YAKUBU v. KANO STATE
(2022)LCN/16631(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, January 14, 2022
CA/KN/459/C/2019
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
UMAR YAKUBU APPELANT(S)
And
KANO STATE RESPONDENT(S)
RATIO
THE BURDEN OF PROOF IN CRIMINAL MATTERS
Now, it is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it. Where the commission of crime by a party is in issue in any proceedings, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal.
THE MEANING OF PROOF BEYOND REASONABLE DOUBT
It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt or proof of a mathematical certainty. This is due to the aphorism that absolute certainty is impossible in any human venture, inclusive of ministration of justice. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt –Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Philip Vs State(2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1, Ibrahim Vs Commissioner of Police (2020) 15 NWLR (Pt 1746) 122, Fekolomoh Vs State (2021) 6 NWLR (Pt 1773) 461. PER ABIRU, J.C.A.
FACTORS TO BE PROVED TO SECURE A CONVICTION FOR CULPABLE HOMICIDE PUNISHABLE WITH DEATH
It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence.
The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Orisadipe Vs State (2019) 13 NWLR (Pt 1688) 24, Akinsuwa Vs State (2019) 13 NWLR (Pt 1688) 161, Abbas Vs People of Lagos State (2019) 16 NWLR (Pt 1698) 213, Okere Vs Inspector General of Police (2021) 5 NWLR (Pt 1770) 537, Njoku Vs State (2021) 6 NWLR (Pt 1771) 157. PER ABIRU, J.C.A.
THE POSITION OF LAW ON ESTABLISHING THE GUILT OF AN ACCUSED PERSON
It is settled law that in criminal trials, the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient –Philip Vs State (2019) 13 NWLR (Pt 1690) 209, Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1. PER ABIRU, J.C.A.
WHETHER OR NOT THE FACT THAT AN ACCUSED PERSON RETRACTED HIS CONFESSIONAL STATEMENT RENDERS THE STATEMENT INADMISSBLE
It is trite law that the fact of an accused person resiling from his confessional statement does not render the confessional statement inadmissible and that the obligation of a trial Court in such circumstances is to consider the retracted statement along with other evidence led at the trial and once the Court is satisfied as to its truth, it can safely convict on it – Olude Vs State (2018) 10 NWLR (Pt 1627) 292, Amos Vs State (2019) 1 NWLR (Pt 1653) 206, Dondos Vs State (2021) 9 NWLR (Pt 1780) 24, Hassan Vs State (2021) 17 NWLR (Pt 1804) 45.
Where a confession is proved to be positive and truthful, it is sufficient, without more, to ground a conviction and it is immaterial that the accused person later resiled from making the statement – Kushimo Vs State (2021) 16 NWLR (Pt 1801) 147, Aliyu Vs State (2021) 17 NWLR (Pt 1805) 197, Olayiwola Vs State (2021) 17 NWLR (Pt 1806) 579. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State delivered in Suit No K/117C/2013 by Honorable Justice A. R. D. Mohammed on the 30th of June, 2014.
The Appellant was charged with culpable homicide punishable with death under Section 221 (b) of the Penal Code of Kano State. The Appellant was alleged to have caused the death of one Isah Abdu on the 18th of May, 2013 at Walagigi Village in Warawa Local Government Area of Kano State by stabbing him with a knife with the knowledge that death would be the probable consequence of his act. The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial. In the course of the trial, the Respondent called five witnesses and tendered exhibits in proof of its case against the Appellant and the Appellant testified as the first defence witness, and called another person as the second defence witness in his defence. At the conclusion of trial and after the rendering of final written addresses by Counsel to the parties, the lower Court found the Appellant guilty as charged and sentenced him to death by hanging.
The Appellant was dissatisfied with the judgment and, sequel to an order of extension of time to appeal obtained on the 13th of February, 2019, he caused a notice of appeal dated the 15th of February, 2019, and containing two grounds of appeal, to be filed against it. The records of appeal were compiled and transmitted to this Court on the 1st of August, 2019 and they were deemed properly compiled and transmitted on the 3rd of June 2020. In arguing the appeal, Counsel to the Appellant presented a brief of arguments dated and filed on the 22nd of June, 2020. In response, Counsel to the Respondent filed a brief of arguments dated the 10th of December, 2020 on the same day and the brief of arguments was deemed properly filed and served on the 1st of November, 2021. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions on the appeal.
Counsel to the Appellant distilled two issues for determination in the appeal and these were:
i. Whether the Respondent proved the case of culpable homicide punishable with death against the Appellant beyond reasonable doubt.
ii. Whether the trial Court properly evaluated the evidence adduced before it.
In arguing the first issue for determination, Counsel stated that it is trite law that before a case is said to be proved beyond reasonable doubt against a person, there must be cogent and compelling evidence proving essential ingredients of the offence charged and a case against an accused person cannot be said to have been proved if there is doubtable evidence in the case of the prosecution and he referred to the case of Bakare Vs State (1987) NSCC 26. Counsel referred to the provision of Section 222 of the Penal Code and he referred to the cases of Dada Vs State (2018) All FWLR (Pt 920) 81 and Musa Vs State (2009) All FWLR (Pt 492) 1020 in reiterating the three ingredients of the offence of culpable homicide punishable with death.
Counsel stated there was a material contradiction in the case presented by the Respondent against the Appellant before the lower Court on the nature of weapon allegedly used by the Appellant on the deceased and that while the fourth prosecution witness testified that it was a cutlass, the fifth prosecution gave evidence that it was a knife. Counsel stated that evidence on the nature of weapon used to inflict injuries on the deceased is material and that any contradiction in the testimonies of prosecution witnesses thereto was a material contradiction. Counsel stated that where there are two contradictory evidence before a Court, the Court has two choices, either to reject the whole testimony or decide to pick one version of the evidence, and that where the Court decides to chose one version, it must make a specific finding on the point and give reasons for rejecting one version and accepting the other and it cannot be based on speculation and he referred to the case of Amaechi Vs State (2016) LPELR-40977(CA).
Counsel stated that lower Court did not make any specific finding in accepting the version that the deceased was attacked with a knife, instead of with a cutlass, but merely relied on the contents of the confessional statements wherein the Appellant said that he attacked the deceased with a knife in coming to the conclusion and that this was not sufficient. Counsel referred to the case of Nwachukwu Vs The State (2000) All FWLR (Pt 28) 2195 in asserting that the responsibility was on the Respondent to explain the contradiction in the evidence of the witnesses and stated that the Respondent failed to give any such explanation. Counsel stated that the Respondent cannot be said to have proved the case against the Appellant beyond reasonable doubt and that, in the circumstances, the reliance placed by the lower Court on the contents of the confessional statements of the Appellant in resolving the contradiction occasioned a miscarriage of justice. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.
On the second issue for determination, Counsel stated that one of the qualities of a good judgment is that the Court should properly evaluate the evidence adduced before it and the judgment must reflect the facts adduced before the Court and the Court must be just and fair in its adjudication and consideration of the evidence led in arriving at its conclusion and he referred to the case of Augustine Vs The State (2013) LPELR-20880(CA). Counsel stated that the lower Court failed to properly evaluate the evidence of the second prosecution witness and that while the second prosecution witness testified that he was not present when the deceased was being attacked by the Appellant and that he arrived at the scene to see the Appellant holding a cutlass and a stick, the lower Court, in its evaluation of evidence, treated the witness as one of those that witnessed the Appellant attacking the deceased. Counsel stated that this was a clear improper evaluation of the evidence of the witness and that the law is that where there is an improper evaluation of evidence and the finding arrived at is perverse, the judgment cannot be allowed to stand and he referred to the case of Prince Vs Access Bank Nig Plc (2017) LPELR-41981(CA). Counsel urged the Court to resolve the second issue for determination in favour of the Appellant.
Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court and enter an order of discharge and acquittal in favour of the Appellant.
In his unnecessarily verbose and voluminous response spanning over forty pages, Counsel to the Respondent distilled one issue for determination in the appeal and this was:
Whether the lower Court was right when it held that the Respondent proved its case against the Appellant beyond reasonable doubt for the offence of culpable homicide punishable with death?
In arguing the issue for determination, Counsel reiterated the three recognized modes by which the Respondent could prove its case against the Appellant as well as the three ingredients of the offence of culpable homicide punishable with death. Counsel thereafter traversed through the evidence led by the Respondent, both oral and documentary, in proof of the three ingredients of the offence and noted that the bulk of the evidence led was unchallenged and uncontradicted by the Appellant and he referred to several case law authorities and reproduced portions of the findings made by the lower Court on evidence. Counsel stated that the conclusion reached by the lower Court that the Respondent led credible and cogent evidence to prove the offence charged against the Appellant beyond reasonable doubt was clearly and demonstrably supported the totality of the evidence in the matter.
Counsel stated that, contrary to the assertion of Counsel to the Appellant, there was no contradiction in the testimonies of the fourth and fifth prosecution witnesses on the nature of the weapon used by the Appellant to attack the deceased and that whatever difference that there was between their testimonies on the point was a mere variance or discrepancy which was expected and it had no effect on the case the Respondent and he referred to the case of Eze Vs The State (2018) 2 SCNJ 112. Counsel reproduced at length the evidence of the fourth prosecution witness and the evidence of the fifth prosecution witness and stated that no contradiction existed therein and that the weapon used by the Appellant, a long knife, was tendered in evidence as Exhibit E. Counsel stated that the issue of the alleged contradiction was raised in the lower Court and that the lower Court found that no such contradiction existed and that even if there was such a doubt, it was cleared by the Appellant when he admitted that he used a knife to attack the deceased and by the tendering of the knife as Exhibit E.
Counsel stated that the contention of the Counsel to the Appellant that the lower Court failed to properly evaluate the evidence of the second prosecution witness was untenable and incorrect and that the lower Court properly evaluated the evidence of the witness. Counsel reproduced the portion of the judgment where the lower Court considered the evidence of the witness and the inferences and conclusions made therefrom and stated that every determination of a Court consists of a finding of facts and that it is from these facts and the inference drawn from them that a Court comes to its ultimate conclusion and he referred to the cases of Phillips Vs EOC & Ind. Co Ltd (2013) 1 NWLR (Pt 1336) 618 and Ibhafidon Vs Igbeinosun (2001) 8 NWLR (Pt 126) 229. Counsel stated that the findings made by the lower Court from the evidence of the second prosecution witness demonstrated the process of reasoning as enjoined by the Supreme Court in the case of Sagay Vs Sajere (2000) 6 NWLR (Pt 661) 360. Counsel urged to resolve the issue for determination in favour of the Respondent.
Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.
Reading through the records of appeal, particularly the charge against the Appellant, the notes of evidence led by the parties, both oral and documentary, the written addresses of Counsel before the lower Court, the judgment of the lower Court and the notice of appeal, as well as the arguments of Counsel in their respective briefs of arguments in this appeal, this Court agrees with Counsel to the Respondent that there is only one issue for determination in the appeal. This is:
Whether, on the facts and circumstances of this case, the lower Court was correct when it found that the Respondent led cogent and credible evidence to prove the offence of culpable homicide punishable with death beyond reasonable doubt to warrant the conviction and sentence of the Appellant.
Now, it is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it. Where the commission of crime by a party is in issue in any proceedings, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal.
It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt or proof of a mathematical certainty. This is due to the aphorism that absolute certainty is impossible in any human venture, inclusive of ministration of justice. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt –Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Philip Vs State(2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1, Ibrahim Vs Commissioner of Police (2020) 15 NWLR (Pt 1746) 122, Fekolomoh Vs State (2021) 6 NWLR (Pt 1773) 461.
The Appellant was charged with culpable homicide punishable with death. It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence.
The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Orisadipe Vs State (2019) 13 NWLR (Pt 1688) 24, Akinsuwa Vs State (2019) 13 NWLR (Pt 1688) 161, Abbas Vs People of Lagos State (2019) 16 NWLR (Pt 1698) 213, Okere Vs Inspector General of Police (2021) 5 NWLR (Pt 1770) 537, Njoku Vs State (2021) 6 NWLR (Pt 1771) 157.
In the judgment appealed against, the lower Court traversed through the evidence of the prosecution witnesses and found that there was credible, unchallenged and uncontested evidence led to prove that the person referred to in the charge against the Appellant as the deceased, Isah Abdu, was dead and that the Respondent thus satisfied the first ingredient of the offence charged. The Appellant made no complaint against this finding in this appeal and he is deemed to have accepted the finding as conclusive. The finding is binding on the parties and on this Court and cannot be tampered with by the Court –Statoil (Nig) Ltd Vs Inducon (Nig) Ltd (2021) 1 NWLR (Pt 1774) 1, Robert Vs Inspector General of Police (2021) 7 NWLR (Pt 1775) 268, Pillars (Nig) Ltd Vs Desbordes (2021) 12 NWLR (Pt 1789) 122.
On the second ingredient of the offence of whether it was the act of the Appellant that caused the death of the deceased, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant – Udosen Vs State (2007) 4 NWLR (Pt 1023) 125, Oche Vs State (2007) 5 NWLR (Pt 1027) 214, Ekpoisong Vs State (2009) 1 NWLR (Pt 1122) 354, Iliyasu Vs State(2014) 15 NWLR (Pt 1430) 245. This point was made by the Supreme Court in Oforlete Vs State (2000) 12 NWLR (Pt 631) 415 thus:
“In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence”
The Respondent tendered a medical report as Exhibit C and led evidence through the witnesses on the nature of the injuries suffered by the deceased and it tendered photographs of corpse of the deceased as Exhibits B1, B2 and B3. The lower Court evaluated the totality of the evidence led on the death of the deceased and noted that the deceased suffered a deep cut on the chest which almost ripped out his rib cage and deep cut on the upper arm which also almost ripped out the arm as well as stab wound which split the lower limb and it found that the deceased died as a result of these injuries. This finding of fact on the cause of the death of the deceased has also not been contested on this appeal and it is as well binding and conclusive.
This takes us to the second limb of the second ingredient of the offence of culpable homicide punishable with death; whether it was the act of the Appellant that caused the death of the deceased. It is settled law that in criminal trials, the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient –Philip Vs State (2019) 13 NWLR (Pt 1690) 209, Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.
It is obvious from the records of appeal that the Respondent relied on the eye witness accounts of the wife of the deceased and of the brother of the deceased, who testified as the first and second prosecution witnesses respectively, the two confessional statements of the Appellant made at the Divisional Police Station and at the State Criminal Investigation Department and tendered as Exhibits A, A1, D and D1 and the circumstantial evidence of the two Investigating Police Officers, the fourth and the fifth prosecution witnesses in proving the guilt of the Appellant.
In its deliberation in the judgment, the lower Court traversed through the evidence of the first prosecution witness who testified that she and the deceased were sleeping outside their room when the Appellant entered their house, found them and attacked the deceased beating him with a stick and cutlass and that she ran to the house of the second prosecution witness to tell him and the lower Court noted that under cross-examination, the witness stated that the Appellant attacked the deceased with a cutlass/long knife. The lower Court further noted that the testimony of the first prosecution witness was confirmed by the second prosecution witness who gave evidence that he was lying down outside due to the hot weather when the first prosecution witness came running and told him that the deceased was being attacked with a cutlass and that he went to the scene and saw the Appellant standing over the deceased holding a cutlass and a stick while the deceased was on the floor twisting and rolling in the pool of his own blood.
The lower Court found that the evidence of the two witnesses was constant and was not contradicted or controverted by the defence under cross-examination. This finding was not challenged by the Appellant in this appeal. It is settled law that where evidence of a witness is not dented, confronted, challenged, discredited or disparaged under cross-examination, it can be believed and relied upon by a trial Court in making findings – Olude Vs State (2018) LPELR 44070(SC), Lanre Vs State (2018) LPELR 45156(SC), State Vs Oray (2020) 7 NWLR (Pt 1722) 130. In Igwe Vs People of Lagos State (2021) 7 NWLR (Pt 1776) 425, the Supreme Court made the point at 451-452 H-A thus:
“In criminal trials, the defence must challenge all the evidence it wishes to dispute by cross-examination. Where the evidence of a witness is not seriously challenged while he is in the witness box, it is an exercise in futility to seek to negative the testimony at the close of the case or to seek to demolish it on appeal.”
The lower Court also had recourse to the two confessional statements of the Appellant made at the Divisional Police Station and at the State Criminal Investigation Department and the Hausa and English versions of which were tendered as Exhibits A, A1, D and D1. The lower Court reproduced the contents of the two confessional statements, and both of which gave the same account. Exhibit A read in part thus:
“… On the 18/05/2013 at about 1.00hrs I carry my long knife and entered the house of the said Isa Abdu and met him near his room on his mat sitting. I asked him Isa why you use your spirit and cause sickness to my wife Marsiya, what did she do to you? I ask him severally but he did not give me satisfactory answer; only saying nothing will occur between me and him, as I was provoked I first used the stick to beat him, he gripped the stick and intended to find another stick to cause havoc on me. I removed my knife and cut him which caused grievous hurt to him and his brother Sa’idu Abdu came and asked me to leave him. I carry my stick and my knife and went back to my house …”
The contents of the second confessional statement, Exhibit D, were in similar terms. The lower Court noted that the Appellant denied making the two confessional statements and it subjected the contents of the two statements to the six way test for confirming the veracity of a confessional statement as laid down by the Courts. The lower Court juxtaposed the contents of the two confessional statements with the other pieces of evidence led the Respondent on the records and concluded that the confessional statements passed all the tests for their veracity. The Appellant did not again challenge this finding in this appeal. It is trite law that the fact of an accused person resiling from his confessional statement does not render the confessional statement inadmissible and that the obligation of a trial Court in such circumstances is to consider the retracted statement along with other evidence led at the trial and once the Court is satisfied as to its truth, it can safely convict on it – Olude Vs State (2018) 10 NWLR (Pt 1627) 292, Amos Vs State (2019) 1 NWLR (Pt 1653) 206, Dondos Vs State (2021) 9 NWLR (Pt 1780) 24, Hassan Vs State (2021) 17 NWLR (Pt 1804) 45.
Where a confession is proved to be positive and truthful, it is sufficient, without more, to ground a conviction and it is immaterial that the accused person later resiled from making the statement – Kushimo Vs State (2021) 16 NWLR (Pt 1801) 147, Aliyu Vs State (2021) 17 NWLR (Pt 1805) 197, Olayiwola Vs State (2021) 17 NWLR (Pt 1806) 579.
There was also before the lower Court the evidence of the fourth and fifth prosecution witnesses, the Investigating Police Officers at the Divisional Police Station and at the State Criminal Investigation Department respectively. The fourth prosecution witness gave evidence that after recording the confessional statement of the Appellant, he took the Appellant before the Divisional Police Officer and who interviewed the Appellant thoroughly and that the Appellant confessed to cutting the deceased with a cutlass or knife and that the knife which he used was recovered from his room and he confessed that he used that knife to cut the deceased. The fifth prosecution witness testified that in the course of interrogation, the Appellant stated that the deceased killed his mother and his wife with witchcraft and was currently attacking him and his second wife with witchcraft and that he used to see the deceased in his dream and this was why he killed the deceased. It is trite law that an oral admission of guilt carries no less weight than a written statement – Federal Republic of Nigeria Vs Iweka (2013) 3 NWLR (Pt 1341) 25, Matthew Vs State (2018) 6 NWLR (Pt 1616) 561, Aliyu Vs State supra.
The lower Court found, on the strength of the testimonies of the first, second, fourth and fifth prosecution witness and the contents of the confessional statements that the Respondent led credible and cogent evidence to prove beyond reasonable doubt that it was the act of the Appellant that caused the death of the deceased and that Respondent thus established the second ingredient of the offence of culpable homicide punishable with death.
In considering the third ingredient of the offence, that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence, the lower Court deliberated thus:
“In considering the intention and whether the consequence of the accused act is a likely consequence… the Court must take into consideration the weapon used and what part of the body of the deceased was struck and the amount of force used …
In the instant case, the accused struck the deceased with a long knife (dagger), Exhibit E, in 3 areas of his body; in the chest almost ripping out his rib cage, upper arm almost ripping it out and lower limb. A strike with a long knife or dagger with such force that almost ripped open the rib cage and severed almost completely the upper arm and split the lower limb clearly shows that the accused intended to cause death of the deceased. Exhibits B1, B2 & B3 showed the nature of the injuries sustained by the deceased which showed so gruesomely the body of the deceased after the attack. Any reasonable person who views Exhibits B1, B2 & B3 will come to the conclusion that there is no doubt whatsoever that the accused intended to cause the death of the deceased…”
The lower Court again had recourse to the contents of the confessional statements of the Appellant and found that they clearly showed the motive for the attack on the deceased, and that the Appellant admitted that he intentionally went to the house of deceased with the sole aim of killing him and nothing else. The lower Court concluded that the Respondent led credible evidence to prove beyond reasonable doubt that the Appellant inflicted the injuries on the deceased knowingly and with intention to kill the deceased.
The complaint of the Appellant in this appeal is against part of the evaluation of evidence carried out by the lower Court. It is settled law that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Olude Vs State (2018) LPELR 44070(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) LPELR 44343(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Ayinde Vs State (2019) 12 NWLR (Pt 1687) 410, State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289.
This means that an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark of a re-evaluation of the evidence led by the parties where an Appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an Appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377.
The contentions of the Counsel to the Appellant against the evaluation of evidence by the lower Court were predicated on two grounds (i) the existence of a contradiction between evidence of the fourth and fifth prosecution witness on the nature of the weapon used by the Appellant to attack the deceased; and (ii) improper evaluation of the evidence of the second prosecution witness.
The contention of the Counsel of the Appellant on the first ground of the presence of alleged contradiction was raised before the lower Court and the lower Court thoroughly deliberated on it. It stated thus:
“… The Counsel for the accused had stated in his written address that the two IPOS contradicted themselves, while the Divisional IPO, i.e. PW4 said it was a cutlass that was used in stabbing the deceased, the IPO at the State CID, PW5, said it was a knife. He urged the Court to reject the evidence of PW4 & PW5 and accept the evidence of DW2 the father of the accused who testified that Exhibit E was the knife recovered at his son’s house. That this evidence was uncontroverted. He submitted that this created a doubt and should be resolved in favour of the accused.
In resolving this issue whether a cutlass or knife was used in stabbing the deceased, the evidence of PW4 will be reproduced under:
‘… The DPO interviewed him thoroughly and he confessed to cutting the deceased with his cutlass or knife. The knife which he used in cutting the deceased was recovered in his room. He confessed that he used that knife in cutting the deceased. The accused and the exhibits were transferred to the State CID.’
Under cross-examination:
‘Yes I am in a position to tell the type of weapon used by the accused person.’
PW5 in his evidence in chief stated:
‘The accused confessed to the commission of the crime. There were Exhibit of a long knife used in cutting the deceased. … I can identify the knife as it was marked with No 084/2013 and is a long knife. Yes this is the actual knife …’
Under cross-examination he stated:
‘I said he went to the house of the deceased with a knife and a stick. The accused was transferred to the State CID with a knife, no stick. I trust the IPO Warawa Police Division. Yes he stated he transferred the accused with a knife. The accused left with the stick and the knife but on searching his house only knife was recovered not stick.’
The accused himself expressed stated in Exhibits A1, A2, D1 & D2 that he used a knife in striking and stabbing the deceased. I find no contradiction in the evidence of PW4 and PW5 on the weapon used by the accused in stabbing the deceased. Exhibit E is a long knife or dagger which PW4 can easily mistake it as a cutlass. The knife was shown to the accused and he admitted in Exhibits A1, A2, D1 & D2 that it was the weapon he used in stabbing the deceased. …
Therefore the argument of the defence Counsel on the knife is completely not borne out by the evidence before the Court. There was no contradiction between the evidence of PW4 and PW5 that will cast a doubt which should be resolved in favour of the accused. Even if there was such a doubt the accused cleared it by admitting he used a knife not a cutlass and by identifying Exhibit E as the knife he used in stabbing the deceased and I so hold”
The Appellant did not appeal against this specific finding of the lower Court on the alleged contradiction between evidence of the fourth and fifth prosecution witness on the nature of the weapon used by the Appellant to attack the deceased. Neither of the two grounds of appeal was directed at this finding of fact made by the lower Court. It is elementary that where an Appellant desires an appellate Court to set aside a specific finding of fact made by a trial Court, it must frontally complain against the finding and show why it was perverse. It is not enough for an Appellant to go before an appellate Court to repeat the case he presented before the lower Court with the hope that the appellate Court will come to different decision; he must attack the specific finding of fact made by the trial Court from the evidence led – Uor Vs Loko (1988) 2 NWLR (Pt 77) 430 at 441, Onyejekwe Vs Onyejekwe (1999) 3 NWLR (Pt 596) 482 at 500-501, Jov Vs Dom (1999) 9 NWLR (Pt 620) 538 at 551, Awudu Vs Daniel (2005) 2 NWLR (Pt 909) 199 at 231, Ojeleye Vs The Registered Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2008) 15 NWLR (Pt 1111) 520 at 543.
Additionally, the contradiction alleged by the Counsel to the Appellant, even if it existed, was an inconsequential disparity on a peripheral issue, giving the admissions made by the Appellant, both orally in the course of interrogation and in his confessional statements, that he attacked and inflicted the lethal injuries on the deceased and on the weapon he used in the attack as well as the tendering of the said weapon before the lower Court as Exhibit E. It is trite law that it is not every discrepancy or contradiction or any form of inconsistency that will affect the substance of a criminal charge which has been proved with credible and unchallenged evidence. The contradiction or inconsistency which will upturn a decision must be of such magnitude that it would go to the root of the evidence of a witness and must be fatal to the case of the party relying on it.
In other words, the law maintains that only grave and material contradiction which goes to the root of the case can cause the evidence to tumble. Outside this, mere slant in the evidence of witnesses cannot be termed as contradictions – Mamuda Vs State (2019) LPELR-46343(SC), State Vs Musa (2019) LPELR-47541(SC), Ayinde Vs State (2019) LPELR-47835(SC), Wowem Vs State (2021) LPELR-53384(SC), Okere Vs Inspector General of Police (2021) LPELR-53709(SC). In Akindipe Vs State (2012) 16 NWLR (Pt 1325) 94, the Supreme Court explained the point thus:
“Witnesses are human beings and perception and appreciation of what is seen and heard must necessarily vary from one person to another. It is out of touch with reality to expect one hundred percent accuracy in the recollection of each of two people who observed the same incident simultaneously even a few minutes thereafter.
Though there may be some elements of contradictions and inconsistencies in evidence of witnesses at a trial, only those contradictions and inconsistencies shown by the appellant to be substantial and fundamental to the main issue before the Court can lead to a reversal of the judgment appealed against. Minor discrepancy or disparity between a previous written statement and subsequent testimony in Court will not destroy the credibility of the witness…”
In Ukpong Vs State (2019) LPELR-46427(SC), the Supreme Court reiterated thus:
“Above all, testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses…
This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth… In any event, Courts have even taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy …
In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly, in a capital offence, they must raise doubts as to the guilt of the accused person …”
The contention of Counsel to the Appellant on the alleged contradiction is totally baseless and downright frivolous.
The second contention of Counsel to the Appellant on the alleged improper evaluation of the evidence of the second prosecution witness, and which, according to Counsel, led to the lower Court attaching probative value on it as an eye witness account, shows lack of proper understanding of what evaluation of evidence entails. The evaluation of evidence involves consideration of each set of evidence given by the parties, the determination of the credibility of respective witnesses and ascription of probative value to the evidence evaluated. It entails a consideration of the totality of the evidence including documents tendered by the parties – Maiyaki Vs State (2008) 15 NWLR (Pt 1109) 173, Anekwe Vs Nweke (2014) 9 NWLR (Pt 1412) 393, Brown Vs State (2017) 4 NWLR (Pt 1556) 341.
In other words, in evaluating the evidence led by a party, a trial Court does not segment and compartmentalize the pieces of evidence led by the party and consider them in isolation from each other in single units. It is elementary that the contents of the notes of evidence, like the content of any document, must be read and considered in whole, and not in parts in isolation, to get a full picture of the story contained therein – Ogah Vs Ikpeazu (2017) 17 NWLR (Pt 1594) 299, Peoples Democratic Party Vs Oranezi (2018) 7 NWLR (Pt 1618) 245, Ukoh Vs Ukoh (2021) 7 NWLR (Pt 1775) 303. Perhaps if Counsel to the Appellant was aware of this fact, he would have seen that even if this Court agrees with him and jettisons the evidence of the second prosecution witness, it would not make a dent on the judgment of the lower Court. There were more credible and stronger pieces of evidence led by the Respondent to sustain the judgment. There was nothing to this contention of the Counsel to the Appellant on the improper evaluation of the evidence of the second prosecution witness.
What is clear from the above is that the Appellant did not make out any case to necessitate this Court interfering with the findings made and the conclusions reached by the lower Court. By Section 168(1) of the Evidence Act, a judgment appealed against enjoys presumption of regularity which is rebuttable. Once the Appellant fails to satisfactorily establish the error in the judgment appealed against, the Respondent is entitled to a judgment affirming the judgment –Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92. In Oyedele Vs State (2019) 6 NWLR (Pt 1667) 74, the Supreme Court made the point thus:
‘There is a presumption that, on facts, the decision of a trial Court is right and that for the appellant to succeed, he must displace the findings of fact against him. Once an appellate Court finds nothing perverse or capable of occasioning miscarriage of justice to the appellant in the judgment of the trial Court on facts, it has nothing else to do than to affirm the judgment.’
This appeal is thus without merit and it is hereby dismissed. The judgment of the High Court of Kano State delivered in Case No K/117C/2014 by Honorable Justice A. R. D. Mohammed on the 30th of June, 2017, together with the conviction of and sentence passed on the Appellant therein, are affirmed. These shall be the orders of this Court.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA and I am in complete agreement with the reasoning and conclusion reached therein. The appeal is without merit and it is accordingly dismissed. I abide by all other consequential orders as contained in the lead judgment.
USMAN ALHAJI MUSALE, J.C.A.: My learned brother Habeeb Adewale Olumuyiwa Abiru, JCA obliged me the draft of the leading judgment delivered by him just now. I adopt the reasoning and conclusions reached as mine and find that the appeal is unmeritorious. The appeal is equally dismissed by me. The conviction and sentence of the Appellant are affirmed.
Appearances:
Yau A. Umar For Appellant(s)
Dalhatu Yusuf Dada, Director, MoJ, Kano State For Respondent(s)