YUSUF v. KANO STATE
(2021)LCN/15914(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Monday, May 10, 2021
CA/KN/49/C/2019
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
LAWAL YUSUF APPELANT(S)
And
KANO STATE RESPONDENT(S)
RATIO:
THE BEST EVIDENCE AVAILABLE MUST ALWAYS BE PRODUCED AND USED BY THE COURT
This is premised on the position of the law that the best evidence available must always be produced and used by the Courts so that the rights of litigants are correctly decided.
The conditions are mandatory and cannot be waived, not even by consent of the parties, and once any of them is absent, the evidence to be relied on would be inadmissible. See Nahman Vs Odutola supra, Shanu Vs Afribank (Nig) Plc (2002) 17 NWLR (Pt 795) 185, Eghobamien Vs Federal Mortgage Bank of Nigeria supra, Eze Vs Ene supra, Fadoul Vs Igbinevwo (2018) LPELR – 45232(CA). The power under Sections 39 and 46 of the Evidence Act must at all times be exercised with great caution, thus it is required that, for instance, the death or incapability of the absent witness to give evidence must be proved strictly and the onus of proving that a witness is dead or cannot be found is on the party who wishes to rely on the evidence. See Eze Vs Ene supra. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
HE WHO MAKES AN ASSERTION SHOULD ESTABLISH IT BY CREDIBLE EVIDENCE
The rule that requires that an assertion be proved strictly does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish such an assertion. What is required is that the person making the assertion should establish it by credible evidence of such a character as would suggest that the assertion is true, otherwise the general law of evidence as to proof by preponderance or weight, usual in civil cases, operates. See Oshinjinrin & Ors Vs Alhaji Elias & Ors (1970) 1 All NLR 158 at 161, Arabambi Vs Advance Beverages Industries Ltd (2005) 19 NWLR (Pt 959) 1, Vinz International Nigeria Ltd Vs Morohundiya (2009) 11 NWLR (Pt 1153) 562, Ajigbotosho Vs Reynolds Construction Co Ltd (2018) LPELR 44774(SC). HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
AN UNCHALLENGED EVIDENCE OF A PARTY CAN BE BELIEVED AND RELIED UPON BY A TRIAL COURT
It is settled that evidence of a party that is not challenged or contradicted can be believed and relied upon by a trial Court in making findings. See Nigeria Construction Ltd Vs Okugbeni (1987) 4 NWLR (Pt 67) 89, Ikuomola Vs Oniwaya (1990) 4 NWLR (Pt 146) 617, Lagos State Development & Property Corporation Vs Nigerian Land & Sea Foods Ltd (1992) 5 NWLR (Pt 244) 653, Eyo Vs Onuoha (2011) 3 SCNJ 302. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
THE UNCHALLENGED OR UN-CONTRADICTED ORAL EVIDENCE ASSERTIONS IN AN AFFIDAVIT EVIDENCE ARE CONGENT AND RELEVANT WHICH CONSTITUTES SUFFICIENT CREDIBLE EVIDENCE
It is good law that unchallenged or un-contradicted oral evidence is admissible to establish the existence of a fact on which it is based and where it is cogent and relevant, there is no need for documentary evidence as the oral evidence has properly covered the entire evidential scene. See Ajao Vs Ashiru (1973) 11 SC 23, Odulaja Vs Haddad (1973) 11 SC 357, Okupe Vs Ifemembi (1974) 3 SC 97, Alalade Vs ICAN (1975) 4 SC 59, Inakoju Vs Adeleke (2007) 4 NWLR (Pt 1025) 423. The unchallenged assertions in the affidavit evidence of the Respondent were cogent and relevant and constituted sufficient credible evidence upon which the lower Court could rely to find that the Respondent satisfied the conditions for the adoption of the evidence given in previous proceedings, without the need for documentary evidence. The testimonies of the three prosecution witnesses in the earlier proceedings were thus properly adopted by the lower Court. The first issue for determination is resolved in favour of the Respondent. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
UNDERSTANDING THE JURISDICTION OF A COURT BY DEFINING THE PROCEDURAL AND SUBSTANTIVE JURIDICTION
It is essential to understand that the jurisdiction of a Court is divided into two – procedural jurisdiction and substantive jurisdiction. There is a whole world of difference between procedural jurisdiction and the substantive jurisdiction of a Court to hear a matter and a matter of procedural jurisdiction does not qualify as “a jurisdictional challenge to the competence of the Court” that can be raised at anytime. Procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or Tribunal in going into matters before it are matters of procedure regulated by procedural rules. A plaintiff who has commenced an action which on the face of it is not incompetent is deemed to have invoked the presumed jurisdiction of the Court. A matter that impugns the presumed competence of the action should be raised by the opponent. See Gafari Vs Johnson (1986) 5 NWLR (Pt 39) 66 at 71, Atolagbe Vs Awuni (1997) 9 N WLR (Pt 522) 536, Mobil Producing Nigeria Unlimited Vs Lagos State Environment Protection Agency (2002) 18 NWLR (Pt. 798) 1, Nigeria National Petroleum Corporation Vs Idi Zaria (2014) LPELR 22362(CA). HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
THE DIFFERENCE BETWEEN SUBSTANTIVE JURISDICTION AND PROCEDURAL JURISDICTION
It is matters of substantive jurisdiction that can be raised at anytime and either viva voce or by motion and by the Court itself suo motu and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural jurisdiction. See Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523) 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udoh Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
THE QUESTION OF LOCUS STANDI MUST BE RAISED IN ACCORDANCE WITH THE PROCEDURAL RULES OF THE COURT CONCERNED
The Supreme Court and this Court have held that question of locus standi is not a matter that can be raised viva voce or by motion and/or by the Court itself suo motu; it is one that must be raised in accordance with the procedural rules of the Court concerned. See Dada Vs Ogunsanya (1992) NWLR (Pt 232) 754, Disu Vs Ajilowura (2006) 14 NWLR (Pt 1000) 783, Tabiowo Vs Disu (2008) 7 NWLR (Pt 1087) 533, Bakare Vs Ajose-Adeogun (2014) LPELR 25024(SC). It is a matter of procedural jurisdiction and it is one that should be raised first in the trial Court and it cannot be raised as a matter of right in the appellate Court for the first time. See Adisa Vs Adisa (2015) LPELR 41660(CA), Eze Vs Attorney General, Rivers State (2018) LPELR 45621(CA). HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
THE BURDEN OF PROOF OF THE GUILT OF AN ACCUSED PERSON DOES NOT MEAN BEYOND EVERY SHADOW OF DOUBT
It must however be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable. In other words, proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof of a mathematical certainty. Once 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. See Isah Vs State (2018) 8 NWLR (Pt 1621) 346, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Phillip 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. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
THE WAYS IN WHICH THE GUILT OF AN ACCUSED PERSON IN A CRIMINAL TRIAL CAN BE ESTABLISHED
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. See 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. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
THE PRINCIPLE OF LAW WITH REGARDS TO AN EXTRA JUDICIAL STATEMENT MADE BY AN ACCUSED
The present state of the law with regards to an accused defendant vis-à-vis his extra judicial statement is that where an accused defendant does not challenge the making of his extra judicial statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the extra judicial statement upheld unless a satisfactory explanation of the inconsistency is proffered. See Gabriel Vs State (1989) 5 NWLR (Pt 122) 457, Ogoala Vs State (1991) 2 NWLR (Pt 175) 509, Egboghonome Vs State (1993) 7 NWLR (Pt 306) 383, Oladotun Vs State (2010) 15 NWLR (Pt 1217) 490, Federal Republic of Nigeria Vs Iweka (2013) 3 NWLR (Pt 1341) 285, Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360. The Appellant did not proffer any explanation for the inconsistency between his oral evidence and the above reproduced contents of the confessional statement. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
THE ESSENCE AND DEFINITION OF CORROBORATIVE EVIDENCE
Now, corroborative evidence has been defined as evidence given by an independent witness which shows or tends to show that the fact that the accused committed the crime is true; not merely that the crime was committed, but that it was committed by the accused. The corroboration needs not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection to the crime. See Omisade Vs The Queen (1964) NSCC 170, Durugo Vs State (1992) 7 NWLR (Pt.255) 525 at 541, Ogugu Vs State (1994) 9 NWLR (Pt 366) 1, Edhigere Vs The State (1996) 8 NWLR (Pt. 464) 1 at 8, Mohammed Vs Kano State (2018) 13 NWLR (Pt 1635) 85. It is evidence supplementary to that already given and tending to strengthen or confirm it; additional evidence of a different character to the same point. See Stephen Vs State (2013) 8 NWLR (Pt 1355) 153, Musa Vs State (2013) 9 NWLR (Pt 1359) 214, State Vs Gwangwan (2015) 13 NWLR (Pt.1477) 600 at 626. In State Vs Yahaya (2019) LPELR 47611(SC), the Supreme Court explained it thus:
“On what corroboration means, one can posit with humility that it entails the acts of supporting or strengthening a statement of a witness by fresh evidence of another witness. It does not mean that the witness corroborating must use the exact or very words, unless the maker involves some arithmetic. The test to be applied to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony which affects the accused by connecting or tending to connect him with the crime. The corroborative evidence required needs not be direct evidence linking the accused person to the commission of the offence. It is enough even if it is only circumstantial and connects or leads to connect the accused with its commission.” HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
THE PRINCIPLE OF LAW ON THE DEFENCE OF ALIBI
But perhaps one of the best expose of the principles was that made by Achike, JSC, in the case of Ebre Vs State (2001) 12 NWLR (Pt 728) 617, where His Lordship stated:
“We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeing that when properly established, it has the far-reaching finality of exculpating the accused person from complete criminal responsibility. To take advantage of this defence, the accused person must give a detailed particularization of his whereabouts on the crucial day the offence which will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any, transpired at the said time and place(s). Obviously, such comprehensive information furnished by the accused person must, unquestionably, be capable of investigation by the Police should they wish to do so. A fair minded Tribunal would have no other option than to exercise its discretion of doubt in favour of the accused person. Furthermore, such defence must be timeously brought to the attention of the Police by the accused person, preferably in his extra-judicial statement to afford the Police an ample time to carry out its investigation. For the accused person to raise the defence while testifying at his trial is to deliberately deny the prosecution its right and duty to investigate the defence. Such a ploy cannot avail the accused…” HABEEB ADEWALE OLUMUYIWA 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/37C/2009 by Honorable Justice Amina Adamu Aliyu on the 27th of June, 2018.
The Appellant was charged with one count of culpable homicide punishable with death contrary to the provisions of Section 221(b) of the Penal Code of Kano State. The Appellant was alleged to have on or about the 17th day of February, 2003 at Damisawa Village within Kano Judicial Division committed culpable homicide by causing the death of one Salamatu Lawal by stabbing her with a knife on the neck with knowledge that her death was a probable consequence of his action. The Appellant pleaded not guilty to the charge and the matter proceeded to trial.
The records of appeal shows that trial commenced on the 11th of May, 2010 and that the Respondent called three witnesses and tendered documents in proof of its case. The first and second prosecution witnesses gave evidence and were cross-examined on the said 11th of May, 2010 and the third prosecution witness also commenced his evidence in chief on the same day.
The records shows that the third prosecution witness eventually concluded his evidence in chief on the 5th of July, 2013 and he was cross-examined on that day. The Respondent sought for an adjournment to call further witnesses and it eventually closed its case on the 16th of March, 2015 without calling any further evidence and the matter was adjourned for defence to open. The defence opened on the 16th of November, 2015 and the Appellant testified as the sole defence witness and was cross-examined and the defence closed its case and the matter was adjourned for adoption of final written addresses.
The records of appeal shows that the trial Judge did not conclude the hearing of the matter and it was, under the hand of the then acting chief Judge of Kano, transferred on the 14th of February, 2017 to another trial Judge for hearing and determination. The Appellant was re-arraigned before the new trial Judge on the 27th of November, 2017 and he pleaded not guilty and the matter was set down for hearing. When the matter came up on the 26th of February, 2018 for trial, Counsel to the Respondent filed an application praying for an order of the lower Court adopting the evidence of the three prosecution witnesses who had testified in the earlier proceedings on the ground that one of them was dead while the second one had relocated and the third prosecution witness, the Investigating Police Officer, had retired and could not be located. Counsel to the Appellant opposed the application and the lower Court heard same on the merit and granted it in a considered ruling delivered on the 28th of March, 2018.
Thereafter, Counsel to the Appellant too applied that the evidence given by the Appellant in the earlier proceedings be adopted and the lower Court granted the application with the consent of Counsel to the Respondent. Counsel to the parties filed their final written addresses on the basis of the evidence and they adopted them before the lower Court. The lower Court found the Appellant guilty as charged and sentenced him to death by hanging. The Appellant was dissatisfied with the judgment and he caused a notice of appeal dated the 3rd of September, 2018 and containing thirteen grounds of appeal to be filed. The records of appeal were compiled and transmitted to this Court on the 31st of January, 2019 and they were deemed properly compiled and transmitted by this Court on the 23rd of January, 2020.
In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 21st of February, 2019 on the same date and the brief of arguments was deemed to have been properly filed and served by this Court on the 23rd of January, 2020. In response, Counsel to the Respondent filed a brief of arguments dated the 22nd of January, 2021, on the same date, and the brief of arguments was deemed to have properly filed and served by this Court on the 8th of February, 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 four issues for determination in the appeal and these were:
i. Whether the procedure adopted by the learned trial Judge in adopting the entire earlier evidence before the previous Judge and gave judgment without more was right in the circumstances.
ii. Whether the Respondent had the locus standi to prosecute the Appellant for the charge.
iii. Whether the learned trial Judge rightly convicted the Appellant and sentenced him to death by hanging having regards to the totality of the evidence adduced.
iv. Whether the Respondent sufficiently investigated the defence of alibi.
Counsel to the Respondent adopted the four issues for determination formulated by Counsel to the
Appellant. Reading through the records of appeal, particularly the records of proceedings before the
lower Court, including the notes of evidence and the judgment appealed against, as well as the notice of appeal of the Appellant and the arguments contained in the briefs of arguments of the parties, it is the view of this Court that there are three issues for determination in this appeal. These are:
i. Whether the procedure used by the learned trial Judge in adopting the evidence led by the parties before the former trial Judge in the earlier proceedings and in delivering judgment thereon without more was right in the circumstances.
ii. Whether the Respondent had the locus standi to prosecute the Appellant for the charge.
iii. Whether the lower Court was correct when it found that the Respondent led cogent and credible evidence to prove the ingredients of the offence of culpable homicide against the Appellant beyond reasonable doubt.
This appeal will be resolved on the three issues for determination and the arguments of Counsel to the parties will be considered under the three issues for determination. The three issues for determination will be resolved seriatim.
Issue One
Whether the procedure used by the learned trial Judge in adopting the evidence led by the parties before the former trial Judge in the earlier proceedings and in delivering judgment thereon without more was right in the circumstances
In arguing the issue for determination, Counsel to the Appellant noted that upon the transfer of the case from the former Judge to the lower Court for hearing de novo, Counsel to the Respondent filed an application pursuant to the provisions of Section 239(1) and (2) of the Criminal Procedure Code praying that the evidence led by the three prosecution witnesses before the former Judge be adopted because one of the witnesses could not be found, one was dead and the third had retired from service. Counsel stated that the lower Court granted the application, despite his opposition thereto, and it adopted the evidence of the three prosecution witnesses and that the procedure used by the lower Court in making the adoption was perverse as the evidence was neither produced in open Court nor read over to the Appellant contrary to the provisions of Section 239 of the Criminal Procedure Code and he reproduced the provisions. Counsel stated that the Respondent did not supply any evidence to support the assertions that one of the witnesses could not be found, one was dead and that the third had retired from service and that it was wrong for the lower Court to have exercised its discretion to adopt and rely on the evidence of witnesses it was not privileged to see and whose veracity it had not tested and he referred and quoted extensively from the case of Eghobamien Vs Federal Mortgage Bank of Nigeria (2002) FWLR (Pt 12) 1858.
Counsel stated that the Respondent was expected to lead strict evidence in support of its assertions that one of the witnesses was dead and that the other could not be found and that the lower Court relied on the assertions despite the absence of such strict evidence and he referred to the provisions of Section 50 of the Evidence Act and the case of Ajijola Vs The State (1976) 6 SC 13. Counsel reiterated that the reading of the previous evidence to the hearing of the Appellant before its acceptance as evidence was one of the requirements of Section 239 of the Criminal Procedure Code and that no such thing happened in the present case, yet the lower Court adopted the evidence of the three witnesses and he referred to the case of Queen Vs Ijoma (1962) 1 All NLR 402. Counsel stated that the cumulative effect of the actions of the lower Court occasioned a miscarriage of justice and he prayed the Court to resolve the first issue for determination in favour of the Appellant.
In his response arguments, Counsel to the Respondent referred to and reproduced the provisions of Section 46 of the Evidence Act on the conditions for admissibility of evidence led in previous proceedings and stated that the law is that the party seeking to rely on such evidence must show that the witness is dead or unfound or incapable of giving evidence or restrained by the other party or that his presence will entail an unreasonable delay and expense and that the parties in the previous proceedings and the present one are the same and that other party had the right and opportunity to cross-examine the witness and that the issues in the two proceedings were the same. Counsel stated that the Respondent deposed to an affidavit in support of its application wherein it stated that the first prosecution witness was dead, while the second prosecution witness had relocated after remarrying and finding her would occasion a delay, difficulty and expense, and that the third prosecution witness, a police officer, had retired and moved on. Counsel stated that the new proceedings was continued on the same charge sheet as the one in the previous proceedings and that the Appellant was present in Court when the three prosecution witnesses testified and they were cross-examined by Counsel to the Appellant.
Counsel stated that all that was required of the lower Court, in the circumstances, was to exercise caution in relying on the evidence as they were given by witnesses it did not see and whose veracity it did not personally assess and he referred to the case of Doka Vs The State (1967) 1 All NLR 334. Counsel stated that after the adoption of the evidence of the prosecution witnesses, the Appellant freely and voluntarily chose to adopt his evidence in the previous proceeding, instead of testifying again. Counsel stated that the requirement of the Registrar of Court reading out the evidence of the witnesses was unnecessary in the circumstances of this case as the evidence was contained in the transferred case file in possession of the lower Court. Counsel stated that even if the failure to read out the evidence was necessary, failure to do so was a procedural irregularity which Counsel to the Appellant ought to have objected to immediately before taking any further step in the proceedings and that failure to do so amounted to a waiver of the irregularity and it cannot be raised in this Court and he referred to the case of Zakirai Vs Muhammad (2017) LPELR 40387(CA). Counsel urged the Court to resolve the issue for determination in favour of the Respondent.
The complaint of the Appellant under this issue for determination is against the adoption of and reliance placed on the testimonies of the three prosecution witnesses given in the earlier proceedings by the lower Court. This was the focus of Counsel to the Appellant in his entire arguments. The principal law governing the use to be made of evidence given by a witness in previous or earlier proceedings is the Evidence Act. The general principle of law is that evidence of a witness taken in earlier proceedings is not relevant in a later trial and that it is wrong to treat evidence in previous proceeding of an absent witness in later proceedings as one of truth. See Alade Vs Aborishade (1960) SCNLR 398; (1960) 5 FSC 167, 171, Asuiquo Udo Enang and Anor Vs Eden Udo Ekanem & Ors (1962) 1 All NLR 530, Ariku Vs Ajiwogbo (1962) 2 SCNLR 369, (1962) 1 All NLR 629, 631 632. The Evidence Act, however, creates some exceptions to this general position of the law and the exception relevant to this present appeal is provided for in Sections 39 and 46 of the Evidence Act, 2011. The exception says that evidence given by a witness in a previous judicial proceeding, whether or not the witness was a party to the previous proceeding, is admissible in a subsequent judicial proceeding to prove the truth of the facts it stated when the conditions specified by the two Sections are satisfied.
The combined provisions of Sections 39 and 46 of the Evidence Act, 2011 read that evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable. Provided (a) that the proceeding was between the same parties or their representatives in interest; (b) that the adverse party in the first proceeding had the right and opportunity to cross examine; and (c) that the questions in issue were substantially the same in the first as in the second proceeding. (This used to be the provisions of the now repealed Section 34(1) of the Evidence Act Cap E14 Laws of the Federation of Nigeria, 2004).
The Sections codified the Latin maxim, res inter alia acta alteri nocere non debet, meaning, a man ought not to be prejudiced by what has taken place between others and they have been interpreted by the Courts in several cases. The Courts are unanimous that it is only on the fulfillment of the stipulated conditions in the provisions that evidence of a witness given in an earlier proceeding can be adopted as vidence of truth in a subsequent proceeding. See Nahman Vs Odutola (1953) 14 WACA 381, 384, Lawal Vs Dawodu (1972) LPELR 1761(SC) at 17-18 F-D, Sanyaolu Vs Coker (1983) All NLR 157, Ikenye Vs Ofune (1985) 16 NSCC (Pt 1) 379, Okonji Vs Njokanma (1999) 14 NWLR (Pt 638) 250, Eghobamien Vs Federal Mortgage Bank of Nigeria (2002) LPELR 1045(SC) at 9-11, Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332, Akaninwo and Ors Vs Nsirim and Ors (2008) LPELR – 321(SC) at 39-40 B-A, Dada Vs Bankole (2008) LPELR – 907(SC) at 11-12 E, Eze Vs Ene (2017) 12 NWLR (Pt 1579) 313. This is premised on the position of the law that the best evidence available must always be produced and used by the Courts so that the rights of litigants are correctly decided.
The conditions are mandatory and cannot be waived, not even by consent of the parties, and once any of them is absent, the evidence to be relied on would be inadmissible. See Nahman Vs Odutola supra, Shanu Vs Afribank (Nig) Plc (2002) 17 NWLR (Pt 795) 185, Eghobamien Vs Federal Mortgage Bank of Nigeria supra, Eze Vs Ene supra, Fadoul Vs Igbinevwo (2018) LPELR – 45232(CA). The power under Sections 39 and 46 of the Evidence Act must at all times be exercised with great caution, thus it is required that, for instance, the death or incapability of the absent witness to give evidence must be proved strictly and the onus of proving that a witness is dead or cannot be found is on the party who wishes to rely on the evidence. See Eze Vs Ene supra.
The provisions of Section 239 of the Criminal Procedure Code under which the Respondent filed the application before the lower Court for the adoption of the testimonies of the three prosecution witnesses in the earlier proceedings are similar and in pari materia with the provisions of Sections 39 and 46 of the Evidence Act. In the affidavit in support of the application, the Respondent deposed that the proceedings before the lower Court were for the retrial of the Appellant on same charge of culpable homicide punishable with death as in the earlier proceedings and that the three prosecution witnesses testified on oath in the earlier proceedings and were duly cross-examined by the Counsel to the Appellant. The Respondent deposed that the Village Head who testified as the first prosecution witness was dead, while the wife of the Appellant who testified as the second prosecution witness had long remarried and relocated from the vicinity and that the Investigating Police Officer who gave evidence as third prosecution witness had long retired from service and that the second and third prosecution witnesses cannot be located and brought to Court to testify without an amount of delay, inconvenience and expense.
The Appellant opposed the application and he caused a counter-affidavit to be filed wherein he did not contest the assertions of the Respondent that the first prosecution witness was dead and that the third prosecution witness had long retired from service and he affirmed the assertion that the second prosecution had remarried and relocated. The contention of the Appellant on the counter-affidavit was that the Respondent did not show that the first prosecution witness was truly dead and did not show the efforts it had made to get the second and third prosecution witnesses to attend Court to testify. The Appellant did not contest the assertion that the second and third prosecution witnesses could not be located and brought to Court to testify without an amount of delay, inconvenience and expense.
The lower Court heard the application on the merits and, after restating the facts deposed by the parties, it ruled thus:
“The prosecution witnesses have testified and were all cross-examined by the Counsel for the accused person and the accused person has also testified and was cross-examined. The trial of the accused person commenced on 29/7/2009, about 10 years now and is yet to conclude and may take up to that to conclude if care is not taken. The application was made by way of motion on notice supported by an affidavit. Therefore all the facts stated are sworn testimony … One of the witnesses in this case is dead and the whereabout of the other two unknown. It appears a further delay and expense will be caused if the Court does not take or avail Counsel with the benefit of Section 239(1) CPC and Section 46 of the Evidence Act (2011 as amended).
Accordingly, I find merit in the application and it is accordingly granted.”
The previous testimonies of the three prosecution witnesses were adopted by the lower Court pursuant to the provisions of Sections 39 and 46 of the Evidence Act. The procedure used by the lower Court in adopting the evidence of the three prosecution witnesses is known, valid and proper. Counsel to the Appellant contended that the lower Court ought to have caused the transcripts of the testimonies of the three witnesses to be produced in Court and read out before adopting and relying on them. There is no such requirement in Sections 39 and 46 of the Evidence Act and Section 239 of the Criminal Procedure Code that made mention of it used the word “may” and gave the lower Court the discretion whether to do so or not. It was not a mandatory requirement on the lower Court. The records of appeal shows that the Appellant and his Counsel were present in Court throughout when the three prosecution witnesses testified and were cross-examined in the earlier proceedings, they were thus aware of the evidence given by the witnesses. Additionally, Counsel to the Appellant was present in the lower Court throughout the proceedings leading up to the adoption of the testimonies of the three prosecution witnesses and at no time, either during the hearing of the motion of the Respondent for the adoption of the evidence or even thereafter, did the Appellant or his Counsel request for the reading of the transcripts of the evidence or complain about its non-reading. They cannot be heard to complain about it now on appeal. See Akhiwu Vs Principal Lotteries Officer, Mid-Western State (1972) 1 All NLR (Pt.1) 229, Ilodibia Vs Nigerian Cement Company Ltd (1997) 7 NWLR (Pt. 512) 174 at 190, Ibator Vs Barakuro (2007) 9 NWLR (Pt 1040) 475.
Counsel to the Appellants further contended that the lower Court was wrong to have granted the application of the Respondent because there was no strict proof of the conditions that one of the witnesses was dead and that the other two could not be located. In dealing with this assertion, it is essential to note that the three witnesses testified in the earlier trial on the 11th of May, 2010, a period of over eight years as the date the lower Court delivered the ruling on the Respondent’s motion for adoption of their evidence. In opposing the application, the Appellant did not contest the assertions of the Respondent that the first prosecution witness was dead and that the third prosecution witness had long retired from service and he affirmed the assertion that the second prosecution had remarried and relocated and neither did he contest that the second and third prosecution witnesses could not be located and brought to Court to testify without an amount of delay, inconvenience and expense. Counsel to the Appellant suggested that the Respondent ought to have presented some form documentary evidence in support of the assertions.
The rule that requires that an assertion be proved strictly does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish such an assertion. What is required is that the person making the assertion should establish it by credible evidence of such a character as would suggest that the assertion is true, otherwise the general law of evidence as to proof by preponderance or weight, usual in civil cases, operates. See Oshinjinrin & Ors Vs Alhaji Elias & Ors (1970) 1 All NLR 158 at 161, Arabambi Vs Advance Beverages Industries Ltd (2005) 19 NWLR (Pt 959) 1, Vinz International Nigeria Ltd Vs Morohundiya (2009) 11 NWLR (Pt 1153) 562, Ajigbotosho Vs Reynolds Construction Co Ltd (2018) LPELR 44774(SC).
It is settled that evidence of a party that is not challenged or contradicted can be believed and relied upon by a trial Court in making findings. See Nigeria Construction Ltd Vs Okugbeni (1987) 4 NWLR (Pt 67) 89, Ikuomola Vs Oniwaya (1990) 4 NWLR (Pt 146) 617, Lagos State Development & Property Corporation Vs Nigerian Land & Sea Foods Ltd (1992) 5 NWLR (Pt 244) 653, Eyo Vs Onuoha (2011) 3 SCNJ 302.
It is good law that unchallenged or un-contradicted oral evidence is admissible to establish the existence of a fact on which it is based and where it is cogent and relevant, there is no need for documentary evidence as the oral evidence has properly covered the entire evidential scene. See Ajao Vs Ashiru (1973) 11 SC 23, Odulaja Vs Haddad (1973) 11 SC 357, Okupe Vs Ifemembi (1974) 3 SC 97, Alalade Vs ICAN (1975) 4 SC 59, Inakoju Vs Adeleke (2007) 4 NWLR (Pt 1025) 423. The unchallenged assertions in the affidavit evidence of the Respondent were cogent and relevant and constituted sufficient credible evidence upon which the lower Court could rely to find that the Respondent satisfied the conditions for the adoption of the evidence given in previous proceedings, without the need for documentary evidence. The testimonies of the three prosecution witnesses in the earlier proceedings were thus properly adopted by the lower Court. The first issue for determination is resolved in favour of the Respondent.
Issue Two
Whether the Respondent had the locus standi to prosecute the Appellant for the charge.
In arguing the issue for determination, Counsel for the Appellant referred to the cases of Williams Vs Dawodu (1988) 4 NWLR (Pt 87) 189, Thomas Vs Olufosoye (1986) 1 NWLR (Pt 18) 669 in defining locus standi and stated that the Respondent lacked the locus standi to prosecute the Appellant in the name of Kano State and that the issue of locus standi is a jurisdictional issue and that where a party lacks locus standi, the Court has no jurisdiction to entertain the matter and he referred to the cases ofA. G. Kaduna State Vs Hassan (1985) NWLR (Pt 8) 483 and Fawehinmi Vs Akilu (1987) NWLR (Pt. 67) 797. Counsel stated that being jurisdictional, it is a threshold issue that can be raised at any stage in the proceedings including on appeal without leave of Court and either viva voce, by a motion on notice or by the Court suo motu and that it is settled law that once a Court acts without jurisdiction, the proceedings and the decision therein are void, no matter how well conducted and he referred to the cases of Nwankwo Vs Yar’adua (2010) 12 NWLR (Pt. 1209) 518, Mega Progressive Peoples Party Vs INEC (2015) LPELR 25706 (SC) and Ajayi Vs Adebiyi (2012) 11 NWLR (Pt 1310) 137.
Counsel stated that the Respondent described as Kano State, though being a constituent of the Federal Republic of Nigeria, lacked the locus standi to institute criminal prosecution and that from the Penal Code Law and the Criminal Procedure Code Law applicable in Kano State, the locus standi to institute criminal proceedings resided in either the Attorney General of the Federation or the Attorney General of Kano State, and not in Kano State, as a constituent State of Nigeria and that it is safe to argue that there is no statutory provision giving power to institute criminal proceedings in the name of Kano State and he referred to the provisions of Sections 174 and 211 of the Constitution of the Federal Republic of Nigeria 1999 and the cases of Jolly Nyame Vs FRN (2010) 11 NWLR (Pt 1193) 344 and Amoshima Vs The State (2008) LPELR 4369(CA). Counsel stated that a State in Nigeria is a territorial component and the power to act and take decisions resides in their officials and that in respect of initiating criminal proceedings, it resides constitutionally in the Attorney General of the State and that to commence an action in the name of a State simpliciter will be wrong and fatally flawed.
Counsel repeated the same arguments over and over and stated that criminal charges can only be filed in the names of the Federal Government, i.e. “The State” but not in the name of Kano State. Counsel concluded the arguments by urging the Court resolved the issue for determination in favour of the Appellant.
In his response, Counsel to the Respondent stated that the Respondent had the locus standi to prosecute the Appellant and that all that was required under Section 185 of the Criminal Procedure Code of Kano State before prosecution could commence in the High Court was that a charge be filed by the Attorney General or Prosecutor with the leave of Court. Counsel stated that by Section 7 of the Criminal Procedure Code, the powers of the Attorney General under the law may be exercised by him in person or through members of his Staff and a look at the charge sheet in the present case reveals that the charge was filed and signed a Counsel from the Attorney General of Kano State Chambers. Counsel stated that the law is that an accused person or his Counsel must raise any objection they have to a perceived error on the charge sheet at the time the charge is being read over to him, and they are precluded from raising it on appeal and he referred to the cases of Sadiku Vs State (2013) 12 SCM 150 and Ronke Vs FRN (2017) LPELR 43584. Counsel urged the Court to resolve the issue for determination in favour of the Respondent.
It is essential to understand that the jurisdiction of a Court is divided into two – procedural jurisdiction and substantive jurisdiction. There is a whole world of difference between procedural jurisdiction and the substantive jurisdiction of a Court to hear a matter and a matter of procedural jurisdiction does not qualify as “a jurisdictional challenge to the competence of the Court” that can be raised at anytime. Procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or Tribunal in going into matters before it are matters of procedure regulated by procedural rules. A plaintiff who has commenced an action which on the face of it is not incompetent is deemed to have invoked the presumed jurisdiction of the Court. A matter that impugns the presumed competence of the action should be raised by the opponent. See Gafari Vs Johnson (1986) 5 NWLR (Pt 39) 66 at 71, Atolagbe Vs Awuni (1997) 9 N WLR (Pt 522) 536, Mobil Producing Nigeria Unlimited Vs Lagos State Environment Protection Agency (2002) 18 NWLR (Pt. 798) 1, Nigeria National Petroleum Corporation Vs Idi Zaria (2014) LPELR 22362(CA).
It is matters of substantive jurisdiction that can be raised at anytime and either viva voce or by motion and by the Court itself suo motu and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural jurisdiction. See Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523) 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udoh Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488.
The Supreme Court and this Court have held that question of locus standi is not a matter that can be raised viva voce or by motion and/or by the Court itself suo motu; it is one that must be raised in accordance with the procedural rules of the Court concerned. See Dada Vs Ogunsanya (1992) NWLR (Pt 232) 754, Disu Vs Ajilowura (2006) 14 NWLR (Pt 1000) 783, Tabiowo Vs Disu (2008) 7 NWLR (Pt 1087) 533, Bakare Vs Ajose-Adeogun (2014) LPELR 25024(SC). It is a matter of procedural jurisdiction and it is one that should be raised first in the trial Court and it cannot be raised as a matter of right in the appellate Court for the first time. See Adisa Vs Adisa (2015) LPELR 41660(CA), Eze Vs Attorney General, Rivers State (2018) LPELR 45621(CA).
Where the issue is not raised in the lower Court, an appellant desirous of raising it on appeal must first obtain the leave of this Court to do so and where no leave is sought, the issue so raised will be incompetent and this Court will have no jurisdiction to entertain same. See Awusa Vs Nigerian Army (2018) LPELR 44377(SC), Jibrin Vs Federal Republic of Nigeria (2018) 13 NWLR (Pt 1635) 20, Mohammed Vs Federal Republic of Nigeria (2018) 13 NWLR (Pt 1636) 229, Osho Vs State (2018) 13 NWLR (Pt 1637) 474. The issue of locus standi of the Respondent to institute the present criminal proceedings against the Appellant was not raised in the lower Court and there is nothing on the records of appeal showing the Appellant sought for and obtained the leave of this Court before raising the issue in this appeal. The issue, as raised by the Appellant is incompetent.
This said, this Court must say it is unable to make any head or tail of the complaint of the Appellant on this issue for determination.
Counsel to the Appellant went round and round in his submissions without stating what the exact complaint was. Counsel conceded that the Respondent, “Kano State, is a juristic person being one of the constituent States of the Nigeria and recognized in the Constitution of the Federal Republic of Nigeria, 1999 (as amended). After stating that the prosecutorial powers of Kano State are vested in the Attorney General of Kano State, Counsel conceded that the Attorney General would not commence the action in its name but in the name, “The State”. Counsel maintained that where the Attorney General of Kano State institutes a criminal action in the name, “The State”, it is fine, but that commencing it in the name, “Kano State”, is wrong and fatal and he did not state any reason why this was so.
It was not in contest that the present criminal proceedings against the Appellant were commenced with a charge sheet filed by an officer from the office of the Attorney General of Kano State with the leave of the lower Court. The proceedings were commenced in the High Court of Kano State and they were to prosecute a crime allegedly committed within Kano State and the charge was filed pursuant to the provisions of the Penal Code Law of Kano State. Thus, whether the action was instituted in the name, “The State”, or in the name, “Kano State”, is mere semantics and does not derogate from the validity of the charge. It was not the case of the Appellant that he was misled about the offence he was being charged for and/or that he did not understand same because it was brought in the name, “Kano State”, instead of in the name, “The State”. If the Appellant considered that instituting the criminal proceedings in the name of “Kano State” was wrong, the proper time for him to have raised the objection was when the charge was being read to him and he was asked to enter a plea. The charge was read to the Appellant in the presence of his Counsel and neither of them raised an objection thereto. They cannot be heard to be raising the objection on appeal. See Adio Vs State (1986) 3 NWLR (Pt 31) 714, Agbo Vs State (2006) 6 NWLR (Pt 977) 545, Federal Republic of Nigeria Vs Adewunmi (2007) 10 NWLR (Pt 1042) 399, Egunjobi Vs Federal Republic of Nigeria (2012) 3 NWLR (Pt 1342) 534. Additionally, the law is that an accused person cannot pick and choose the name in which criminal proceedings are to be commenced against him and it, thus, did not lie in the mouth of the Appellant to challenge his prosecution in the name, “Kano State”, instead of in the name, “The State”. The person that could complain was the Government of Kano State on whose behalf the prosecution was carried out by the office of its Attorney General. See Comptroller, Nigeria Prison Services Vs Adekanye (No. 1) (2002) 15 NWLR (Pt 790) 318, Federal Republic of Nigeria Vs Adewunmi (2007) 10 NWLR (Pt 1042) 399, Akingbola Vs Federal Republic of Nigeria (2012) 9 NWLR (Pt 1306) 511, Nnakwe Vs State (2013) 18 NWLR (Pt 1385) 1, Jinadu Vs Federal Republic of Nigeria (2015) LPELR-24381(CA). This is particularly more so as the Appellant has not shown any miscarriage of justice he suffered by his prosecution in the name, “Kano State”. See Kalu Vs Federal Republic of Nigeria (2012) LPELR 9287(CA).
The contention of the Counsel to the Appellant on the second issue for determination was totally misconceived and the issue for determination is resolved in favor of the Respondent.
Issue Three
Whether the lower Court was correct when it found that the Respondent led cogent and credible evidence to prove the ingredients of the offence of culpable homicide against the Appellant beyond reasonable doubt.
In arguing this issue for determination, Counsel to the Appellant stated that the lower Court, from the totality of the evidence adduced before it, failed to judiciously and judicially exercise its discretionary power to resolve the material contradictions visible in the evidence of the prosecution witnesses. Counsel traversed through the evidence of the second prosecution witness and stated that the witness did not say she saw the Appellant commit the crime or was anywhere near the scene of crime and that she said she saw the Appellant at home on the fateful day and that the Appellant was apprehended outside their house. Counsel stated that the Respondent did not tender the knife alleged used to stab the deceased in evidence and neither did it tender a forensic report on the knife showing the fingerprints of the Appellant thereon and none of the three prosecution witnesses testified that he saw the Appellant stab the deceased.
Counsel stated that the only evidence linking the Appellant with the commission of the offence were the hearsay evidence of the first and second prosecution witnesses and the extra judicial statements of the Appellant tendered as exhibits and that the status of the extra judicial statements will turn on whether they carried any weight at all in the circumstances of the case. Counsel stated that the Medical Report of the Coroner was tendered by the third prosecution witness, the Investigating Police Officer, who is not a medical personnel and could not give expert medical evidence and that the Respondent failed to call the Medical Doctor listed as a witness who would have been cross-examined on his report on cause of death. Counsel stated that the fact that the Appellant did not object to the admissibility of the Medical Report did not stop it from amounting to documentary hearsay which should be expunged and he referred to the case of Archibong Vs State (2006) All FWLR (Pt 323) 1747.
Counsel stated that the Appellant testified in his defence and gave evidence that the deceased and the second prosecution witness were not his wives and that he did not kill the deceased and that he was in Kano at the time of the incident and was arrested on his return from Kano and was seriously tortured and suffered a broken leg and that he did not write, sign or thumb print any extra judicial statement. Counsel stated that the lower Court gave weight to irrelevant evidence, the extra judicial statements which the Appellant denied, in its evaluation of evidence and it ignored the defence of alibi raised by the Appellant when he gave evidence that he was not present at the scene of crime and which alibi the Respondent did not investigate. Counsel stated that the lower Court was in error in rejecting the defence of alibi on the ground that it was not timely raised and that the Appellant was not cross-examined by the Respondent on the defence and that the issue of non-timely articulation of the defence was raised suo motu by the lower Court and he referred to the case of Waziri Vs State (1997) 3 NWLR (Pt 496) 689 on the effect of failure to cross-examine a witness. Counsel also referred to the cases of Saka Vs The State (2006) All FWLR (Pt. 335) 148 and Udo Ebre Vs State (2001) 6 SCNJ 54 on the effect of the failure of the Respondent to investigate, and the failure of a trial Court to consider, a defence of alibi.
Counsel stated that there was a contradiction in the evidence of the third prosecution witness when he testified that the deceased was the daughter of the Appellant and that this discrepancy created a doubt, which was not properly cleared either under re-examination or by the lower Court, and ought to have been resolved in favour of the Appellant. Counsel stated that the lower Court was in error in finding that the three ingredients of the offences of culpable homicide were proved by the Respondent beyond reasonable doubt and Counsel thereafter, in his usual style, repeated the above summarized arguments over and over. Counsel stated that the failure of the Appellant to object to the tendering of his extra judicial statement was of no consequence because he subsequently denied making them and that confessional statement alone can ground conviction without corroboration only if it is direct, positive and unequivocal, otherwise it is desirable that it should be corroborated by further evidence and he referred to the case of Onochie Vs Federal Republic of Nigeria (1966) NMLR 307 and Kasa Vs The State (1994) 5 NWLR (Pt 344) 269, amongst others.
Counsel stated that the lower Court descended into the arena and sought to fill the glaring gaps in the case of the Respondent and this is not the function of a trial Court and he referred to the cases of Edokpolo & Co., Ltd Vs Ohenhen (1994) 7 NWLR (Pt 358) 511 and Ahmad Vs Sokoto State House of Assembly (2003) All FWLR (Pt 1740 325. Counsel stated that the Respondent failed to call the witnesses that were said to have accosted the Appellant as he was attempting to flee the scene of the crime and that amounted to not calling a material witness and he referred to the case of Usufu Vs State (2008) All FWLR (Pt 405) 1731. Counsel concluded his arguments by urging the Court to resolve the issue for determination in favour of the Appellant.
In his response arguments, Counsel to the Respondent referred to the case of Eke Vs The State (2011) 1 SCM 155 in asserting that the prosecution will be said to have proved its case beyond reasonable doubt when all the essential ingredients of the offence charged have been proved sufficiently. Counsel thereafter reiterated the essential ingredients of the offence of culpable homicide punishable with death and he referred to the case of Abirifon Vs The State (2013) 9 SCM 1 in stating the three methods of proving the guilt of an accused person in a criminal trial. Counsel stated that there was no dispute on the fact that the person referred to in the charge as Salamatu Lawal died and that by the extra judicial statements tendered as exhibits and the evidence of the first and third prosecution witnesses and Medical Report of death, the Respondent proved the three ingredients of the offence of culpable homicide against the Appellant. Counsel stated the extra judicial statements of the Appellant were confessional and that confessional statement was positive, direct, unequivocal, free and voluntary and it was succinctly corroborated by the evidence of the first and third prosecution witness and these established the guilt of the Appellant.
Counsel stated that the defence of alibi canvassed by Counsel to the appellant was without foundation and that the Respondent was not duty bound to call witnesses to disprove the defence when there were stronger facts in evidence locating the Appellant at the scene of the crime, as in such circumstances the defence, no matter how beautifully put up, is defeated and he referred to the case of Omotola Vs The State (2009) 8 ACLR 29. Counsel stated that the Appellant never indicated that he had an alibi throughout the period of investigation and he raised the defence for the first time in his oral evidence and cannot be said to have given the Respondent the opportunity to investigate same and that the defence of alibi was of no assistance to the case of the Appellant and he referred to the case of Ikemson Vs The State (1989) NWLR (Pt 110) 455. Counsel urged the Court to resolve the issue for determination in favour of the Respondent.
The Appellant was charged with one count of culpable homicide punishable with death and he was alleged to have on or about the 17th day of February, 2003 at Damisawa Village within Kano Judicial Division caused the death of one Salamatu Lawal by stabbing her with a knife on the neck. 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. The onus does not shift at all as it rests squarely on the prosecution throughout the case. 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. See 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.
It must however be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable. In other words, proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof of a mathematical certainty. Once 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. See Isah Vs State (2018) 8 NWLR (Pt 1621) 346, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Phillip 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.
On the first ingredient of the offence of culpable homicide punishable with death, i.e. that the deceased died, the first and third prosecution witnesses gave unchallenged evidence of the death of the deceased and the Respondent tendered a post mortem report dated the 18th of February, 2003 as Exhibit 3 and wherein it was confirmed that the person referred to in the charge as Salamatu Yusuf is dead. The first ingredient of the offence of culpable homicide punishable with death was established without much ado. The finding of the lower Court on the issue in the judgment has not been appealed against by the Appellant.
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. See 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:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“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.”
As stated earlier, the Respondent tendered a post mortem report which stated that there were several stab wounds on the body of the deceased with dissection of the right jugular vein and that the cause of death, in a layman’s language, was excessive loss of blood caused by uncontrollable bleeding from the multiple stab wounds. Counsel to the Appellant took an exception to the reliance placed by the lower Court on the post mortem report and stated that since the medical doctor who authored the post mortem report did not attend the lower Court to give evidence and the report was tendered by the third prosecution witness, a non-medical personnel, who could not be cross-examined thereon, the post mortem report amounted to documentary hearsay and was not deserving of any probative value.
It is obvious that Counsel to the Appellant did not avert his mind to the provisions of Section 55 (1), (2) and (3) of Evidence Act which deals with the tendering of medical certificates in making his submissions. The provisions read that either party to the proceedings in any criminal case may produce a certificate signed by a Government pathologist or by any pathologist specified by the Director of Medical Laboratories of the State and the production of any such certificate may be taken as sufficient evidence of the facts stated therein but with a proviso empowering the Court to either on its own motion or on the application of the other party direct such pathologist to attend Court for purposes of cross-examination. The Courts have interpreted this provision to mean that it is not mandatory for a medical officer who performed an autopsy on a deceased to be present in Court to give evidence during trial and that the production by either party of a certificate signed by the medical officer was sufficient evidence of the facts stated in the autopsy report. See Isiekwe Vs State (1999) 9 NWLR (Pt 617) 43, State Vs Ajie (2000) 11 NWLR (Pt 678) 434, Eyo Vs State (2009) LPELR 8686(CA), Edoho Vs State (2010) 14 NWLR (Pt 1214) 651, Oguno Vs State (2011) 7 NWLR (Pt 1246) 314, Adesina Vs People of Lagos State (2019) 8 NWLR (Pt 1673) 125, State Vs Musa (2019) LPELR 47541, Etuk-Udo Vs State (2020) LPELR 49164(CA).
Additionally, Counsel to the Appellant was also oblivious of the provisions of Section 249(3)(a),(b) and (c) of the Criminal Procedure Code which reads that a written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of the death of any person who has been examined by him and that on the admission of such report, the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court. Further, that if by any reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medial officer or registered medical practitioner shall attend and give evidence in person the Court shall summon such medical practitioner to appear as a witness. In interpreting these provisions, the Courts have held that though they say that the written medical report shall be read to the accused after its admission in evidence and he shall be asked whether he disagrees with any statement therein, where the accused person is represented by a counsel, the Court needs not ask the accused person if he agrees with any statement in the medical report. See Difa Vs The State (1977) NNLR 224, Dajuma Vs Kano State (2018) LPELR 44724(CA), Fulani M. Vs State (2018) LPELR 45195(SC).
What the above provisions and their interpretations portend is that the presence in Court of the Medical Doctor who carried out the autopsy and authored the post mortem report was not necessary for the admissibility of the report.
The third prosecution witness who tendered the post mortem report was the Investigating Police Officer who conveyed the corpse of the deceased to the pathologist with the forms requesting for an autopsy to be carried out and he testified that at the conclusion of the autopsy, the post mortem report was handed to him. The third prosecution witness was a proper person to tender the report. The records of appeal shows that Counsel to the Appellant did not challenge the contents of the medical report after it was tendered and neither did he apply to the lower Court for the calling of the said Medical Doctor who authored it for purposes of cross examination. The said medical report did not thus constitute documentary hearsay and the reliance placed on it and the probative value given to it by the lower Court in finding that the cause of death was as stated in the report cannot be faulted.
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. See 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.
The Respondent called three witnesses and tendered exhibits in proof of its case against the Appellant. In the course of the judgment, the lower Court expunged the evidence of the second prosecution witness on the ground that she was not listed as a witness and this expunction has not been appealed against by the Respondent. It is obvious from the records of appeal that the Respondent relied on the confessional statement of the Appellant and the circumstantial evidence in the testimonies of the first and third prosecution witnesses in proving the guilt of the Appellant and that it was on the basis of these that the lower Court convicted and sentenced the Appellant.
The Hausa language and the English language versions of the confessional statement of the Appellant were tendered by the Investigating Police Officer, the third prosecution witness, who testified that the Appellant made the statement voluntarily in Hausa language and that he recorded the statement in Hausa language and later translated it into English language. The statements were admitted as Exhibits 1 and 2. The English language version of the statement read, in part, thus:
“…I of the above named and address voluntarily elect to give my statement as follows: That I could remember sometimes in the month of Ramadan, I sold a he-goat to my wife Salamatu at the rate of N500.00. Later on for some times the he-goat died and she said I must pay her … N1,000.00 for the he-goat as I sold the remaining one. Then I gave her N700.00 but she refused to collect. At long … out of my house with the intention of to go and meet her parents for reconciliation not for divorce, after she left for one day. I did not go to her parents’ house because I was seriously sick. She stayed at her parents’ house. She reported me to the Village Head of Damasuwa that I hold her money, the sum of N1,000.00 and he called me and ordered me to pay the N1,000, which I did. After I paid the money, I still went to her parents’ house for reconciliation, but her parents said no way. Later on she reported me to Minjibir Sharia Court where the Judge gave more time for settlement but she refused, then I divorced her in the Court. Later on the 17/2/2003 at about 10.00hrs she came to my house to park her properties. After she parked the properties finish, she called me and when I came, she told me she had married me for the last time now and she also told me that whatever I want to do to her I should go ahead and that if I do not do anything to her my mother never born me with blood. On hearing that I brought out a knife from my … and stabbed her on her throat, but the rest of the wounds, I do not know when I wounded her because I was confused because of the love I have for her and I am going to miss her. From there she dragged herself to my senior brother’s compound and died…”
Counsel to the Appellant contended that the lower Court was in error in giving probative value to the confessional statement because the Appellant denied making the statement in the course of his oral evidence in his defence. Counsel stated that there was clear conflict between the contents of the confessional statement and the oral evidence of the Appellant and that the lower Court was obligated in such circumstances to reject both the confessional statement and the oral evidence as unreliable and not to pick one over the other. Counsel also contended that since the Appellant denied making the confessional statement, it meant that the confessional statement was not direct, cogent and unequivocal and that it cannot support a conviction without corroboration and that there was no independent evidence acting as corroboration.
The first contention of Counsel to the Appellant is a misapplication of what is referred to in criminal litigation as the inconsistency rule – that where the evidence of a witness is inconsistent with his extra judicial statement, a trial Court should treat the witness as unreliable and reject both the oral evidence of the witness and the extra judicial statement. The rule is only applicable to the evidence of a witness vis-à-vis his extra judicial statement, and it is not applicable to an accused defendant vis-à-vis his extra judicial statement. See Emoga Vs State (1997) 1 NWLR (Pt 483) 615, Akpan Vs The State (2001) 15 NWLR (Pt 737) 745, Nsofor Vs The State (2004) 18 NWLR (Pt 905) 929. The rationale for this position of the law was given by Olatawura, JSC, while sitting on the full panel of the Supreme Court in Egboghonome Vs State (1993) 7 NWLR (Pt 306) 393 thus:
“It will be an escape route freely taken by an accused person without any hindrance to escape justice. It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of Court a free man simply because he had a change of mind, the whole trial will be a mockery. As aptly put by the Attorney-General of Ondo State, ‘it would be dangerous to apply the principle to extra judicial confession of accused persons as it would open the floodgate to retraction of all statements made by accused persons before police officers.’”
The present state of the law with regards to an accused defendant vis-à-vis his extra judicial statement is that where an accused defendant does not challenge the making of his extra judicial statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the extra judicial statement upheld unless a satisfactory explanation of the inconsistency is proffered. See Gabriel Vs State (1989) 5 NWLR (Pt 122) 457, Ogoala Vs State (1991) 2 NWLR (Pt 175) 509, Egboghonome Vs State (1993) 7 NWLR (Pt 306) 383, Oladotun Vs State (2010) 15 NWLR (Pt 1217) 490, Federal Republic of Nigeria Vs Iweka (2013) 3 NWLR (Pt 1341) 285, Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360. The Appellant did not proffer any explanation for the inconsistency between his oral evidence and the above reproduced contents of the confessional statement.
The records of appeal shows that the Appellant and his Counsel did not raise any objection to the tendering of the confessional statement. The records shows that after admitting the confessional statement, the lower Court directed the third prosecution witness to read it out in open Court and that even thereafter, the Appellant and his Counsel made no complaints about the making or the contents of the statement. They did not protest then that the Appellant did not make the statements and/or that the signatures thereon did not belong to the Appellant. It is a settled principle in criminal litigation that where a confessional statement of an accused defendant is tendered in evidence without any objection or protest from the accused defendant or his Counsel, the confessional statement will be deemed to have been made voluntarily and its contents will be deemed true. See Osung Vs State (2012) 18 NWLR (Pt 1332) 256, Ajibade Vs State (2013) 6 NWLR (Pt 1349) 25 at 44 E-H, Stephen Vs State (2013) 8 NWLR (Pt 1355) 153 at 173 D-H, Bassey Vs State (2019) LPELR 46910(SC).
The records of appeal further shows that at no time during the cross-examination of the third prosecution witness did the Counsel to the Appellant put the witness to task on whether or not the Appellant made the confessional statement. The law is that, in such circumstances, the testimony of the witness on the making of the statement by the Appellant will be believed and any subsequent suggestion otherwise by the accused defendant is to be treated as an afterthought. See Oforlete Vs State (2000) 12 NWLR (Pt 681) 415, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119, Chukwu Vs State (2013) 4 NWLR (Pt 1343) 1, Egwumi Vs State (2013) All FWLR (Pt 678) 824. This is in furtherance of the settled principle of law that failure to cross-examine a witness on a material fact, is an acceptance of the truth of the evidence of the witness on that fact. See Esene Vs State (2017) 8 NWLR (Pt 1568) 337, Isah Vs State (2018) 8 NWLR (Pt 1621) 346, Patrick Vs State (2018) 16 NWLR (Pt 1645) 263, Egba Vs State (2019) 15 NWLR (Pt 1695) 201.
It is correct that the Appellant denied making the confessional statement in the course of his oral evidence in his defence. The law is that the retraction of a confessional statement does not render confession inadmissible. The mere fact that an accused person denies making a confessional statement to the police, does not render such extra judicial statement inadmissible. See Olude Vs State (2018) 10 NWLR (Pt 1627) 292, Edun Vs Federal Republic of Nigeria (2019) LPELR 46947(SC), Alao Vs State (2019) LPELR 47856(SC), Mindi Vs State (2020) LPELR 52897(SC). What is required is that before the Court would believe and act on the confession it should subject the confessional statement to the following tests: (i) whether there is anything outside the confession which shows that it may be true; (ii) whether it is corroborated in any way; (iii) whether the relevant statements of facts made in it are mostly true as far as they can be tested; (iv) whether the defendant had the opportunity of committing the offence; (v) whether the confession is possible; and (vi) whether the alleged confession is consistent with other facts that have been ascertained and established. See Amos Vs State (2018) LPELR 44694(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Alao Vs State supra.
Now, corroborative evidence has been defined as evidence given by an independent witness which shows or tends to show that the fact that the accused committed the crime is true; not merely that the crime was committed, but that it was committed by the accused. The corroboration needs not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection to the crime. See Omisade Vs The Queen (1964) NSCC 170, Durugo Vs State (1992) 7 NWLR (Pt.255) 525 at 541, Ogugu Vs State (1994) 9 NWLR (Pt 366) 1, Edhigere Vs The State (1996) 8 NWLR (Pt. 464) 1 at 8, Mohammed Vs Kano State (2018) 13 NWLR (Pt 1635) 85. It is evidence supplementary to that already given and tending to strengthen or confirm it; additional evidence of a different character to the same point. See Stephen Vs State (2013) 8 NWLR (Pt 1355) 153, Musa Vs State (2013) 9 NWLR (Pt 1359) 214, State Vs Gwangwan (2015) 13 NWLR (Pt.1477) 600 at 626. In State Vs Yahaya (2019) LPELR 47611(SC), the Supreme Court explained it thus:
“On what corroboration means, one can posit with humility that it entails the acts of supporting or strengthening a statement of a witness by fresh evidence of another witness. It does not mean that the witness corroborating must use the exact or very words, unless the maker involves some arithmetic. The test to be applied to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony which affects the accused by connecting or tending to connect him with the crime. The corroborative evidence required needs not be direct evidence linking the accused person to the commission of the offence. It is enough even if it is only circumstantial and connects or leads to connect the accused with its commission.”
The first prosecution witness, the Village Head of Damasiwa, testified that on the 17th of February, 2003 at around 11am, a person called Tela Magaji came to inform him that the Appellant had killed his wife and that he rushed to the house of the Appellant and he met the deceased in a pool of blood inside the compound and that Appellant who had been subdued by people at the scene. He gave evidence that he ordered that the deceased be covered with a mat and that he directed the Ward Head to go and report the incident to the Police and that policemen later came and he, the Appellant and the Ward Head of Kazawa accompanied the Police with the corpse to Minjibir General Hospital and that they all then went to Bompai Police Head Quarters where the Appellant was detained. The evidence of the witness as to what he saw and did at the scene of crime and thereafter was not dented, disparaged or discredited by cross-examination.
The third prosecution witness, the Investigating Police Officer, testified that he was at the Police Station on the 17th of February, 2003 when the report of the killing of the deceased was reported and that he led a team of officers to the scene of crime and met the first prosecution witness and other people in front of the Appellant’s house. He gave evidence that he was led inside the house by the first prosecution witness and he met the deceased motionless and lying in a pool of blood and that they made arrangement to convey the deceased to the hospital and that he questioned the Appellant. He said that he asked about the knife used to commit the offence and that the Appellant took him into a room and from where the Appellant brought out a knife and gave to him and that it was a small knife covered with blood stains. Under cross-examination, the witness stated that the Appellant confessed committing the crime in course of the questioning and that was when he requested for the knife, the Appellant produced and handed it to him. The evidence of the witness was not dented, disparaged or discredited by cross-examination.
These unchallenged pieces of evidence clearly corroborate the contents of the confessional statement of the Appellant. Additionally, the autopsy report showed that the deceased suffered several stab wounds on the body of the deceased with dissection of the right jugular vein. The nature of the wounds is consistent with the contents of the confessional statement where the Appellant stated that he stabbed the deceased in the throat region and in other parts of her body. These pieces of evidence constitute sufficient independent evidence outside the confessional statement pointing to the truth of the contents of the confessional statement. The fact that the knife with blood stains mentioned by the third prosecution witness was not tendered in evidence did not derogate from the credibility and cogency of these pieces of evidence. See Adamu Vs State (2017) 7 NWLR (Pt 1565) 459, Chukwunyere Vs State (2018) 9 NWLR (1624) 249, Ameh Vs State (2018) 12 NWLR (Pt 1632) 99, Saleh Vs State (2018) LPELR 46337(SC), John Vs State (2019) LPELR 46936(SC).
The reliance placed by the lower Court on the confessional statement in finding that it was the act of the Appellant that caused the death of the deceased and that the Respondent proved the second ingredient of the offence of culpable homicide against the Appellant beyond reasonable doubt cannot be faulted.
The third ingredient of the offence of culpable homicide is whether the Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. It is settled law that in order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used, here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused. SeeIden Vs State (1994) 8 NWLR (Pt 365) 719, Isah Vs State (2017) LPELR 43472(SC), Peter Vs State (2018) LPELR 44357(SC), Richard Vs State (2018) LPELR 45157(SC).
The Appellant in the instant case stabbed the deceased severally on the body and with a stab wound to throat which dissected the right jugular vein and caused uncontrollable bleeding. In Owhoruke Vs Commissioner of Police (2015) 15 NWLR (Pt 1483) 557, the Supreme Court held a man who stabs another on the neck region with a bottle is deemed to have intended to kill or cause grievous bodily harm. There was cogent, credible and sufficient evidence led by the Respondent before the lower Court to prove beyond reasonable doubt that the Appellant caused the death of the deceased intentionally; with knowledge that death or grievous bodily harm was the probable consequence of his act. The finding of the lower Court that the Respondent proved the third ingredient of the offence of culpable homicide against the Appellant was on firm ground.
Counsel to the Appellant alluded to the defence of alibi which he said was raised by the Appellant and the failure of the Respondent to investigate same. Alibi is Latin for “elsewhere” It means the fact or state of having been elsewhere when an offence was committed. The defence of alibi is based on the physical impossibility of the accused being guilty by placing him in another location at the relevant time. In essence, alibi, as a defence, simply put, seeks to establish that at all times material to the commission of the offence, the accused person was nowhere near the locus of the crime, and ordinarily therefore he could not be expected to be involved in the physical execution of the crime alleged. It is trite that once the defence is properly raised by the accused person during investigations, it is the duty of the Police to investigate it. The legal principles governing the treatment of the defence of alibi have been stated and restated by the Supreme Court in several case law authorities, the latest of which includeDage Vs State (2019) 12 NWLR (Pt 1686) 204, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Opeyemi Vs State (2019) 17, NWLR (Pt 1702) 403, Sale Vs State (2020) 1 NWLR (Pt 1705) 205, Ugwu Vs State (2020) LPELR 49375(SC). But perhaps one of the best expose of the principles was that made by Achike, JSC, in the case of Ebre Vs State (2001) 12 NWLR (Pt 728) 617, where His Lordship stated:
“We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeing that when properly established, it has the far-reaching finality of exculpating the accused person from complete criminal responsibility. To take advantage of this defence, the accused person must give a detailed particularization of his whereabouts on the crucial day the offence which will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any, transpired at the said time and place(s). Obviously, such comprehensive information furnished by the accused person must, unquestionably, be capable of investigation by the Police should they wish to do so. A fair minded Tribunal would have no other option than to exercise its discretion of doubt in favour of the accused person. Furthermore, such defence must be timeously brought to the attention of the Police by the accused person, preferably in his extra-judicial statement to afford the Police an ample time to carry out its investigation. For the accused person to raise the defence while testifying at his trial is to deliberately deny the prosecution its right and duty to investigate the defence. Such a ploy cannot avail the accused…”
It is obvious from the contents of the confessional statement and the unchallenged evidence of the third prosecution witness that the Appellant did not raise the issue of alibi either in his extra judicial statement or in the course of the investigation into his commission of the crime. The records of appeal shows that it was in his oral evidence in his defence that the Appellant brought it up for the first time. The defence was thus unavailing to him. Additionally, the contents of the confessional statement and the unchallenged evidence of the first and third prosecution witnesses unequivocally located the Appellant at the scene of the crime as the culprit. It is settled law that where the prosecution leads strong and positive evidence which fixes the accused person at the scene of the crime, any plea of alibi raised by the accused person naturally collapses. See Olaiya Vs State (2010) 3 NWLR (Pt. 1181) 423, Afolalu Vs State (2010) 16 NWLR (Pt 1220) 584 and Sunday Vs State (2010) 18 NWLR (Pt 1224) 223.
The finding of the lower Court that the Respondent presented credible evidence to establish ingredients of the offence of culpable homicide punishable with death against the Appellant beyond reasonable doubt was correct. The third issue for determination is resolved against the Appellant.
In conclusion, this Court finds no merit in this appeal and it is hereby dismissed. The judgment of the High Court of Kano State delivered in Suit No. K/37C/2009 by Honorable Justice Amina Adamu Aliyu on the 27th of June, 2018, along with the sentence passed on the Appellant therein, is affirmed. These shall be the orders of the Court.
HUSSEIN MUKHTAR, J.C.A.: I have had the opportunity of previewing the judgment of my learned brother Habeeb Adewale Olumuyiwa Abiru, JCA just delivered. I totally agree with reasons therein and the conclusion that the appeal is audaciously bereft of merit.
For same reasons, which I adopt, the appeal has to be and is hereby dismissed. I subscribe to other orders as made in the judgment.
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 that the appeal is unmeritorious and ought to be dismissed. I too dismiss the appeal and affirm the conviction and sentence of the Appellant. I abide by all other consequential orders as contained in the lead judgment.
Appearances:
Aminu A. Ibrahim For Appellant(s)
H. H. Suleiman, A.D., with him, Sadiq Isa Fara, PSC, MoJ Kano For Respondent(s)