide punishable with death are:-
“(a) That the death of a human being actually took place;
(b) That such death was caused by the accused;
(c) That the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.”
All the ingredients must be proved or co-exist before a conviction could be secured. Failure to establish any of the ingredients would result in an acquittal. See Adava v. The State (2006) 9 NWLR (Pt.894) 152/167; Akpan v. The State (2007) 2 NWLR (Pt.1019) 500.
By virtue of Section 138 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, the standard of proof of the commission of a crime is proof beyond reasonable doubt. The evidential burden of proof rests squarely on the prosecution and invariably does not shift throughout the proceedings.
The question arising under this issue as argued, is whether the totality of the evidence adduced before the trial court in this matter, established the guilt of the Appellant for the offence of culpable homicide punishable with death beyond reasonable doubt. A reasonable doubt regarding the culpability of an accused person arises when one or more of the factual circumstances proved in a criminal trial is inconsistent with the guilt and at the same time may be inconsistent with innocence of the said accused person. Thus proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt and therefore if the court, based on the evidence before it, entertains no doubt that the accused person committed the offence the burden would have been discharged and the conviction of the accused person will be upheld even on the evidence of a single witness, confession or circumstantial evidence. See Obiakor v. The State (2002) 10 NWLR (Pt.776) 612; The State v. Danjuma (1997) 5 NWLR (Pt.506) 512; Bolanle v. The State (2005) 7 NWLR (Pt.925) 431; Alonge v. I.G.P. (1959) SCNLR 574.
The law is settled that the guilt of an accused person can be proved by –
(a) The confessional statement of the accused person; or
(b) Circumstantial evidence; or
(c) Evidence of eye-witness of the crime.
Invariably the prosecution does not always require an eye-witness account in order to convict an accused of culpable homicide if the charge can be proved otherwise. See Lori v. The State (1980) 8- 11 SC. 81; Emeka v. The State (2001) 14 NWLR (Pt.734) 666.
A court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without any other evidence. See Ibo v. The State (1971) 1 NMLR 245. For circumstantial evidence to support a conviction for culpable homicide punishable with death, it must lead only to one conclusion that it had been committed and that it was committed by the accused person. Before an accused person can be convicted for culpable homicide on circumstantial evidence, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the court that no rational hypothesis other than culpable homicide can the facts be accounted for. A conviction for culpable homicide on circumstantial evidence must point to the guilt of the accused with the accuracy of mathematics. A court cannot convict on circumstantial evidence, especially in a case of culpable homicide where such evidence points in more than one direction. See The Queen v. Iromachi (1963) 1 SCNLR 8; Ubani v. The State (2003) 4 NWLR (Pt.809) 51.
Circumstantial evidence is very often the best evidence, moreso, if it is the only one available, like in the instant case where there was no single eye witness to what happened on that fateful night, between the Appellant and his deceased wife. This again, being a case that cries to the high heavens of the existence of sickening foul play. Thus, it is evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and or precision of mathematics. It is therefore not a derogation of evidence to say that it is circumstantial, so what? However, circumstantial evidence, to be sufficient to ground a conviction in a criminal trial, particularly in homicide cases must be complete and unequivocal. It must be so compelling and must lead to the irresistible conclusion that the accused and no one else did the deed and as such, it is only the accused person and no one else, who should bear criminal culpability for the offence alleged or charged. The facts must be incompatible with the innocence or non culpability of the accused and incapable of explanation upon any other reasonable hypothesis or consideration than that of his guilt, moreso, when any such doubt where it exists must be resolved in favour of such an accused.
What is more and indeed a conviction for culpable homicide can be sustained even in the absence of the corpus delicti, that is without actually seeing, recovering or producing the body of the deceased person, provided that there is strong direct evidence which linked the accused person to the death of the deceased and thereby justify such conviction. See Igabele v. The State (2006) 6 NWLR (Pt.975) 100; Princewill v. The State (1994) 6 NWLR (Pt.353) 703; Babuga v. The State (1996) 7 NWLR (Pt.460) 279 and Uwe Idighi Essai & Ors. v. The State (1976) 11 SC. 39.
What are the proved circumstantial evidence in this case? The learned trial judge reviewed the pieces of circumstantial evidence in details in his judgment and found as follows:
“From the prosecution’s led evidence of which I find no material contradictions or inconsistency and which evidence I accept and believed, there is combination of facts which forms circumstantial evidence sufficient enough to establish the offence of culpable homicide against the accused person in this case establishing the link between the act of the accused to the deceased on the manner and circumstances that she met her death.”
With the medical report – Exhibit B stating that the deceased was strangled and with the Appellant pointing out where he dumped the corpse of Sa’adatu, his wife, and which said spot turned out to be the exact location where the corpse of an unknown female of about 12 – 13 years, in a decomposing state was buried and when no one other than the Appellant was implicated in the death of the deceased. The necessary inference from pieces of such circumstantial evidence would flow and the Appellant could be held responsible and accountable for what led to the death of his deceased wife.
Nevertheless, the court must take great care in coming to conclusion and drawing an inference of guilt of an accused person from circumstantial evidence so as not to fall into serious error. Therefore, circumstantial evidence must be narrowly and critically examined so that a possibility of contrived or fabricated evidence meant to cast suspicion on an innocent person is completely ruled out. Therefore, for circumstantial evidence to form the basis of a sustainable conviction on appeal, the circumstances must clearly and forcibly suggest that the accused was the person who committed the offence charged and that no one else could have been the perpetrator. See Udedibia v. The State (1976) 11 SC.133; Adie v. The State (1980) 1-2 SC.116. Hence, where the facts accepted by the trial court called for an explanation from the accused person and none was forthcoming, available circumstantial evidence will be sufficient proof beyond reasonable doubt.
With regards to the identification of the spot where the Appellant pointed out as the place where the corpse of Sa’adatu was dumped, going by the evidence of PW4 thereon and that of PW5 regarding the spot where the corpse was buried; it was the submission of the learned counsel for the Appellant that the two pieces of evidence in this regard contradicts one another and as such the finding of the learned trial judge in that regard and with particular reference to the second ingredient of the offence charged, to the effect that the death of the deceased was caused by the act or omission of the Appellant, was erroneous and thus cannot support the conviction. It is the law, that it is not every inaccuracy in the testimonies of prosecution witnesses that will render such testimonies unreliable. For contradictions in the evidence of prosecution witnesses to be material and capable of rendering the evidence unreliable and not capable of being acted upon, such contradictions or inconsistencies must relate to the material ingredients of the offence charged. The contradictions must be substantial and fundamental to the main issue for them to be capable of being resolved in the accused’s favour and be fatal to the prosecution’s case. Hence, minor inaccuracies and discrepancies that do not touch the core justice or substance of a case should not be taken as sufficient ground to disturb a judgment. In the instant case, there were no material contradictions in the evidence of prosecution witnesses which would have rendered the evidence unreliable. See Ehot v. The State (1993) 4 NWLR (Pt.290) 644; Ndike v. The State (1994) 8 NWLR (Pt.360) 33; Onubogu v. The State (1974) 9 SC. 1; Okeke v. The State (1995) 4 NWLR (Pt.392) 676; Theophilus v. The State (1996) 1 NWLR (Pt.423) 139; Nwaeze v. The State (1996) 2 NWLR (Pt.428) 1. The alleged contradiction or disparity in my view could not be said to have raised any doubt in the mind of the trial court as would have called for any explanation at all or resolution of the same being made in favour of acquittal of the Appellant.
The fact that Sa’adatu is dead is not in dispute. The Appellant himself said this much, over and over again. Appellant also stated in his testimony before the trial court, that since he dumped the corpse of his wife in the said culvert and took off, he has not set eyes on her or the corpse again. The question is, whether the doctrine of “last seen” is invocable in this case and what does it connote? The doctrine of last seen’ means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with him has turned up dead.
Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other safe conclusion, then there is no room for acquittal. It is the duty of the accused person in such damnifying circumstances to give an explanation relating to how the deceased met his or her death. In the absence of such an explanation, surely and certainly, a trial court and even an appellate court will be perfectly justified in drawing the necessary inference that the accused person must have killed the deceased. See Emeka v. The State (2001) 14 NWLR (Pt.734) 666; Nwaeze v. The State (1996) 2 NWLR (Pt.428) 1; Gabriel v. The State (1989) 5 NWLR (Pt.122) 457; Adepetu v. The State (1998) 9 NWLR (Pt.565) 185; Adeniji v. The State (2001) 13 NWLR (Pt.730) 375; Uguru v. The State (2002) 9 NWLR (Pt.771) 90; Igabele v. The State (2006) 6 NWLR (Pt.975) 100.
In the instant case, Appellant made two written statements to the police under caution, dated 24th March, 1999 and 29th March, 1999 respectively, with endorsement on the latter by a superior police officer. Both statements were tendered, admitted and marked as Exhibits C and C1 respectively. Appellant herein, gave three staggeringly different versions or explanations regarding the accident which he claimed to be the cause of Sa’adatu’s death. First in time was what he stated in Exhibit C and it is quoted in extenso below:
“…in July 1997 I got married to one Sa’adatu. Presently… Sa’adatu is (deall) dead. Sa’adatu died about seven months ago here in Sokoto. I can remember that on that day Sa’adatu was bleeding from her private part then I took her on my m/cycle from Yabo in order to bring her to Usman Danfodiyo University Teaching Hospital.
However on our way to the hospital at a junction opposite Paila restaurant near Giginya Hotel Sokoto Sa’adatu fell down from my m/cycle. On seeing this I conveyed her to the hospital i.e. UDUTH. When I entered the hospital premises I did not take her to see any doctor I only dropped her at the hospital’s car park and went away and at that time she was already dead. I concluded that she was dead because at the time I left her, she was not breathing. I can remember also that I noticed when Sa’adatu fell from my motor cycle that she sustained injury on her head. When I left Sa’adatu’s body at UDUTH’s premises, I went back (home) to Yabo but I did not inform anybody about her death because I was afraid of myself being killed by her parents….I can remember also that after dropping Sa’adatu body at the premises of Usman Danfodiyo University Teaching Hospital I still went back to the hospital and pick up the body and took it on my m/cycle and dumped it at that same night at Maraki village by the side of the main road near a culvert.”
The second version came out in Exhibit C1. He stated thus:
“… I can remember that sometime in January 1999, my wife Sa’adatu fell sick one night. Then I conveyed her on my motorcycle from Yabo in order to take her to hospital in Sokoto. However on our way to Sokoto after we have passed mil goma village, she died. When I noticed that she have died I put her body in a sack then I conveyed the corpse on my m/cycle and went and dumped it under one culvert along Shagari – Kajiji road near one village called Janzomo.”
The third version was blurted out on 5th June, 2007 during Appellant’s testimony before the trial court and regarding the alleged accident. He said:
“…The name of my second wife is Sa’adatu Torankawa….The said Sa’adatu is now dead. It is not true that I killed her. …Sometimes in the month of December 1998 but I cannot remember the day, that sickness attacked her seriously. I then went to Torankawa to inform her parents about that sickness. I then came back and took her to the hospital here in Sokoto.
I was carrying her on my motorcycle and on reaching a point at Milgoma, Sa’adatu fall down.
I applied brake, made U-turn and went back to the spot where she fall down and found her dead. When I confirmed that she was dead, I carried her on the motorcycle. Vesper and went to Janzomo culvert as I had no money to hire motor vehicle I dropped the corpse of Sa’adatu at Janzomo culvert and went on my own way back home Yabo. I did that in self-defence.”
In the version contained in Exhibit C, Sa’adatu died about seven months ago when she fell down while riding pillion on Appellant’s motorcycle, “at a junction opposite Paila restaurant near Giginya Hotel Sokoto.” With this, the accident occurred sometimes in September, 1998. The corpse was firstly dumped at UDUTH’s car park. It was later retrieved and dumped at Maraki village by the side of the main road, near a culvert. In Exhibit C1, the incident happened “sometime in January, 1999”. Nothing was said about her falling off Appellant’s motorcycle, but that she died after they have, “passed mil goma village.” The corpse was dumped under “one culvert along Shagari-Kajiji road near one village called Janzomo.” In Appellant’s oral testimony, the incident happened sometimes in December, 1998 and she fell down while being conveyed on Appellant motorcycle.
PW7 Kulu Abdullahi, who the Appellant said he married in 1996 testified that the Appellant constantly battered and brutalized both herself and Sa’adatu. She added that he threatened that, “he will be the cause” of their death. She was not cross examined thereon, talk less of being shaken under cross examination. Thus, nothing stops a trial Judge, who witnessed the demeanour of the witnesses and saw it all so to say, from drawing certain necessary inferences from such pieces of evidence.
In this case, no one other than the Appellant can say with certainty or finality, how Sa’adatu truly met her death. The Appellant who was last fixed and lived as a couple with her, gave three differing versions as to how she met her untimely death. This is in addition to evasive and spurious answers given, whenever enquires are made about Sa’adatu’s whereabouts by her relations. In such an instance, it stands to reason that none of the versions will be dignified, accepted or regarded as the truth and worthy of reliance being placed thereon. While facts are sacred, truth is a burden.
Consequently, the established doctrine of last seen is invocable and in my humble viewpoint, rightly invoked in the given circumstances of this case. This is moreso, because when an explanation is owed, one is accordingly due. It is not in every situation that silence is golden. At times, it could be rather unsafe, incriminating and inculpatory. People do not hide or tell lies, if they do not have something to hide from or away from others.
The Appellant was the last person with whom Sa’adatu was living and was with on the day she died. Thus, if Exhibit B which was tendered at the instance of the defence through PW5 stated that the deceased was strangled to death, the Appellant was the only person in the given circumstances of the instant case, who could have strangled her.
The learned counsel for the Appellant argued that the act of dumping the corpse of Sa’adatu under a culvert is not enough pointer that the Appellant intentionally killed her. I respectfully disagree with him. Any husband, who dumped the corpse of his wife in such a callous, depraved and despicable manner as in the instant case and kept mum about it and her whereabouts for weeks when asked, must have intended and or caused her death, hence the callous concealment of the dastardly act with conflicting versions of what actually happened to her. For months, whenever parents or relations of Sa’adatu asked after and or of her whereabouts, the Appellant serially gave one story or the other. Thus, for months on end, nobody saw the deceased.
Further, I think common sense will dictate that if a person was last seen with another, the latter has the duty to inform the former’s family or the authority of the whereabouts of the former. If he was involved in an accident and died, drowned or devoured by an animal, the latter still has a duty to alert the former’s family or authority.
The Appellant herein did nothing, even after he became aware that an unknown female corpse had been found and buried under a culvert. This remained the state of affairs, until the police took the matter up afresh, when the bubble burst sometimes in March, 1999 and the parents of the deceased got wearied of their being fenced off and eventually, the Appellant disclosed that the decease died and subsequently led them to the spot where he dumped her corpse and which said spot was the same with where the corpse of an unknown female was found and buried on 11th January, 1999.
The conduct of the Appellant in spinning all sorts of yarns the parents and relations of his deceased wife off the seen when they persistently asked about her whereabouts is not consistent with innocence but guilt.
In cases of last seen, there must be satisfactory and or convincing explanation from the person with whom the deceased or missing person was last seen. For one, people just don’t disappear into thin air, evaporate into smoke or suffer an invisible meltdown,
The truth and story regarding what actually happened between deceased or missing person and the person who had the last contact with the deceased must necessarily emanate from that sole source.
A case is said to be proved beyond reasonable either by direct oral evidence, confession or by circumstantial evidence.
Although witnesses can lie, circumstances cannot lie. Consequently, and in that sense, circumstantial evidence affords better proof beyond reasonable doubt – See Adio v. The State (1986) 2 NWLR (Pt. 24) 581. I am conscious of the position in law to the effect that for a circumstantial evidence capable of supporting conviction in case of culpable homicide punishable with a death or murder such circumstantial evidence must be cogent, complete, and unequivocal.
It must be so compelling and must lead to the irresistible conclusion that the accused person and no one else could have committed the homicide. Basically, the facts must be incompatible with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of his guilt when looked at from whatever angle. In the instant case, the facts accepted by the trial court called for reasonable, justifiable explanation by the Appellant and none was forthcoming. Thus, the circumstantial evidence adduced by the Respondent was sufficient proof beyond reasonable doubt of the guilt of the Appellant in the given circumstances of this case. See Lawson v. The State (1975) 4 SC 115 The circumstantial evidence adduced by the prosecution ,s overwhelming and proved beyond reasonable doubt that it was the Appellant and no one else who killed his deceased wife. See Lori v. The State, Adepetu v. The State (1998) 9 NWLR (Pt. 565) 185 Oladejo v. The State (1987) 3 NWLR (Pt. 61) 419; Buje v. The State (1995) 4 NWLR (Pt. 185) 287; Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 1.
In my considered view, the farts of this case disclosed just that and I am left in no doubt whatsoever regarding the culpability of the Appellant herein in the gruesome manner in which his wife met her untimely death coupled with the degrading manner and treatment to which her corpse was subjected. The facts of this matter appear similar to those in Peter Igho v. The State (1978) 3 SC 87 at page 90. Therein too, the deceased was last seen in company of the appellant. Eso, JSC at page 90 pronounced as follows :-
“The only irresistible inference from the circumstance presented by the evidence in this case is that the appellant killed the deceased.
We can find no other reasonable inference from the circumstances of the case. The facts which were accepted by the learned trial Judge amply supported by evidence before him, called for explanation, and beyond the untrue denials by the appellant (as found by the learned Judge) none was forthcoming. See R. v. MaryAnn Nash (1911) 6 CAR 225 at 228. Though this constitutes circumstantial evidence, it is proof beyond every reasonable doubt of the guilt of the appellant.”
If there are circumstances where cause of death could be inferred from circumstances of the case, I strongly feel that the present case is one of those instances. Same stands out clearly in my view. See Aiguoneghian v. The State (2004) 3 NWLR (Pt.860) 367 at 414. Circumstantial evidence herein is very compelling and leaves no room for acquittal. It leads to no other conclusion as all accusing fingers point at the direction of the Appellant. See Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 1; (1996) 2 SCNJ 42. Circumstantial evidence point only to the Appellant and lead conclusively and indisputably to his guilt. I see no co-existing circumstance that weakens the inference drawn. The case was, no doubt, thereby proved beyond reasonable doubt. See Peba v. The State (1980) 8 – 11 SC 76; Omogodo v. The State (1981) 5 SC 5. Such is in line with the dictate of Section 138(3) Evidence Act, Cap. 112, Laws of Federation of Nigeria, 1990.
A doubt in the mind of a court presupposes that the case against the accused person has not been proved beyond reasonable doubt as required by law. In the instant case and based upon the evidence contained in the record of appeal, I do not harbour any doubt regarding the guilt of the Appellant. I accordingly resolve this issue against the Appellant and in favour of the respondent. Issue No.2
This issue is concerned with whether adequate consideration was given to the defences raised by the Appellant. The learned counsel for the Appellant contended on this issue, that the Appellant consistently maintained both in his statements to the Police’ Exhibits C and C1 respectively and in his evidence to the trial court that he did not kill his wife, rather, that she accidentally fell off from his motor cycle, while being conveyed to the hospital. He added that the Appellant admitted the fact that he dumped Sa’adatu’s corpse in a culvert at Janzomo junction in self defence, though an inappropriate use of word, but on account of his being afraid of what his aggrieved in-laws might do to him. Thus, the Appellant raised the plea of accident as the cause of deceased’s death and plea of self defence as the reason for dumping her corpse by the culvert. Again, that the plea of self defence raised by the Appellant was for the dumping of the corpse and not for killing the deceased as it was wrongly held by the learned trial judge. It was then submitted that the issue of accident as the cause of death of Sa’adatu was not properly examined or given adequate consideration by the learned trial judge and this has led to miscarriage of justice. Calling in aid the case of Solomon Adekunle v. The State (Supra), it was submitted that the plea of accident which is availing to the Appellant is exonerating. Also, that when a defence is raised by a person charged with a crime, no matter how weak, foolish, false or unsound such a defence might seem, it is the duty of a trial court to give due considerations to all availing defences, whether they are raised or not by the Appellant. Reference was made to Nwanga Nwuzoke v. The State (1988) 1 NWLR (Pt.75) 529; Moses v. The State (2007) FWLR (Pt.141) 1969; Williams v. The State (1992) 8 NWLR (Pt.261) 515; Akpabio v. The State (1994) 7 NWLR (Pt.359) 671. Reference was also made to Annabi v. The State (2008) All FWLR (Pt.431) 895, where it was held inter alia that an appellate court is in as good a position as the lower court to consider the defences raised by an Appellant where the lower court failed to do so. We were urged to resolve this issue in favour of the Appellant.
On this second issue, the learned counsel for the Respondent cited Kaza v. The State (2008) 32 WRN 46/88 and Ahmed v. The State (1999) 7 NWLR (Pt.612) 641/679 and reiterated the position of the law, that it is firmly established that a trial court in a criminal trial as in the instant case, must consider all availing defences raised by an accused person and all other defences which emanated from the evidence adduced before the trial court. Learned Respondent’s counsel pointed out that in the instant case, the evidence adduced by the Appellant in his defence and the contents of Exhibits C and C1, are mutually inconsistent with one another and thus liable to be rejected and treated as unreliable.
Learned Respondent’s counsel raised the poser as to whether it can really be said that the defence of accident is availing to the Appellant, given the peculiar circumstances of this case and upon due application of the requisite objective test and she answered it in the negative. Adekunle v. The State (supra) was cited to buttress the point being made.
Learned counsel for the Respondent observed that if the learned Appellant’s counsel had conceded that the defence of “self defence as used by the appellant was not appropriately used”, then, “what is the complaint all about in relation to the defence of self defence?” It was then submitted that from the clear wordings of S 222(2) of the Penal Code, the right of self defence enures when death arises from the exercise of the right of private defence of person or property and it must have been exercised in good faith.
Thus in the instant case, the trial court cannot give the Appellant, the benefit of defences which cannot be supported by evidence adduced before it. It was added that the trial court gave adequate
consideration, painstakingly reviewed all the pieces of evidence before it and after evaluating and ascribing probative value to the same it came to the conclusion that the defences of accident and self defence are not available to the Appellant, who merely raised them as an afterthought. That both defences were rightly rejected by the trial court. We were urged to resolve the issue in favour of the Respondent.
Regarding the issue of plea of accident and self defence, appropriately or inappropriately used in the instant case, the learned trial judge observed in this vein:-
‘The other portion raises self defence of an accident to the effect that the deceased fell down from accused’s motorcycle, but instead of taking her to hospital or inform her parents to enable them to bury the corpse, accused choosed to dump the said corpse by his own admission in a culvert at Janzomo junction along Kajiji-Shagari road which he said he did in January, 1999.
For a plea of self-defence to succeed justifying the killing of a human being under section 62 of the Penal Code, it must be shown that the life or body or property of the accused was in imminent danger from an attack by the deceased.”
Having given due consideration to the same, he reasoned and found thus :-
“In considering defences available to the accused, I observed that accident was suggested in both his statements Exhibits C & C1 and in his defence as DW1.
As regards his claim that the deceased fall down from his motorcycle when he was carrying her to the hospital which self defence of an accident accused raised much dust on in relation to the deceased who was his wife, under normal circumstances, one expects that accidents when they do occur at all and a person who is apparently and directly involved and would want to be believed as such and wants to take benefit of same as self-defence, one needs not be reminded therefore, not even the least, a policeman in this case who was the accused, who is presumed to know law and order that usually such unfortunate events like road accidents, when they happened, a report is expected to be made to the constituted authority in this case to the police. In the instant case, the accused who, by evidence was said to be a former police officer to the rank of a sergeant whose last duty station was Yabo division criminal Investigation Bureau, and police who are trained to protect the lives and the properties of the citizenry, cannot by any stretch of imagination be the one that admittedly dumped corpse of his beloved wife under a culvert for whatever he was fearing or anticipating from the deceaseds relation that they will kill him should he inform them about her death and instead decided to throw her in a culvert, cannot in my respectful view therefore be entitled to take the benefit of self-defence as his subsequent acts of dumping her, had destroyed whatever self defence he could have raised.”
The fact remains that nobody gets pilloried or guillotined for having been or being involved in an accident, regardless of the fact that accidents are caused as they just do not happen. However, the subsequent conduct, action, inaction or attitude of a person after the occurrence of an accident, is capable of throwing revealing lights casting glowing rays and thereby showing in bright incandescent colours, whether the event can rightly be regarded as an accident or not. From the said accident of the deceased’s alleged falling off from Appellants motorcycle, to the secretive stealth like dumping of her corpse encased in a sack and keeping a sealed lips thereafter, all constitute one long chain of sequences of events which are closely connected and clearly inter-related. Only the truth which is not forthcoming in this case can unravel the mystery embedded therein.
Similarly the defence of accident is not availing on the basis of the facts proved and the given circumstances of the instant case to the Appellant who for months, concealed the fact of his wife’s death from all and sundry. Hence, the Respondent herein, negatived availing effects of any invocation by the Appellant of the defence of accident.
For the defence of accident to avail an accused person, it must be raised timeously. In the instant case, the Appellant did not raise his defence of accident if availing at all, timeously. Additionally, his testimony thereon was unreliable, having regard to the inconsistent statements, which he made in his written statements under caution to the police – Exhibits C and C1 respectively. It is settled law, that when an accused person makes a statement to the police and in his evidence in court gives something contrary to it, such testimony is usually treated as unreliable and is therefore ignored. See Nathaniel Mbenu & Anor. V. The State (1988) 17 SCNJ (Pt.11) 211/220; Amusa v. The State (2002) 12 NWLR (Pt.750) 73 and Okafor v. The State (2006) 4 NWLR (Pt.969) 1. Again, where an accused person claims that he did not commit the offence for which he was charged, the defence of accident does not arise.
This is so, because no offence has been committed upon which the defence will rest. See Okelle v. The State (1999) 2 NWLR (Pt.590) 246. In the given circumstances of this case, the trial court rightly rejected the defence of accident sought to be raised by the Appellant.
Regarding the plea of self defence appropriately used or otherwise, the act of dumping the corpse of one’s wife in/under a culvert on a highway and labelling it as a form of self defence from anticipated reprisal attacks from her family members or relations, in the given circumstances and facts of this case is bizarre and ghouhsh. What manner of self defence is that in life? To my mind, it sounds more of a calculated, callous, dastard and despicable act, conjured from a sadistic and soulless person in the ilk of the Appellant. Such speculative and futuristic act of self defence is unknown to and not recognized by law.
The right of private defence under S.59 of the Penal Code does not cover, envisage, contemplate and or is not meant to serve as a defence to anticipatory and speculative futuristic attacks as in the instant case. It would wrought untold, unimaginable and unthinkable havoc, if anticipatory or projected futuristic exercise of the right of private defence is given ready acceptance upon invocation by the likes of the Appellant herein and regarded as an availing exculpating defence What is more, S.63 of the Penal Code provides for recourse being had to public authorities in the event of an impending assault, in a successful plea of self defence exercised in good faith, without
excess and premeditation, it is the assailant who is eventually Idled or incapacitated in the exercise of the right of self or private defence by the accused person and not a harmless defenceless victim like the deceased in the instant case.
Plea of private or self defence is predicated on the natural principle of kill or be killed. Thus, the accused person must have reasonable grounds to believe that his own life is at stake and in utmost danger, with no other viable option of saving it than to kill his rampaging assailant. In the instant case, there was no iota of evidence that the Appellant’s deceased wife, posed such a deathly threat to the Appellant, so as to raise the plea of private/self defence against a futuristic anticipatory attack from family members or relations of Appellant’s deceased wife. There is no reasonable apprehension of death or grievous harm confronting the Appellant herein, to have warranted the successful invocation of the plea of private defence, in the given circumstances and established facts of this case. The learned trial judge correctly rejected it as an after thought, after a proper review of the same. I am in full agreement with him and the submissions of the learned counsel for the Respondent herein thereon.
Again, the defence of self defence and accident are mutually exclusive. While the former admits of intention in the doing of the act, the latter is unintended and a negation of intention. It is thus nighly improbable to rely on both defences simultaneously or contemporaneously. In the case of Karuwa Takida v. The State (1969) 1 All NLR 270, the Supreme Court restated the general broad principles of law, that no court is bound to speculate on what possible defences can avail an accused person before it. However, where in a trial for culpable homicide, the evidence suggests a line of defence, it is the duty of the trial court to consider and deal with that defence, “whether or not the accused or his counsel expressly raised the defence by the legal terminology ascribed to it by lawyers.” In the instant case, the learned trial judge did the necessary and the needful and cannot be faulted thereon. I accordingly resolve this second issue against the Appellant.
Issue No.3
This issue is concerned with whether the trial court can safely convict on the evidence of PW3, PW4 and PW7 who are labelled as witnesses with ulterior motives or purposes of their own to serve. Three prosecution witnesses, PW3, Umaru S. Fawa Torankawa, father of Sa’adatu the deceased, PW4, Kulu Isa, elder sister of the deceased and PW7, Kulu Abdullahi, former wife of the Appellant were singled out among the seven prosecution witnesses. The learned counsel for the Appellant contended that the pieces of evidence given by these three prosecution witnesses are tainted with malice, vendetta and revenge, thus, they are to be regarded as witnesses who have their own purposes to serve. It was submitted that even though in criminal trials, the mere fact that a witness is related to either the victim of the offence or the accused person does not affect the probative value of the evidence so adduced; nevertheless, when the evidence of a witness is tainted with malice and bias, the proper thing for the trial court to do is to regard such a witness as tainted witness and approach the evidence adduced with great caution and should not readily convict upon it without corroboration. Reliance on the point being made was placed by the learned counsel for the Appellant on David Omotola & 4 Ors. V. The State (2009) 3 SCNJ 135; Azeez v. The State (2008) All FWLR (Pt.424) 1423 and Nwaemereji v. The State (1997) 4 NWLR (Pt.497) 63. It was further submitted that the failure by the learned trial judge to warn himself with regards the evidence adduced by PW3, PW4 and PW7 amounted to miscarriage of justice. We were also urged to resolve this issue in favour of the Appellant.
Learned counsel for the Respondent countered on this third issue, that there is nothing in the record of appeal in the evidence of PW3, PW4 and PW7 and even under cross examination, to suggest that they have their own purpose to serve. Citing the case of Yahaya v. The State (2005) 1 NCC 12, it was submitted that evidence of blood relations can be received in evidence and all that is required is for the trial court to warn itself and ascertain the veracity of their testimonies and where there is a failure of warning of the danger in the reception of evidence adduced by such witnesses, such a failure does not ipso facto affect conviction based thereon.
Learned counsel for the Respondent observed that the learned trial judge cited the case of Yahaya (supra) which is indicative that consideration has been given to the need to treat the evidence of PW3, PW4 and PW7 with caution. Finally, it was contended that in the absence of anything which is derogatory or detrimental under the law regarding the evidence adduced by these three prosecution witnesses, then the trial court was right when it ascribed necessary probative value thereto. Reference was made to Adeoye v. The State (1997) 4 NWLR (Pt.499) 307/313. We were urged to resolve this issue in favour of the Respondent.
I do not intend to belabour the point in contention on this issue as argued by the learned counsel for the parties herein. On this score, the learned trial judge gave adequate consideration thereto and quoted Yahaya v. The State (supra) extensively. The law is settled that the mere fact that a witness or witnesses are relations of the victim of an offence, does not render “their evidence in court to be tainted perse.” Hence, relationship by blood to a victim of crime without more cannot transform to a disqualification from being a prosecution witness. The relationship by blood without more cannot make or turn the witness into a tainted or biased witness where he is not shown to have been an accomplice in the commission of the offence or to have any interest or purpose of his or her own to serve as such a witness. In the instant case, PW3 and PW4 though blood relations of the deceased and PW7 being a former wife of the Appellant, were in no way tainted or biased witnesses, nor were they accomplices to the commission of the crime of culpable homicide with which the Appellant was charged. See Oguonzee v. The State (1998) 5 NWLR (Pt.551) 521; Ishola v. The State (1978) 9- 10 SC. 81; Ben v. The State (2006) 16 NWLR (Pt.1006) 582; Paul Onyia v. The State (2006) 11 NWLR (Pt.991) 267.
Without much ado, this issue is also resolved against the Appellant.
In the instant case, the learned trial judge accepted the case presented by the Respondent against the Appellant. This was done after an exhaustive assessment and consideration of the evidence adduced before him. I find no earthly justification to quarrel with his findings thereon or tamper therewith. It is trite that before an appeal can succeed on a ground of fact, the Appellant must show that on the totality of evidence adduced by the Respondent against him, the verdict returned is unreasonable or could not be supported having regard to such evidence. See The Queen v. Imodu (1961) All NLR 13. I am of the humble viewpoint that the Appellant herein has not been able to satisfy these conditions or persuade me otherwise.
Basically, the function of an appellate court is not to review or evaluate afresh, the evidence adduced before the trial court in order to substitute its own view for that of the trial court. It’s avowed duty is to uphold the decision reached thereon, unless there is fundamental error in the trial and of such major character as would amount to gross miscarriage of justice. See Patrick Efe & Ors. v. The State (1976) 11 SC 75. I find no such fundamental error of such a major character to warrant my interfering with the trial court’s decision in this appeal. Rather, I find the assessment by the trial court of the evidence adduced before it by the Respondent and the defence of the Appellant in this case to be rational, reasonable and very fair. That the inconsistency or contradiction referred to by the learned counsel for the Appellant is also not fundamental and does not affect an essential element of the offence involved in this appeal.
Hence, I agree with the finding of the learned trial judge and I am satisfied that the charge against the Appellant has been proved beyond reasonable doubt, as the circumstantial evidence adduced by the Respondent was sufficient to establish the guilt of the Appellant. Let me state that this appeal, for me has proved difficult. It gave me some anxious and turbulent moments. Howbeit, on a calm view and dispassionate consideration of the case in its entirety, I have no hesitation whatsoever in coming to the conclusion reached herein and thereon. In the depth and loneliness of her grave under the culvert at Janzomo junction along Kajiji-Shagari road, the body of Sa’adatu feels no pain. However, her soul cries out loudly and clearly to the high heavens for justice and that is exactly what this appeal portends.
Justice entails that the guilty person should be convicted, that if truth must be known and that justice should be manifestly seen having been done. Justice will cease to be justice, if it is considered from the vantage point of the accused person. Justice first and foremost must also percolate, permeate and pervade to the side of the victim, the person who was wronged and in the instant case, Sa’adatu whose life was snuffed out like a candle in the wind, just like that.
In the light of the foregoing, none of the issues raised and adopted for resolution in this appeal, is resolvable in favour of the Appellant. All the issues are accordingly resolved in favour of the Respondent. Having resolved the issues argued against the Appellant, I would dismiss the appeal for the reasons and grounds stated in this judgment and will not disturb the verdict of the trial court.
The appeal is accordingly dismissed. The judgment, conviction and sentence of the High Court of Sokoto State, delivered on 29th June, 2007 are hereby affirmed by me.
MUSA DATTIJO MUHAMMAD, J.C.A.: I have had a preview of the lead judgment of my learned brother Oredola, JCA, whose reasonings and conclusion I entirely endorse. The appeal is essentially a complaint against the conviction of the Appellant by the court below in the absence of any direct evidence linking the Appellant with the death of his wife. Undoubtedly the evidence available to the trial court is exceedingly circumstantial. I repeat here, purely for the sake of emphasis, that it is not the law that conviction of the Appellant cannot be based on circumstantial evidence. Indeed where it is cogent and unequivocal, circumstantial evidence provides the sustainable basis of conviction. My Lord has adroitly taken us through the facts and painstakingly marshaled the circumstantial evidence on the basis of which Appellant’s conviction must endure. The circumstantial evidence led by the respondent herein being complete, cogent and unequivocal warrants the irresistible conclusion that it was Appellant who killed his wife Sa’adatu and more so when no contrary explanation was given by the Appellant. See Peter Igho v The State (1978) 3 SC 87, Aiguoneghian v the State (2004) 3 NWLR (Pt 860) 367 at 414 and Nwaeze v the State (1996) 2 NWLR (Pt 428) 1.
For this and more so the fuller reasons advanced in the lead judgment I find no merit in the Appeal. I dismiss same and affirm the decision of the court below.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, MASSOUD ABDULARAHMAN OREDOLA, JCA. I agree that the findings and conclusions by the learned trial judge are unassailable and there is no justifiable reason for interfering with his findings.
For the reasons given and conclusion reached in the lead judgment, which I adopt as mine, I also find no merit in this appeal and it is accordingly hereby dismissed.
The decision of the Sokoto State High Court convicting and sentencing the Appellant in Suit No. SS/6C/2000 is hereby affirmed.
Appearances
A. A. Owolabi Esq.For Appellant
AND
Mohammed Lawal Abubakar, Solicitor-General, Sokoto State (with Buhari Ahmed D.P.P. Sokoto State and H. J. Jared., Principal State Counsel Ministry of Justice, Sokoto State),For Respondent
