ZUBAIRU v. STATE
(2021)LCN/15894(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Thursday, March 11, 2021
CA/MK/8C/2019
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
AMINA ZUBAIRU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
ESSENTIAL INGREDIENTS FOR THE CRIMINAL OFFENCE OF MURDER
Now, for such a charge to ground a conviction, the prosecution must establish the following facts:
a. That the deceased died;
b. That it was the act of the accused that caused the death of the deceased; and
c. That the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was the probable consequence of the act or omission.
Some of the myriad of authorities on this principle of law includeIgabele vs. The State (2004) 15 NWLR Pt. 896, pg. 314; Okeke vs. The State (1999) 2 NWLR Pt. 590, pg. 246; Onah vs. The State (1985) 3 NWLR Pt. 12, pg. 235; Sule vs. The State (2009) 17 NWLR Pt. 1169, pg. 33 at 53; and Iliyasu vs. State (2015) 11 NWLR Pt. 1469, pg. 26. PER JOMBO-OFO, J.C.A.
THE DOCTRINE OF LAST SEEN
The “last seen together” theory arises where the cause of death is uncertain, in which case, the person who was seen last with the deceased will be called to question as to what happened to the deceased. See also the case ofAbelegah vs. State (2015) LPELR-24793(CA), where my noble brother Ogbuinya, JCA., held as follows:
“… The doctrine bears other appellations: “last seen theory” and “last seen together”. It is a doctrine of transnational/universal application, see Madu vs. State (2012)15 NWLR Pt. 1324, pg. 405. It is a presumptive doctrine. It postulates that the law presumes that a person last seen with the deceased bears full responsibility for his death, if it turns out that the person last seen with him is dead. The theory has received the imprimatur of the Supreme Court in an avalanche of cases, Emeka vs. State (2001) 14 NWLR Pt. 734, pg. 666; Igabele vs. State (2006) 6 NWLR Pt. 975, pg. 100; Archibong vs. State (2006) 14 NWLR Pt. 1000, pg. 349; Mohammed vs. State (2007) 11 NWLR Pt. 1045, pg. 303; Isma’il vs. State (supra); Babatunde vs. State (2014) 2 NWLR Pt. 1391, pg. 298. The doctrine is a qualification to the presumption of innocence of an accused as enshrined in Section 36(5) of the Constitution, as amended … Where the cause of death is known, the doctrine loses efficacy and ceases to apply, see Mbang vs. State (2009) 18 NWLR Pt. 1172, pg. 140; Njoku vs. State (2013) 2 NWLR Pt. 1339, pg. 584, 24-25, paras. F-E. PER JOMBO-OFO, J.C.A.
WHETHER OR NOT CIRCUMSTANTIAL EVIDENCE IS SUFFICIENT TO GROUND A CONVICTION
In the decision of this Court in Amao vs. State (2018) LPELR-44167(CA), per Ndukwe-Anyanwu, JCA. (Pp. 14-15, paras. D-F), it was held that:
“Circumstantial evidence is sufficient to ground a conviction only where the inferences drawn from the whole history of the case points strongly to the commission of the crime by the accused. Nwaeze vs. State (1996) 2 NWLR Pt. 428, pg. 1; Akinmoju vs. State (2000) 4 SC. Pt. 1, pg. 64; Durwode vs. The State (2000) SC. Pt. 1, pg. 1. For circumstantial evidence to ground a conviction, it must lead to one conclusion namely: the guilt of the accused person. Where there are other possibilities that others other than the accused had the opportunity of committing the offence with which the accused was charged, such an accused cannot be convicted with the offence. Ubani vs. State (2003) 18 NWLR Pt. 851, pg. 22. … [Emphasis mine].
See also Sani vs. State (2017) 8 NWLR Pt. 1622, pg. 412; Ebenehi vs. State (2009) LPELR-986(SC); (2009) 6 NWLR Pt. 1138, pg. 431; Mamman vs. State (2015) LPELR-25963(CA); Ukorah vs. State (1977) LPELR-3345(SC). PER JOMBO-OFO, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
In the case of Mohammed vs. Kano N.A (1968) All NLR 411 at 413, Ademola C.J.N. (of blessed memory) while considering the meaning of fair hearing said:
“It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case.”
See also the case of Ariori vs. Elemo (1983) LPELR-552 (SC) where fair hearing was defined to mean:
… a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause …
The right to fair hearing as earlier noted is constitutionally guaranteed under Section 36 (1) of the Constitution of Nigeria, 1999 (as amended). Thus, whenever there is breach, it attracts consequences. A breach of the right to fair hearing renders the proceedings in which it was committed as well as all subsequent proceedings and any resultant decision therein a nullity, notwithstanding how meticulous the proceeding would have been or how sound the resultant decision would have been on the merit. They are all a nullity. See Ekpenetu vs. Ofegobi (2012) 15 NWLR Pt. 1323, pg. 276; Amadi vs. INEC (2013) 4 NWLR Pt. 1345, pg. 595; Ovunwo vs. Woko (2011) 17 NWLR Pt. 1277, pg. 522; Pan African Incorporation vs. Shoreline Lifeboat Ltd. (2010) All FWLR Pt. 524, pg. 56; Action Congress of Nigeria vs. Sule Lamido (2012) 8 NWLR Pt. 1303, pg. 560 @ 593; and Judicial Service Commission of Cross River State vs. Dr. (Mrs.) Asari Young (2013) 11 NWLR Pt. 1364, pg. 1. PER JOMBO-OFO, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of the High Court of Nasarawa State (hereinafter to be known as the trial/lower Court), coram Hon. Justice Aisha B. Aliyu, J., which convicted and sentenced the accused/appellant to death by hanging under Section 221 of the Penal Code Law of Northern State, delivered 11th December, 2018. (See pages 174 – 198 of the record of appeal).
FACTS LEADING TO THE APPEAL
The one-count charge preferred against the accused on 15th July, 2015 reads thus:
THAT YOU, AMINA ZUBAIRU ‘F’ (wife of late Alh. Zubairu K. Adamu- the Gom Mama) between 11:00pm of 14th February, 2014 and 4:30am of 15th February, 2014 at the residence of Gom Mama in Wamba town, Wamba L.G.A. of Nasarawa State within the jurisdiction of this Court did commit Culpable Homicide punishable with death in that you caused the death of one Alhaji Zubairu K. Adamu by injecting him with an overdose of Dipyrone with the knowledge that death would be the probable consequence of your act and to be sure he was dead, broke his neck and you thereby committed an offence punishable under Section 221 of the Penal Code.
In order to prove its case at the trial Court, the respondent/prosecution called a total of nine (9) witnesses and tendered in evidence seven (7) exhibits marked ‘A’ to ‘G’ respectively. The exhibits consist of the following: forms issued to PW7 (the Consultant Pathologist who performed autopsy on the deceased), form for scientific analysis, statement and additional statement of the accused person, one bedsheet, one bottle of snipper and used sanitary pad.
At the close of the prosecution/respondent’s case on 27th June, 2016, the accused/appellant applied to address the lower Court on No Case to Answer, consequent upon which they filed their address on 28th June, 2016. The prosecution on their part filed their response to the No Case Submission on 26th September, 2016. (See pages 65 – 87 of the record of appeal)
The No Case Submission was however overruled by the trial Court on 31st October, 2016 and the accused opened their defence on 25th April, 2017, calling 3 (three) witnesses to wit DW1, DW2 and DW3 before closing their case on 28th March, 2018. (See pages 141 – 165 of the record of appeal). Counsel on both sides filed and exchanged written addresses.
In its judgment delivered 11th December, 2018, the learned trial Court convicted the accused/appellant and sentenced her to death by hanging. (See pages 174 – 198 of the record of appeal).
Disturbed by the judgment, the accused/appellant appealed against same vide their Notice of Appeal filed on 7th March, 2019. (See pages 199 – 204 of the record of appeal).
In compliance with the rules and practice of this Court, parties filed and exchanged their respective briefs of argument. The appellant’s brief of argument dated 5th May, 2020, filed 5th June, 2020 and deemed properly filed and served on 8th June, 2020, was settled by Sunday S. Obende, Esq. The respondent’s brief dated 15th September, 2020, filed 16th September, 2020 and deemed properly filed and served 18th January, 2021 was settled by Assoc. Prof. Abdulkarim A. Kana (Hon. Attorney-General, Nasarawa State).
From the 7 (seven) grounds of the Notice of Appeal, the learned counsel for the appellant crafted the following 2 (two) issues for determination:
i. Whether the prosecution proved the charge against the appellant? (Grounds 1, 6 and 7 of the Notice of Appeal).
ii. Whether the trial Court afforded the appellant a fair hearing in the determination of the charge? (Grounds 2, 3, 4 and 5 of the Notice of appeal).
The respondent on their side donated the following lone issue for determination of the appeal:
Whether the lower Court rightly convicted and sentenced the appellant to death by hanging under Section 221 of the Penal Code. (Grounds I, II, III, IV, V, VI and VII of the Notice of Appeal).
I think that the issues raised above by the appellant capture the essence of this appeal. I shall therefore adopt them for the determination of the appeal.
ISSUE 1 (ONE)
Whether the prosecution proved the charge against the appellant?
The appellant submitted that the prosecution failed to establish the cause of death of the deceased as enunciated in the case of Iliyasu vs. State (2015) 11 NWLR Pt. 1469, pg. 26 and thus, ought not to link the death to the act of the appellant. See also Ochiba vs. The State (2011) LPELR-8245(SC), (2011) 17 NWLR Pt. 1277, pg. 663; Suleiman vs. Kano State (2014) LPELR-23601(CA); Lori vs. State (1980) 8-11 SC 81, 95-96; Udosen vs. State (2007) 4 NWLR Pt. 1023, pg. 125; Oche vs. State (2007) 5 NWLR Pt. 1027, pg. 214; and Ekpoisong vs. State (2009) 1 NWLR Pt. 1122, pg. 354. The appellant contended that, without making a specific finding as to the cause of death of the deceased, the trial Court peremptorily concluded that the appellant was responsible for the death of the deceased. The appellant submitted that no evidence was led in support of the particulars of the offence charged in count one of the charge.
Learned counsel for the appellant further canvassed that the evidence of the nine witnesses called by the prosecution were contradictory and inconsistent with each other. That, regarding the snipper container, it was only the PW1, PW2 and PW3 who testified about same, while the evidence of PW7 as an expert witness did not make any reference to it as part of his findings. He submitted that the evidence of PW7 which the trial Court unevenly evaluated, did not conclude on the cause of death. That flowing from the evidence of PW7, the secondary cause of death cannot be said to have been responsible for the death of the deceased. The appellant also submitted that the trial Court failed to consider the possibility of any person intervening after the accused left the room which is the doctrine of last seen and that this sufficiently led to a miscarriage of justice. Learned counsel contended that the prosecution led evidence through the PW7, who testified that the cause of death of the deceased is the fracture or dislocation of the cervical bones (neck). To that extent, the doctrine or theory of last seen upon which the prosecution based its case and upon which the appellant was convicted ceased to have that efficacy. See Amao vs. The State (2018) LPELR-44167(CA); and Ikomi vs. State (1986) LPELR-1482(SC) wherein the last seen theory was found and held applicable. Recalling the cases of Ebenehi vs. The State (2009) LPELR-986(SC); (2009) 6 NWLR Pt. 1138, pg. 431; Mamman vs. The State (2015) LPELR-25963(CA); and Valentine Adie vs. The State (1980) LPELR-176(SC), the learned counsel canvassed that, the trial Court wrongly relied on circumstantial evidence, without satisfying itself that the acclaimed circumstantial evidence was sufficient proof. He also submitted that the evidence of the prosecution is shrouded in speculations and it is not the duty of the Court to speculate or embark on conjectures in an attempt to prove the guilt of the appellant.
The learned counsel for the appellant went on that the evidence by the prosecution as to the point where the injection was administered was contradictory. That what the PW1, 3 and 7 would want the Court to believe as correct is that there were injection marks on the deceased, but the evidence regarding the point where the injections were administered were contradictory. There was also no evidence to rule out the possibility that the deceased could not have self-inflicted himself with the said marks, using the other hand. He contended finally that, not only were there gaps in the prosecution’s case, there were other possibilities that were not ruled out as to who caused the death of the deceased which were not considered by the trial Court. He then urged on us to resolve this issue in favour of the appellant.
ISSUE 2 (TWO)
Whether the trial Court afforded the appellant a fair hearing in the determination of the charge.
The learned counsel for the appellant submitted herein that, regardless of the fact that the trial Court was satisfied that the appellant was an illiterate who needed for the evidence to be interpreted to her from Hausa to English and vice versa, there were certain dates when the prosecution witnesses gave evidence in English language and no interpreter was provided for the accused. That when the PW 1, 4, 5, 6, 7, 8 and 9 testified, and they did so in English language, the trial Court was in breach of the appellant’s constitutional right to the services of interpreter. See Muri Olore vs. Inspector General of Police (2017) LPELR-42657(CA); Abdullahi Ibrahim vs. The State (2013) LPELR-21883(SC), (2014) 3 NWLR Pt. 1394, pg. 305; and Shema vs. FRN (2017) LPELR-44425(CA).
Learned counsel also canvassed that in the course of the proceedings, the defence had objected to the admissibility of some documents sought to be tendered in evidence. Part of the appellant’s objection was that the documents did not form part of the proof of evidence and were not frontloaded or served on the appellant before they were tendered. The trial Court however admitted them in evidence. Counsel submits that the failure or refusal of the prosecution to avail the appellant with all the evidence that it proposed to rely upon in proof of its case, deprived the appellant of the constitutionally guaranteed right of fair hearing.
The learned counsel for the appellant further submitted that in the consideration of the evidence adduced by the parties, the lower Court chose not to ascribe any probative value to the evidence of the appellant’s witnesses i.e. the DW1 and DW2. He also contended that none of the PW1, PW2 and PW3 who are the son, daughter and brother respectively of the deceased, gave direct eye witness account implicating the appellant as responsible for the death of the deceased. That the lower Court did not apply equal consideration or treatment of evidence of the prosecution and the defence witnesses and that this failure is a violation of the appellant’s right to fair hearing. The learned counsel submitted that where a party has been denied fair hearing, the correctness or otherwise of the decision becomes irrelevant, the entire proceedings are a nullity and must be set aside. See Udo vs. Cross River State Newspaper Corporation (2001) 14 NWLR Pt. 732, pg. 116, 151, paras. D-E, to the effect that once an appellate Court comes to the conclusion that a party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the decision is liable to be set aside.
Learned counsel urged on us to find that the appellant’s right to fair hearing was violated by the decision of the lower Court and thus, resolve this issue in favour of the appellant.
On the converse, the learned counsel for the respondent submitted that the trial Court having appropriately appreciated the nature of the evidence of the respondent vis-a-vis the defence of the appellant and Exhibits “A” to “G” which were duly admitted, relied on same to convict the appellant. Placing reliance on the cases of Brown & Ors. vs. State (2011) LPELR-4465(CA) Pt. 32-33, para. E; and Adebayo vs. Nigerian Navy (2018) LPELR-45957(CA), the learned counsel submitted that an expert, skilled in a particular matter can furnish the Court with scientific or other information of a technical nature that is likely to be outside the experience and knowledge of the Judge. Counsel contended that the appellant is connected to the death of the deceased having regard to the evidence of PW1, PW2, PW7 and from reasonable inference from the surrounding circumstances. The learned counsel canvassed that the respondent provided sufficient evidence which the trial Court considered alongside the defence of the appellant to come to the conclusion that the appellant was indeed guilty as charged. They argued that the respondent gave evidence of the appellant to be a medical personnel who often prescribed and administered medicine on family members such as the deceased late baby boy and the late mother of the boy.
The respondent on further submission stated that, there was ample corroboration of facts in the evidence of the respondent’s witnesses showing that the appellant was the last person to be in the company of the deceased (her late husband). That the doctrine of last seen raises a rebuttable presumption to the effect that a person last seen in the company of a deceased person bears the responsibility for his or her death. Counsel canvassed that the respondent having discharged the evidential burden as required by law at the trial, the burden shifted to the appellant to cast reasonable doubt in the case of the respondent by preponderance of probabilities which the appellant failed woefully to do. Relying on the case of State vs. Oladotun (2011) 10 NWLR Pt. 1256, pg. 542, 547, counsel submitted that the trial Court is duty bound to act on the unchallenged and uncontroverted evidence before it.
The respondent also submitted that the charge in this case sufficiently disclosed that a crime was committed and that the appellant is linked to the crime. The proof of evidence served on the appellant further gave sufficient particulars as to the nature of the offence against the appellant. See Sections 206 and 382 of the Criminal Procedure Code and Agbo vs. State NSCQLR 25 (2006) 136. It was the further contention of the respondent that the appellant failed to disclose any breach of natural justice to buttress their allusion to the breach of fair hearing, more so, as the said appellant was represented by counsel throughout the proceedings at the lower Court. See the case of Udosen vs. State (2007) LPELR-3311(SC).
Premised on the foregoing, the respondent urged on us to dismiss this appeal and affirm the conviction and sentence of the appellant to death by hanging under Section 221 of the Penal Code.
RESOLUTION OF ISSUE 1 (ONE)
Whether the prosecution proved the charge against the appellant?
The appellant was arraigned on a single charge thus:
THAT YOU, AMINA ZUBAIRU ‘F’ (wife of late Alh. Zubairu K. Adamu- the Gom Mama) between 11:00pm of 14th February, 2014 and 4:30am of 15th February, 2014 at the residence of Gom Mama In Wamba town, Wamba L.G.A. of Nasarawa State within the jurisdiction of this Court did commit Culpable Homicide punishable with death in that you caused the death of one Alhaji Zubairu K. Adamu by injecting him with an overdose of Piroxicam and Dipyrone with the knowledge that death would be the probable consequence of your act and to be sure he was dead, broke his neck and you thereby committed an offence punishable Section 221 of the Penal Code. [Emphasis mine].
Now, for such a charge to ground a conviction, the prosecution must establish the following facts:
a. That the deceased died;
b. That it was the act of the accused that caused the death of the deceased; and
c. That the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was the probable consequence of the act or omission.
Some of the myriad of authorities on this principle of law includeIgabele vs. The State (2004) 15 NWLR Pt. 896, pg. 314; Okeke vs. The State (1999) 2 NWLR Pt. 590, pg. 246; Onah vs. The State (1985) 3 NWLR Pt. 12, pg. 235; Sule vs. The State (2009) 17 NWLR Pt. 1169, pg. 33 at 53; and Iliyasu vs. State (2015) 11 NWLR Pt. 1469, pg. 26.
In the instant case, the death of the deceased is not in dispute. It is an open fact that the deceased Alhaji Zubairu Adamu the Gwom mama, died between the hours of 11:00pm of 14th February, 2014 and 4:30am of 15th February, 2014. However, the major bone of contention is whether it was the act or omission as the case may be, of the appellant that caused the death of the deceased and if so, whether the act was carried or meted out with the intention to kill or even cause grievous bodily harm to the deceased.
In order to determine the cause of the death, we have to tap deep into the evidence of PW7 being the Consultant Pathologist who carried out a post mortem examination on the body of the deceased. As can be gleaned from his evidence, the deceased had two injection marks on both arms which they call before death reaction (anti ultimatum). The neck of the deceased was highly mobile. Though this was demonstrable evidence of fracture of the neck, there were no visible abrasions on the neck. From the forensic lab results which were tendered in evidence through the PW7, he testified that Exhibit D which contained the urine of the deceased was found to contain a mixture of feldene and anaisin. PW7 attributed the cause of death of the deceased to fracture and dislocation of “celebrant” (the neck bones). Regarding the secondary cause of death, the PW7 in his own words stated thus:
“We queried toxicity of the two drugs and two described the manner of death as homicide the mechanism of death is called asphyxia (means) interference with respiration (breathing) …”
As an expert witness, the PW7 opined that the injection site was done by a health worker or someone who has knowledge of medicine. That a combination of the two drugs analgin and feldene are mechanical obstruction to breathing and the outcome is sudden death. He admitted under cross examination that when a medical report is queried, it means that the medical practitioner is not 100% sure of the outcome. He also admitted that without the two substances, the neck fracture was enough to cause death. (See pages 2 – 7 of the Supplementary Record of Appeal which was deemed properly compiled and transmitted to this Court on 8th June, 2020). The witness also admitted that the neck injury could be self-inflicted by way of suicide. That, a combination of both substances could cause death, likewise the neck fracture.
The son of the deceased Abduliahi Zubairu in his evidence as the PW1 said that he was woken from sleep around 4.33am by his stepmother (the appellant) and asked to come and see what happened. She took him straight to his father’s room and pointed at his father who was lying dead. The said appellant also pointed at the deceased G.S.M. which was on a stool with a draft message which read “Fatimah I can’t bear this any more no body kill me”. The appellant further pointed at sniper insecticide. PW1 said he examined his father who had injection marks on both hands in his elbows. He identified the appellant to be a Medical Practitioner who treats them when they fall sick. She would prescribe drugs and even give injections to them. He further testified that his late father was preparatory to marrying another wife by name Fatimah on 15th February, 2014 while he died on 14th February, 2014 being the eve of the wedding. PW1 also testified that, with his father’s demise they went to a suck away in his father’s compound and they saw and recovered a needle/string and a used sanitary pad which they handed over to the I.P.O. Under cross examination he said he would not know who dropped the used “stringy”/needles. (See pages 116 – 118 of the record of appeal).
The PW2 Aminatu Zubairu Zang on his part testified that the accused/appellant sent her daughter (Bilkisu Adamu Zang) to go and buy a “stringy” from Ifenyi. PW2 said that his father said Amina told him to buy medicine for tiredness, Analgin so she can inject him. He said he saw injection marks on his father’s neck and elbows.
Under cross examination, the PW2 said that it was the appellant who asked the deceased to send for the Analgin injection. PW2 further admitted that the appellant had treated her in the past by giving him drugs and injections and that he did not die. (See pages 118 – 121 of the record of appeal).
The PW3, one Isa Adamu identified the appellant as the wife of his senior brother (Zubairu Adamu). He said his wife called him up on the phone around 4am to tell him that his brother was dead. He rushed to the scene and saw injection marks on the deceased’s neck and elbows and that they put sniper in the mouth of the deceased. Sarkin Wamba was called in as well as the D.C.O. Wamba. They examined the body of the deceased and thereafter took it to Jos.
PW3, under cross examination testified that he did not sleep in the compound of the deceased and as such did not know what happened to the deceased. (See pages 121 to 123 of the record of appeal).
PW4, Sgt. Ado Bature testified primarily that upon receipt of report at Wamba Police Station, where he was on duty on 15th February, 2014, they moved to the residence of the deceased and saw the dead body. The corpse was later taken to the University of Jos Teaching Hospital for autopsy. 3 Forms issued by the Magistrate Court were tendered and admitted in evidence through the PW4 and marked Exhibits C1, C2, C3 and D respectively. (See page 125 of the record of appeal). Exhibit “L” which the lower Court erroneously ascribed as being tendered through the PW6, was rather tendered and admitted in evidence through the PW4. (See pages 1 – 6 of the Supplementary Record of Appeal transmitted out of time to this Court on 2nd October, 2020 but deemed properly transmitted on 18th January, 2021).
The PW5 (Inspector Emmanuel Solo). He gave evidence that the autopsy which was performed at the Jos Teaching Hospital was done in his presence. Some specimen samples were removed from the body of the deceased and packaged. The PW5 together with a relation of the deceased known as Polycarp, were detailed to take the specimen for lab analysis in Lafia.
When he was cross examined, the PW5 testified further that Abdulahi Zubairu brought empty syringes and a female sanitary towel which were handed over to the detectives. He admitted that he was not present when the deceased gave up the ghost.
The PW6, one Insp. Musa Alkasm of the Homicide Section State C.I.D., Lafia, testified that he was on duty when the case of culpable homicide was transferred to them from Wamba. He remanded the suspect, cautioned her in English language, which caution she understood and obtained statement from her voluntarily after it was read over to her and she signed same as correct, while the PW6 counter signed it. They visited the scene of crime at Wamba where they discovered a bedsheet at the bed where the deceased died and a bottle of sniper very close to the bed. He went further to state that a Nokia phone Asha 200 was also discovered. They also discovered a women’s menstrual pad, with four used syringe and needles in a septic tank close to the room of the suspect. There was a bottle of analgin injection and a bottle of novineparacicame injection, all these items were subsequently sent to forensic lab for thorough investigation and analysis. He stated also that, at the home of the deceased, there was a draft message which was drafted on the 14th and 15th February, 2014 which message reads: “Please no body killed me, I killed myself”. The cell Nokia Asha phone and the print out of the draft message were collectively marked as Exhibit ‘G’. He obtained statements from the suspect and the said statements and additional statements were tendered in Court through the PW6 and thereafter admitted in evidence as Exhibits F1 and F2 respectively. Also tendered through the PW6 and equally marked jointly as Exhibit ‘’G’’ are one bed sheet, one bottle of sniper and a used sanitary pad.
In the course of cross examination, the PW6 testified that Exhibit “G” was drafted at 11.20pm on 14th February, 2014.
One Ifenyi Wilfred, a marketer of pharmaceutical drugs testified as the PW8. He said that on 14th February, 2014 one Mr. James Paul came to his shop with a prescription sheet to purchase some drugs. He bought feldene capsules, analgesic injection and syringes and needles. He identified the suspect as a customer who comes to his shop to buy drugs, likewise Mr. James Paul.
Under cross examination PW8 admitted that the suspect came to buy items such as Pads, Jik, Dettol, Omo, Paracetamol.
The PW9 (James Paul), a driver testified that he had been employed as a pilot for about 2 to 3 months by the late Gwom Mama. He said he was registered to be driving the wife. He went on that on 14th February, 2014 the Gwom Mama sent him to go and buy feldene and analgene injection for him. He bought the drugs and on returning gave them to the Gwom Mama. The king looked at the purchases and was satisfied and he the PW9 left.
When he was cross examined, the PW9 testified that it was the king who sent him with the prescription to buy the drugs for him and when he came back the king verified the drugs himself. PW9 stated that he was not there when the chief was dying and that he did not know what happened to him. (See pages 137 – 138 of the record of appeal).
From the foregoing evidence of the respective prosecution witnesses, which evidence I have taken time to sieve through, it is manifest that the cause of the death of the deceased remained shrouded in uncertainty in that it could have been as a result of the toxicity of the two drugs and/or as a result of the fractured neck. Much as the PW1 (son of the deceased) identified the appellant to be a Medical Practitioner who treats them when they fall sick, he gave no evidence to show that the appellant administered any treatment on the deceased on the day he died. The PW4, 5 and 6 as the respective investigating police officers, testified that used injection needles/syringes were recovered by a septic tank in the deceased’s compound. They did not pin or link the recovered needles/syringes as those used by the appellant to administer any injection that left marks on the deceased.
The PW7 testified that his forensic lab result showed that the urine sample in Exhibit D contained a mixture of feldene and anaisin (Piroxicam and Dipyrone), consequent upon which he queried the toxicity of the two drugs. He attributed the primary cause of death of the deceased to fracture and dislocation of “celebrant” (the neck bones). Regarding the secondary cause, the PW7 in his own words stated thus:
“We queried toxicity of the two drugs and two described the manner of death as homicide, the mechanism of death is called asphyxia (means) interference with respiration (breathing) …”
As an expert witness, the PW7 opined that the injection site was done by a health worker or someone who has knowledge of medicine. That a combination of the two drugs, analgin and feldene are mechanical obstruction to breathing and the outcome is sudden death. This assertion does not in any way portray the appellant as the only health worker with knowledge of medicine who was present at the gathering at the deceased’s compound that evening. It is common ground that the deceased was to get married the next day and some of his family members and friends had gathered at his residence the day before and some even spent their night there.
Even the evidence of the PW2 Aminatu Zubairu Zang in this regard is nothing to write home about, given that his is more or less a hearsay evidence for he said that his father said that Amina told him to buy medicine for tiredness, Analgin so she can inject him. Being an information he purportedly got from the deceased, the PW2 failed to state the circumstances that led to the deceased telling him that it was the appellant who asked him to buy analgin for her to inject him with. He also did not state the time and/or place the said information was passed on to him and what prompted the passing of the said information to him. The PW2’s testimony that it was the appellant who asked the deceased to send for the Analgin injection is thus unfounded and unreliable in the circumstance. In the case of Emmanuel Ochiba vs. The State (2011) 17 NWLR Pt. 1277, pg. 663, the Supreme Court made it clear that:
“In every case where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established and proved beyond reasonable doubt. In the course of events, the cause of death must just be proved. Where the cause of death is ascertained, the nexus between the cause of death and the act or omission of the accused alleged to have caused it must be established. These are factual questions to be answered by the consideration of the evidence. In our adversarial system of criminal justice, the prosecution must prove its case beyond reasonable doubt with vital and relevant evidence it can produce. In the process, it must also produce vital witnesses to testify for the prosecution. [Underlining for emphasis].
See further the authorities of Suleiman vs. Kano State (2014) LPELR-23601(CA); Lori vs State (1980) 8 – 11 SC, 81 at 95-96, Udosen vs. State (2007) 4 NWLR Pt. 1023, pg. 125; Oche vs. State (2007) 5 NWLR Pt. 1027, pg. 214; and Ekpoisong vs. State (2009) 1 NWLR Pt. 1122, pg. 354.
The PW7 testified that the death could have resulted from toxicity of the 2 drugs (Piroxicam and Dipyrone) or from the fracture or dislocation of the neck. Be that as it may, neither the act of neck breaking nor that of injecting the drugs into the deceased is attributable or traceable to the appellant. Granted, though not conclusive that the deceased was injected with a combination of both drugs, any of the persons who spent the night at the deceased’s compound could have done the deed. Thus, the assertion by the PW7 that the injection site was created by a health worker or someone knowledgeable in medicine, cannot suffice. Again, no evidence was led to show that the appellant of all those present in the compound that night, was the only one with knowledge of medicine. Regarding the dislocation of the cervical bones which the PW7 opined to be the primary cause of death, he further admitted that the injury could be self-inflicted.
The prosecution failed to zero in on one single cause out of the two possibilities that could have brought about the death of the deceased. It is clear from the prosecution’s case that it lacked conclusiveness as to which of the two possible causes terminated the life of the deceased. There is just no way a charge of culpable homicide will succeed when the actual cause of death of the deceased has remained elusive and undetermined. The absence of the specific cause of death has created a yearning gap in the case of the prosecution and the appellant cannot be yoked with an unspecified cause of death of the deceased. Besides, there was no linkage of the two drugs to the appellant either to the effect that she injected them into the system of the deceased or that she caused the injections to be administered on him.
In the face of the foregone evidence of the prosecution witnesses, it was wrong of the lower Court to on its own and without evidence to that effect, hold that the appellant had the opportunity to commit the offence charged. This finding is in total disregard of the presence of friends and family members of the deceased who came, with some spending the night, preparatory to the wedding scheduled for the next day.
The DW1 Aishatu Garba Saidu, a childhood friend of the appellant in her evidence testified that on that 14th February, 2014 which was a Friday, there were many of them in the house of the deceased preparing for the wedding of the deceased which was to take place the next day. They were up till midnight when they, together with the appellant went into her room to sleep. They woke up in the morning around 4am and continued with their cooking while the appellant boiled water which she took to the deceased bathroom for him to bath with. Soon after, the appellant came out and went to the window of Audu, the son of the deceased and called him to come out and they both went to the room of the deceased. Other people joined but stood outside. The deceased was dead. Appellant was later accused of killing her husband.
The DW2 Zubairu Halilu Zanga, a daughter to the appellant and step daughter to the deceased, testified in summary that on the evening of 14th February, 2014 she left her school with her junior sister Aisha Halilu Zanga for the wedding of their step father at Wamba. They got to the house and met many people including their mother the accused/appellant. While their father was outside with some visitors, their aunties came. DW2 later slept in her mother’s room with her and her other aunties and cousins. DW2 slept off at between 1.30am and 2am. In the morning while the DW2 was still lying down every other person went out until she was drawn outside by the screaming of people that the deceased has been killed. As the DW2 tried to get into the deceased section, she saw Matan holding a bottle of sniper and screaming that he was killed.
On the part of the DW3 i.e. the accused/appellant herself, she testified in chief that she is a staff of Primary Health Care, Farin Ruwa and that the deceased was her husband. She testified that on 14th February, 2014 at their residence at Old Jos Road, Wamba, people were trooping in both male and female to help them with the wedding preparation of her said husband. The male guests were received at the deceased’s apartment while the female guests were at the DW3’s apartment. At about 8 to 8.30pm, the DW3 had followed the deceased to his bedroom where he was listening to Hausa version of the news. He asked how the preparations were coming on. She responded that they were yet to be concluded. Thereafter, they said good night to each other and the DW3 exited his room through the same entrance she came in.
When the DW3 was being cross examined, she testified that when her husband called her to his room that all the doors were open and that he did not lock the door even after she left his room. As the DW3 was leaving the room, she cautioned Amina Musa and others who were making noise as their father was listening to news. DW3 thereafter returned to where they were cooking. At the place they were cooking, were the DW1 Matin Aiki Ruwa Rhoda, Hassana Abubakar a sister to His Royal Highness, Zuaira Musa with her mother Aisha Musa with the wives of the deceased’s younger brother, and they continued with the preparation until well after 12 midnight. As they were retiring to bed, the DW3 with Aisha her friend, Hassana Abubakar sister to Alhaji Matan AikiSaidi, Ruwa Rhoda all slept in DW3’s apartment. Cooking resumed in the morning from around 4am. While some of the women were cooking outside, the DW3 used an electric kettle to boil water inside for the deceased as instructed the night before. When the DW3 was taking the bath water in a pail to her husband, she went through the dining room where she saw and greeted some people who were already there. She passed through the open door to the bathroom and dropped the water. She came out and switched on the light in the deceased bedroom only to see him lying on the mattress with the upper part of the body on the mattress while the lower part was on the floor. DW3 called him and said “Zaki what kind of lying down is this?”. The deceased kept quiet. She called him severally but got no response from him. DW3 went and touched him and everywhere was stiff. She screamed and then rushed straight to Audu’s section and knocked on his window. Audu came out and they rushed to the deceased bedroom. Zuaira one of those who gathered there lifted the deceased and said “they infected him, look at his hands. They killed him”. PW1 Audu took a sniper container. They said this was administered on him.
Now, all the foregone narration point to one fact and that is, that there were untold number of guests present at the deceased’s residence on the night he passed away. The door leading to the deceased bedroom was open and free for ingress and egress throughout the night. There is no conclusive evidence that the appellant was the last person to be seen with the deceased before his passing on. Granted, though not conceded that the deceased died from the injection of the two drugs (feldene and analgin), the said drugs could have been administered onto him by any of the guests that spent the night in the compound. Likewise, the cervical dislocation, which the Pathologist even testified could be self-inflicted. In a situation of this manifest doubt as to the cause of death, the death of the deceased cannot in the circumstances be attributed to the appellant as if she was the only one who had access to him on that fateful night. The appellant had as much opportunity as any of the guests to commit the alleged offence. From the unrebutted evidence of the appellant, she left the deceased the previous night while he was listening to news and as she was leaving, she even admonished some of the people there to minimize their noise making as the deceased was listening to news. Added to this, there is no evidence that the door leading to the deceased bedroom was locked and so there was clear and unhindered ingress and egress for any criminally minded person among the guests to go in and carry out the nefarious act. Even the “last seen together” theory cannot fly in the face of the instant appeal. This is because, the apex Court in the authority of Madu vs. State (2012) 15 NWLR Pt. 1324, pg. 405, per Ariwoola, JSC., had spelt out the context in which the presumption of last seen theory can be invoked to be as follows:
In the Indian case of Rajashkhanna vs. State of A. P. (2006) 10 SCC 172, the Indian Supreme Court noted as follows: “The last seen theory, comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.” However, in S. K. Yusuf vs. West Bengal (2011) the same Supreme Court after referring to its earlier stand above further held that where there is a long time-gap between “last seen together” and the crime, and there is possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”. Even if time gap is less and there is no possibility of others intervening, it is said to be safer to look for corroboration.
With the unchallenged evidence as already laid out above to wit:
a) That there were a lot of people in the compound, who had come for the impending wedding ceremony;
b) That the door to the room of the deceased was not locked hence, any of the guests could have easily gained access into the said room;
c) That there were people who slept in the parlour of the unlocked room of the deceased;
d) That the deceased had earlier in the day sent PW9 (James Paul) to buy analgin, injection, feldene and syringes;
e) That the analgin, injection, feldene and the syringes were handed over to the deceased when they were bought; and
f) That there was the possibility of either or both of the two purported acts to have been self-inflicted;
the “last seen together” theory was bound to fail and it did indeed fail. See also the authorities of Igabele vs. State (2006) 6 NWLR Pt. 975, pg. 100; Obosi vs. State (1965) NMLR 140; Nwaeze vs. State (1996) 2 SCNJ 61; Gabriel vs. State (1989) 3 NWLR Pt. 122, pg. 457; and Adeniji vs. State (2001) 87 LRCN 1970.
As rightly submitted by the learned counsel for the appellant, the failure of the trial Court to consider the possibility of any person intervening after the accused left the room sufficiently led to a miscarriage of justice. Neither any of those who slept within the range of the deceased room, nor the prosecution witnesses gave evidence of having heard a shout or observed a struggle while the appellant was in the room of the deceased such as to suggest that she, the appellant was responsible for the act that took away the life of the deceased. The “last seen together” theory arises where the cause of death is uncertain, in which case, the person who was seen last with the deceased will be called to question as to what happened to the deceased. See also the case ofAbelegah vs. State (2015) LPELR-24793(CA), where my noble brother Ogbuinya, JCA., held as follows:
“… The doctrine bears other appellations: “last seen theory” and “last seen together”. It is a doctrine of transnational/universal application, see Madu vs. State (2012)15 NWLR Pt. 1324, pg. 405. It is a presumptive doctrine. It postulates that the law presumes that a person last seen with the deceased bears full responsibility for his death, if it turns out that the person last seen with him is dead. The theory has received the imprimatur of the Supreme Court in an avalanche of cases, Emeka vs. State (2001) 14 NWLR Pt. 734, pg. 666; Igabele vs. State (2006) 6 NWLR Pt. 975, pg. 100; Archibong vs. State (2006) 14 NWLR Pt. 1000, pg. 349; Mohammed vs. State (2007) 11 NWLR Pt. 1045, pg. 303; Isma’il vs. State (supra); Babatunde vs. State (2014) 2 NWLR Pt. 1391, pg. 298. The doctrine is a qualification to the presumption of innocence of an accused as enshrined in Section 36(5) of the Constitution, as amended … Where the cause of death is known, the doctrine loses efficacy and ceases to apply, see Mbang vs. State (2009) 18 NWLR Pt. 1172, pg. 140; Njoku vs. State (2013) 2 NWLR Pt. 1339, pg. 584, 24-25, paras. F-E.
For the prosecution in the instant scenario to have called into play, the doctrine of “last seen together”, raises the presumption that the cause of death remained uncertain and undetermined by it. The prosecution has been found to lead no evidence showing that no other person gained access to or saw the deceased in his room after the appellant left on the invitation of the said deceased. In other words, there was no direct and irresistible evidence that only the appellant had access to the deceased that fateful night. Even the PW2 who was amongst those who slept in the parlour of the deceased section of the compound, did not lead evidence to show that no other person entered the room of the deceased after the appellant left, or that the deceased did not come out of the room after the appellant left him.
In the decision of this Court in Amao vs. State (2018) LPELR-44167(CA), per Ndukwe-Anyanwu, JCA. (Pp. 14-15, paras. D-F), it was held that:
“Circumstantial evidence is sufficient to ground a conviction only where the inferences drawn from the whole history of the case points strongly to the commission of the crime by the accused. Nwaeze vs. State (1996) 2 NWLR Pt. 428, pg. 1; Akinmoju vs. State (2000) 4 SC. Pt. 1, pg. 64; Durwode vs. The State (2000) SC. Pt. 1, pg. 1. For circumstantial evidence to ground a conviction, it must lead to one conclusion namely: the guilt of the accused person. Where there are other possibilities that others other than the accused had the opportunity of committing the offence with which the accused was charged, such an accused cannot be convicted with the offence. Ubani vs. State (2003) 18 NWLR Pt. 851, pg. 22. … [Emphasis mine].
See also Sani vs. State (2017) 8 NWLR Pt. 1622, pg. 412; Ebenehi vs. State (2009) LPELR-986(SC); (2009) 6 NWLR Pt. 1138, pg. 431; Mamman vs. State (2015) LPELR-25963(CA); Ukorah vs. State (1977) LPELR-3345(SC).
Being that the prosecution was resting their oars on circumstantial evidence as it were, in order for such to ground a conviction it must point irresistibly and unequivocally to the guilt of the accused. I am afraid that the case of the prosecution/respondent herein has fallen short of this test. With the possibility of a third person(s) intervening, the learned trial Judge ought to have resolved the doubt thereof in favour of the accused/appellant. The question whether the prosecution proved the charge against the appellant beyond reasonable doubt is in the light answered in the negative. This is to say that, the prosecution failed to prove the charge of culpable homicide as preferred against the appellant beyond reasonable doubt. Issue 1 (one) is thus, resolved in favour of the appellant and against the respondent.
RESOLUTION OF ISSUE 2 (TWO)
Coming to issue 2 (two) which is whether the trial Court afforded the appellant a fair hearing in the determination of the charge, the grouse of the appellant is that, on some days of the proceedings, the learned trial Court took note of the fact that she, the appellant spoke in Hausa language, while on other days it failed to take that into consideration. The appellant’s counsel contended it was only the PW2 and PW3 who testified in Hausa language, but when the PW1, PW4, PW5, PW6, PW7, PW8 and PW9 respectively testified and they did so in English language, the appellant was not afforded the services of an interpreter. He submitted that the right to be provided with an interpreter is a constitutional and personal right.
Now, in the more recent case of Abdullahi Ibrahim vs. The State (2013) LPELR-21883(SC); (2014) 3 NWLR Pt. 1394, pg. 305 at340-341, paras. F-D, per Muhammad, JSC., the Supreme Court enjoined that:
“… failure to provide an interpreter to an accused person who does not understand the language in which the Court conducts its proceedings is fatal. The principle remains that the lapse negates those proceedings. Beyond being a procedural requirement pursuant to Section 241 of the Criminal Procedure Code, the provision of an interpreter to an accused person who does not understand the language in which Court conducts its proceedings has become a constitutional imperative. Having been subsumed by Section 36 of the 1999 Constitution, Section 241 of the Criminal Procedure Code, where applicable, must be strictly complied with, if the decision of the Court if subsequently appealed against for the breach of the Section is to endure. Both Sections 241 of the Criminal Procedure Code and 36(6) (a) of the Constitution are herein under reproduced for ease of reference. Section 241 Criminal Procedure Code: “When any evidence is given in a language not understood by the accused and the accused is present in Court, it shall be interpreted to him in a language understood by him”. Section 36 of the 1999 Constitution: (6) Every person who is charged with a criminal offence shall be entitled to – (a) be informed promptly in the language that he understands and in detail of the nature of the offence. A community reading of the foregoing makes it mandatory for a Court to provide an interpreter not only for the purpose of reading the charge to and ensuring that such an accused person’s plea is taken only after it is certain the accused understands the charge but that he understands the entire proceedings in Court. [Emphasis mine].
Also in Uchegbu vs. State (1993) 8 NWLR Pt. 309, pg. 89, the apex Court held that a breach of the constitutional right to fair hearing and the concept of miscarriage of justice arising from a trial Court’s failure to provide an accused person who does not understand the language the Court conducts its proceedings, must be factual. The apex Court went on at pages 103- 104 thereof to expatiate further as follows:
“… Where the accused understands the language of the proceedings, no miscarriage of justice is occasioned by the failure to provide an interpreter. It follows that failure to provide an interpreter for the translation of the Ibo version of the proceedings to English language is not fundamental as the accused understands English and also speaks Ibo. [Emphasis mine].
Consequent upon the foregoing authorities, the failure of the lower Court in the instant appeal to avail the accused/appellant with the services of an interpreter on the days when the PW1, PW4, PW5, PW6, PW7, PW8 and PW9 respectively testified in English language, clearly contravened the said accused/appellant’s constitutionally guaranteed right to an interpreter, given that the language understood by her is Hausa language. See the introductory proceedings at pages 114 – 115 of the record of appeal when the accused/appellant took plea and the trial Court noted as follows:
COURT:- The case today is for the plea of the accused person.
BASHIR JABIRU:- We are ready, the accused person speaks Hausa language.
SULIEMAN KEANA: Court clerk to translate from English to Hausa and vice versa to the hearing and understanding of the accused persons.
COURT:- To the accused person. Do you understand the one count charge of Culpable Homicide punishable with death?
ACCUSED TO COURT. Yes I understand the charge against me. … [Emphasis mine].
Since the language of the Court is English and the lower Court had taken cognizance of the fact that the accused/appellant spoke Hausa, it became incumbent on the trial Court, once the said accused was present in Court, to provide her with the services of an interpreter for the day’s proceedings. Not even the presence of the accused/appellant’s counsel in Court will ground a justification or excuse for the none provision of an interpreter for the accused/appellant. This is because, the right to an interpreter is a constitutional personal right of the accused and can only be waived by the accused/appellant himself/herself. There is however, nothing on record to show that the right was waived by the instant accused/appellant. The default or omission of the lower Court in this regard obviously occasioned a miscarriage of justice and thereby negates and or vitiates the entire proceedings.
Finally, I seem to align myself with the contention of the learned counsel for the appellant that the lower Court showed bias against the evidence of the DW1 and DW2 who are friend and daughter respectively of the appellant when it stated as follows:
“Now coming to the defence witnesses to wit DW1 and DW2, I agree with the prosecuting counsels (sic) that to all intents and purposes, their evidence was tainted with interest. DW1 a close personal friend of 30 years of the accused, and DW2 her daughter…
“It is the duty of the trial Court to worn (sic) itself in dealing with evidence of person having some purpose, of their own to serve. When such persons give evidence in Court, their evidence ought to be regarded with considerable caution, the trial Court ought to be wary of such witnesses”.
Those that fall in such category are relations:- DW2 is the daughter to the accused.” (See pages 196 – 197 of the record of appeal).
The lower Court chose to throw the principle of “caution” to the winds, when it believed and acted on the evidence of the prosecution witnesses namely– PW1, PW2 and PW3, who are the son, daughter and brother respectively of the deceased. This is to say that it did not reject the evidence of PW1, PW2 and PW3, notwithstanding their relationship with the deceased, as it did with the evidence of the DW1 and DW2 who are likewise related to the appellant. This failure of the lower Court to apply the same measure and caution to the evidence of the prosecution witnesses as it did to those of the defence witnesses, clearly constitutes a violation of the appellant’s right to fair hearing duly guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. This Court in a situation of this nature, is enjoined to set aside the entire proceedings irrespective of the correctness or otherwise of same. In the case of Mohammed vs. Kano N.A (1968) All NLR 411 at 413, Ademola C.J.N. (of blessed memory) while considering the meaning of fair hearing said:
“It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case.”
See also the case of Ariori vs. Elemo (1983) LPELR-552 (SC) where fair hearing was defined to mean:
… a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause …
The right to fair hearing as earlier noted is constitutionally guaranteed under Section 36 (1) of the Constitution of Nigeria, 1999 (as amended). Thus, whenever there is breach, it attracts consequences. A breach of the right to fair hearing renders the proceedings in which it was committed as well as all subsequent proceedings and any resultant decision therein a nullity, notwithstanding how meticulous the proceeding would have been or how sound the resultant decision would have been on the merit. They are all a nullity. See Ekpenetu vs. Ofegobi (2012) 15 NWLR Pt. 1323, pg. 276; Amadi vs. INEC (2013) 4 NWLR Pt. 1345, pg. 595; Ovunwo vs. Woko (2011) 17 NWLR Pt. 1277, pg. 522; Pan African Incorporation vs. Shoreline Lifeboat Ltd. (2010) All FWLR Pt. 524, pg. 56; Action Congress of Nigeria vs. Sule Lamido (2012) 8 NWLR Pt. 1303, pg. 560 @ 593; and Judicial Service Commission of Cross River State vs. Dr. (Mrs.) Asari Young (2013) 11 NWLR Pt. 1364, pg. 1.
It is in the light of the foregoing authorities that I am constrained to determine the question, whether the trial Court afforded the appellant a fair hearing in the determination of the charge, in the negative. The learned trial Judge clearly did not afford the appellant a level playing ground in the circumstance. Issue 2 (two) is therefore resolved in favour of the appellant and against the respondent.
Having resolved the two issues raised for determination, it follows that this appeal is imbued with merit. It is in this premise that the judgment of the High Court of Nasarawa State in suit No. NSD/LF241/2014, presided over by Hon. Justice Aisha B. Aliyu, delivered 11th December, 2018 wherein the appellant was convicted of the offence of culpable homicide and sentenced to death by hanging, is hereby quashed and in its stead an order of discharge and acquittal is entered in favour of the appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the lead judgment delivered by my learned brother, Hon. Justice C. Ifeoma Jombo-Ofo, JCA. I agree with the reasoning and conclusions reached in the lead Judgment.
The standard of proof where commission of crime is in issue as well as the burden of proof of guilt of crime alleged to be committed by the Accused person lies in the prosecution. Sections 135(1)-(3) and 136(1)-(2) of the Evidence Act, 2011 provide thus:-
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
136(1) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
(2) In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the Court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively.”
The duty of the prosecution in all criminal trials is to marshal credible evidence to prove that an offence has been committed by the person charged with its commission beyond reasonable doubt. The accused has a corresponding duty to adduce credible evidence to contradict, discredit or disparage the evidence of the prosecution witnesses showing that the appellant had no opportunity to have committed the offence with which he was charged, or that even if he had, he did not commit the offence that is the purport of.
It is good law that medical evidence is not always essential, though desirable to prove the cause of death, but the evidence must in any case be such as to show that the death of the deceased was caused by the act of the appellant. See Frank Onyenankeya vs. The State (1964) NMLR 34 at 36 per Taylor, JSC
The Supreme Court held in Jua vs. State (2010) 2 MJSC 152 per Niki-Tobi, JSC at page 171 to 178 thus:
“An accused person can be convicted of the offence of culpable homicide punishable with death if there exists cogent and compelling circumstantial evidence to the fact that the accused person killed the victim. See Obosi vs. The State (1965) NWLR 129; Onah vs. The State (1985) 3 NWLR (Pt. 12) 236; Akpan vs. State (2000) 12 NWLR (Pt.682) 667…”
See also Ismail vs. The State (2011) 7 MJSC 28; Adenuga vs. State (2011) 13 NWLR (Pt. 730) 375 and Adepetu vs State 8 NWLR (Pt565) 185.
In Valentine Adie vs. State (1980) 1 – 2 SC 116, Uwais, JSC (as he then was) held at page 119-123 to wit:
“The only point taken before us by learned Counsel for the appellant was that, in view of the inconsistency in the evidence of the doctor that performed the autopsy (PW1) there was no sufficient circumstantial evidence which could be said to have irresistibility led to the inference by the learned trial Judge that it was the appellant that caused the death of the deceased…
In any case, with the ambiguity in the testimony of the doctor unresolved, it is difficult for me to see how the case for the prosecution, which is based on circumstantial evidence, could be said to have been so conclusive as to irresistibly lead to the guilt of the appellant.
In conclusion, the Appeal succeeds and I will allow it. The decision of the Federal Court of Appeal is set aside and the conviction and sentence imposed by the Trial High Court are quashed. The Appellant is acquitted and discharged.”
In Omonuju vs. The State (1976) 1 All NLR 301, Idigbe, JSC; held at pages 303 to 305 to wit:
“However, the question in this is, whether the deceased died as a result of the action of the appellant or, put differently, whether the Appellant’s unlawful act was the direct cause of death in the case in hand; and consequently, the issue for our determination is whether, given the facts in this case and the state of the medical evidence, there was sufficient nexus between the assault by the Appellant and the cause of deceased’s death as would make the Appellant liable for the offence with which he was charged.”
It is trite law that every Court, Tribunal or Administrative Body exercising Judicial or Quasi-Judicial functions are bound to observe the time-honoured concept/principles of Natural Justice as encapsulated in the Latin Maxim “Audio Alteram Partem” and “Nemo Judex in Causa Sua” and Consecrated/entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to the effect that:-
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
In A. V. Deduwa & Ors. vs. Emmanuel Okorodudu & Ors. (1976) 1 NMLR 236, Alexander, C.J.N. held at page 246 to 247 as follows:
“It is of course, beyond question that the High Court at which the learned Judge presided is a Court established by law and constituted in such a manner as to secure its independence and impartiality. The question to be answered and decided in this context is, therefore, what is a “fair hearing”. A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice. Evershed, M.R., said in Abbot vs. Sullivan (1952) 1 KB. 189, 195: “The principles of natural justices are easy to proclaim, but their precise extent is far less easy to define.”
Accordingly, it is my candid view that the Appellant has established credible evidence to contradict, discredit or disparage the evidence of the Prosecution’s Witnesses that there was a substantial wrong or miscarriage of justice in the Court below against her, which warrants this Court to interfere with the verdict of the learned trial Judge rendered by Hon. Justice Aisha B. Aliyu, J., on the 11th day of December, 2018 in favour of the Respondent (Prosecution). Therefore, the decision of the lower Court cannot stand as this Appeal is meritorious. The proper Order to make is to allow this Appeal and set aside the judgment of the learned trial Judge. Consequently, I also agree with my learned brother that the Appellant should and is hereby discharged and acquitted.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance, the judgment just delivered by learned brother, C. IFEOMA JOMBO-OFO, JCA and I agree with the reasoning and resolution of the two issues distilled therein.
Let me reiterate the necessity of proving the cause of death and linking the said cause to the act of the person accused. The prosecution must prove these elements before a conviction can stand. A charge of culpable homicide can only be proved by cogent evidence proving that the Appellant caused the death of the deceased. Herein, the Respondent’s case left too many gaps which gave room to speculation and suspicion, and suspicion no matter how strong cannot sustain a conviction, see IGBIKIS V STATE (2017) LPELR-41667(SC) where the apex Court held:
“In my view, the conviction at best, was bordered on mere suspicion, which no matter how strong, cannot constitute a crime or ground a conviction. See the case of Alake v. State (1992) 9 NWLR (Pt.265) 260 at 272.” per OGUNBIYI, J.S.C.
Furthermore, there was no direct evidence linking the appellant to the cause of death. There was no definite or single major cause of death as the pathologist could not be definite about the primary and secondary cause of death. Conviction cannot be secured in such uncertain circumstances, the evidence must be direct and unequivocal as held in the case of BELLO V STATE (2014) LPELR-41075(CA) thus:
“On the second ingredient of the offence of, whether it was the act of the Appellant that caused the death of each of the deceased persons, 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 1,027) 214 and Ekpoisong vs State (2009) 1 NWLR (pt 1122) 354. 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 the 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 in this case failed to link the Appellant directly with the cause of death and therefore the conviction cannot stand.
On breach of fair hearing, the point cannot be over emphasized that where the accused person does not understand the language of the Court, the Court is under a duty to provide such accused with an interpreter and there was a failure to do so here, it occasioned a breach that has no remedy but to inure to the advantage of the appellant. The conviction cannot stand because, fair hearing is a constitutional requirement and its observance is imperative. I agree with my learned brother that the appeal is meritorious and should be allowed. I also abide by the other orders made in the lead judgment.
Appearances:
S. S. Obende, with him, S. K. Sheltu and B. M. Jabiru For Appellant(s)
Dr. Abdulkarim A. Kana, Attorney-General, Nasarawa State, with him, M. J. Abokee (PCS) and E. J. Ittah For Respondent(s)