GODWIN v. COP
(2022)LCN/16740(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, March 22, 2022
CA/ABJ/CR/213/2021
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
DSP WAGOZIE IGOCHUKWU GODWIN APPELANT(S)
And
COMMISSIONER OF POLICE RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS
Now, in all criminal trials, the law has placed the burden of proof of the accusation against an accused person on the prosecution and that burden does not shift but remains throughout on the prosecution. This is in view of Section 36(5) of the Constitution of the Federal Republic of Nigeria, which stipulates that, every person accused of having committed a criminal offence, shall be presumed innocent until the presumption has been rebutted by the prosecution. The prosecution can only rebut that presumption by adducing credible evidence which proves all the essential elements of the offence charged beyond reasonable doubt. It therefore means that, where any one of those elements or ingredients has not been proved, it would mean that the prosecution has failed to prove the offence charged beyond reasonable doubt. See Shehu v. State (2010) 8 NWLR (Pt. 1195) 112; Raymond S. Dongtoe v. Civil Service Commission, Plateau State & Ors. (2001) 9 NWLR (Pt. 717) 132 and Abdullahi v. State (2008) 17 NWLR (Pt. 1115) 203. See also Section 138 of the Evidence Act, 2011. PER TSAMMANI, J.C.A.
THE POSITION OF LAW ON PROOF BEYOND REASONABLE DOUBT
Proof beyond reasonable doubt does not mean proof beyond any iota of doubt or any shadow of doubt. In my view, it only means proof that discountenances with doubts that arise out of the idiosyncracies of the Judge. It means that when the evidence adduced is compelling and conclusive and point to no other deduction then the accused committed the offence charged. Thus, where the evidence adduced by the prosecution has established each and every ingredient of the offence charged, the prosecution has proved the offence beyond reasonable doubt. See Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170; Oseni v. State (2017) LPELR-42546 (CA) and Sani v. State (2020) LPELR-53905 (SC). Thus, in Miller v. State (2005) 8 NWLR (Pt. 927) 236 at 265, this Court per Onnoghen, JCA (as he then was) defined proof beyond reasonable doubt as follows:
“In the case of Bakare v. State (1987) 1 NWLR (Pt 52) p.599, (1987) 3 SC 1 at 32, the Supreme Court stated the meaning of the term or phrase “proof beyond reasonable doubt” as follows: “proof beyond reasonable doubt stand out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must proof beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice”.
Accordingly, if the evidence is strong against the accused person 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 is proved beyond reasonable doubt. It therefore follows that, for the prosecution to discharge the burden cast on it, it must lead cogent, credible and compelling evidence which proves all the essential ingredients of the offence beyond reasonable doubt. PER TSAMMANI, J.C.A.
WAYS IN WHICH THE PROSECUTION CAN ESTABLISH ITS CASE BEYOND REASONABLE DOUBTS
It is trite law that the prosecution can discharge the burden cast on it by law to prove the commission of the offence charged by any one or two or even all of the following ways:
(a) By the direct evidence of eye witness(s) who saw when the offence was committed;
(b) By the confessional statement of the accused which is direct, positive and unequivocal and shows that the accused has admitted to have committed the offence charged.
(c) By circumstantial evidence which point directly and conclusively that the accused and no other person committed the offence.
Proof of the commission of the offence by anyone or a combination of the above stated ways will suffice, so long as the evidence adduced sufficiently and conclusively proves all the essential elements of the offence charged beyond reasonable doubt. See Onuoha & Ors. V. State (1989) LPELR-27042 (SC), Ilodigiwe v. State (2012) LPELR-9342 (SC); Okiemute v. State (2016) LPELR—40639 (SC) and Anyasodor v. State (2018) LPELR-43720 (SC).
Where evidence, both oral and documentary, has been adduced before the Court, the duty or primary duty of the trial Court that saw and heard the witnesses as they testify, is to evaluate such evidence and ascribe probative value to it. In a criminal case such as this, the trial Court will evaluate evidence taking into consideration, that the onus of proof lies throughout on the prosecution. Thus, the prosecution may still fail even if the accused declines to give evidence or call any witness. This is because, the accused may only be required to adduce evidence in rebuttal if the prosecution is able to establish a strong prima facie case. In criminal cases therefore, what occupies the hand of the trial Court, is whether there is evidence of such quality on every ingredient of the offence charged, such that it ought to be believed. See Ebenelu & Ors. V. The State (2009) 6 NWLR (Pt. 1138) 431; Kim v. State (1992) 6 NWLR-1691 (SC) and Ibrahim v. State (1991) LPELR—1404 (SC). In Ibrahim v. The State 4 NWLR (Pt.186) 399 at 424. The Supreme Court held as follows:
“…But in criminal cases, the issue of preponderance of evidence does not really arise. The question is whether there is evidence of such quality on every ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial Judge, that is the end of the matter, provided, of course that it is manifest that he has given due consideration to the evidence by or on behalf of the defence. He need not weigh them on a balance”. PER TSAMMANI, J.C.A.
THE DEFINITION OF AN “EYE WITNESS”
An eye witness is in law, a person before whom an offence was committed. He is one who saw the accused person committing the offence. Though not necessarily a victim of the offence, he is one who testifies as to what he saw from personal observation. See Ude v. State (2016) 14 NWLR (Pt. 1531) 122 at 128 and The State v. Soala Larry Briggs (2021) LPELR-55946 (CA). Thus, aside the confession of an accused person to the commission of the offence charged, the best form of evidence in proof of an offence is that of an eye witness who gives a direct narration of the incident as it happened. The evidence of an eye witness is not indispensable but in the absence of a confession, it is the best evidence so long as the testimony of the eye witness is truthful and is believed by the trial Court. See Akinmoju v. State (2000) 6 NWLR (Pt. 662) 608; Shurumo v. State (2010) 19 NWLR (Pt. 1226) 73 and Agu v. State (2017) 10 NWLR (Pt. 1573) 171. PER TSAMMANI, J.C.A.
DEFINITION OF CIRCUMSTANTIAL EVIDENCE
Circumstantial evidence on the other hand, has been defined in a legion of authorities, as the evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. It also means that, there are circumstances, which make a complete and unbroken chain of events, if established to the satisfaction of the Court may properly act as evidence in proof of the commission of the offence charged. See Adesina & Anor. v. State (2012) 14 NWLR (Pt. 1321) 429; Ogidi & Ors. V. State (2005) LPELR-2303 (SC) and Mohammed & Anor. v. State (2007) LPELR-(1894) SC. Thus, in Akinbisade v. State (2006) LPELR-342 (SC), the Supreme Court per Kalgo, JSC held that:
“It is also well settled that for any circumstantial evidence to support the conviction of the offence charged, that evidence must be credible, cogent, consistent and unequivocal and leads to no conclusion other than the guilt of the person charged with the offence. Circumstantial evidence is evidence of surrounding circumstances called from credible evidence in Court and which, by undersigned coincidence, is capable of proving a preposition with the accuracy of mathematics. It can be used to convict an accused person charged with a criminal offence but in such circumstances, the Court must be sure that the evidence is cogent, consistent, irresistible, rational and compelling and leads to the guilt of the accused person and leave no degree of possibility or chance that other person could have been responsible for the commission of the offence…”
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of High Court of the Federal Capital Territory delivered on the 27th day of November, 2020 per A. O. Ebong, J in Charge No: CR/004/2018.
The Appellant herein, a Deputy Superintendent of Police, was charged, tried and convicted of culpable homicide not punishable with death which is an offence contrary to Section 222(3) and punishable under Section 224 of the Penal Code. The Appellant was then sentenced to sixteen (16) years imprisonment without an option of fine. The facts leading to the trial and conviction of the Appellant was stated by the learned trial Judge at page 157 lines 1-16 of the record of appeal as follows:
“The evidence of the prosecution may be summarized as follows: On the 13/10/2018, shortly before 10p.m. PW1 opened the gate for the deceased, Anita Akapson, to drive out of the premises where she was a tenant and where the witness also resided. As she got to the street in front of the premises, a small Mazda car drove up and blocked her pathway. The defendant emerged from the Mazda car and shot the back tyre of Anita’s car with a hand gun. Anita then tried to open her car door, but the defendant shot her through the door of the car, PW1 and his friends confronted the defendant and asked him why he shot the girl, but he gave no response. When they threatened to beat him up, he then brought out his identity card and told them he was a Police Officer. Thereafter, he (defendant) made a phone call to the Gwarinpa Police Station and Policemen came with a Hilux and took Anita and PW1 to Gwarimpa General Hospital, where Anita died soon after”.
At the trial, the prosecution called four (4) witnesses who testified as PW1, PW2, PW3 and PW4. Some exhibits including the extra-judicial statement of the Appellant, the Autopsy Report and the Medical Report of cause of death were tendered in evidence. The Appellant testified in his defence as DW2 and called one other witness who testified as the DW1. At the close of evidence, Written Addresses were filed and exchanged between the parties. In a well-considered judgment delivered on the 27th day of November, 2020, the Appellant was convicted of culpable homicide not punishable with death and sentenced to sixteen (16) years in prison. Being unhappy with the decision, the Appellant has filed this appeal.
The Notice of Appeal consisting of sixteen (16) Grounds of Appeal was filed on 02/3/2021. In compliance with the Rules of this Court, the parties filed and exchanged Briefs of Arguments. The Appellant’s Brief of Arguments was filed on 24/6/2021 but deemed filed on 17/1/2022. Three (3) issues were distilled therein for determination as follows:
1. Whether having regard to the appropriate standard and burden of proof, the learned trial Judge was not wrong when he held that the Appellant did not furnish any credible explanation as to the person who fired the fatal shot that killed the deceased (Distilled from Ground 9).
2. Whether having regard to the totality of the evidence led by the Respondent including the evidence of PW3, the learned trial Judge was not wrong when he unduly relied on the evidence of PW1 and PW2 in convicting the Appellant. (Grounds 1, 2, 3, 4, 10, 13, 14, 15 and 16).
3. Whether having regard to the appropriate standard and burden of proof, the learned trial Judge was not wrong when he disregarded the defence of the Appellant in preference to the evidence presented by PW1 and PW2, (Grounds 5, 6, 7 and 8).
The Respondent’s Brief of Arguments settled by A. K. Akilu; Esq (Chief State Counsel) was filed on the 30/9/2021 but deemed filed on 17/1/2022. Therein, two issues were raised for determination as follows:
(a) Whether the Respondent has proved its case against the Appellant beyond reasonable doubt to secure the conviction of the Appellant.
(b) Whether the lower Court was right when he disregarded the defence of the Appellant.
I propose to consider and determine this appeal on the issues raised by the Appellant. The issues shall, however, be considered together.
Arguing the appeal, learned senior counsel for the Appellant contended first of all, that the crucial issue to be determined is, whether it was the shot fired by the Appellant that killed the deceased. That, while the prosecution contended that more than one shot was fired by the Appellant, the Appellant contended that he fired only one shot which punctured the rear tyre of the car driven by the deceased. That, in resolving the issue, the learned trial Judge required the Appellant to prove that:
(i) the deceased was shot inside her compound;
(i) that there were other shots besides that fired by the Appellant; and
(iii) that the fatal shot did not emanate from the Appellant,
That, the learned trial Judge, stated the elements of the offence of culpable homicide not punishable with death, as follows:
(i) death of the deceased;
(ii) that the death was caused by the voluntary act of the accused.
The case of State v. Onwueriaku (2017) LPELR-42613 (CA) was then cited to submit that, the onus was on the prosecution to prove the guilt of the Appellant, and that, such onus does not shift to the accused person to establish his innocence. That, in establishing the guilt of an accused person, the prosecution is required to prove all the essential elements of the offence charged. That, to discharge the burden, the prosecution must call all vital witnesses to testify. The cases of Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170; Amadi v. The State (1993) 8 NWLR (Pt. 314) 664; Alor v. The State (1997) 4 NWLR (Pt. 501) 511 and Chukwuma v. F. R. N. (2011) LPELR-863 (SC) were cited in support. That, in the instant case, the burden was on the prosecution to prove that the Appellant caused the death of Miss Anita Akapson, beyond reasonable doubt.
Learned senior counsel went on to submit that, though the trial Court treated the PW1 as an eye witness, there is nothing sacrosanct in being qualified as an eye witness because, the oral account of an eye witness must be weighed against the background of other physical evidence led at the trial. That, in that respect, particularly in a criminal trial, causation of death involving gunshot is a matter of physical evidence and that eye witness account may only serve to lay the foundation or embellish the physical evidence which is an allegation that it was the gunshot let out by the Appellant that caused the death of the deceased. The cases of State v. Onyeukwu (2004) 14 NWLR (Pt.893) 340; Audu v. State (1985) 1 NWLR (Pt.1) 55; Abdullahi v. State (2008) All FWLR (Pt. 432) 1047 at 1057; Idemudia v. State (2015) 17 NWLR (Pt.1488) 375 and Sani v. State (2015) 15 NWLR (Pt. 1483) 522 were cited in support.
On that premise, learned senior counsel for the Appellant went on to submit that, looking at the case holistically, the primary function of the prosecution was to prove the bullet that caused the death of the deceased. That, this is particularly so, where the Appellant had asserted that, it was not the shot let out by him which killed the deceased. That, the Appellant’s case as put up in his extra-judicial statement was that, the deceased had already been shot when he engaged her. That in support of his assertion, the Appellant had contended that, his service pistol which he signed for and utilized was an eight (8) rounder and that only one bullet was expended.
The case of Aigbadion v. State (2000) 7 NWLR (Pt. 666) 686 was then cited to submit that, in law, a defence no matter how improbable or even stupid, must be investigated.
Learned senior counsel went on to submit that, the prosecution did investigate the crucial aspect as to how many gunshots the Appellant expended. That the PW3 who investigated the issue, did testify that only one bullet was expended by the Appellant and that it was shot at the tyre, thereby indicating that it was not the bullet expended by the Appellant that struck the fatal blow. That, the PW3 who testified to that fact was not treated as a hostile witness by the prosecution, and therefore it remains the evidence of the prosecution that the Appellant’s account that he expended only one bullet was justified. Learned counsel for the Appellant then submitted that, since the duty of the Respondent was to establish the cause of the death of the deceased, it had the duty to recover the bullet and through the testimony of a ballistician link the recovered bullet to the gun carried by the Appellant. That, without this physical evidence, the Court cannot rely on conjecture to resolve the issue especially when the Appellant had denied that he shot at the body of the deceased. The case of Kwale v. State (2017) 9 NWLR (Pt. 1571) 399 at 436 was cited in support, and to also submit that, the bullet that hit the deceased must be established by the prosecution before it can be said that the accused caused the death of the deceased.
Learned senior counsel for the Appellant went on to submit that, the PW3 testified that only two bullet holes were found in the vehicle; one at the tyre and the other at the door of the vehicle but that, no forensic examination was conducted as the vehicle had already been tampered with. That, since a crucial part of the evidence of the PW1 was that the Appellant shot the deceased through the door of the car, the physical evidence of that assertion must be before the Court. That, the vehicle was not tendered nor a photograph tendered, showing the bullet hole. That, the pistol was also not tendered; and that in the circumstances, the trial Court was not at liberty to speculate on a matter which only physical evidence can prove. The case of Emeka v. Chuba — Ikpeazu (2017) 15 NWLR (Pt. 1589) 345 and Simon v. State (2017) 18 NWLR (Pt. 1566) 119 were then cited to submit that, in law, such evidence which could be but was not, would be presumed to be against the prosecution. The case of Ojo v. State (2018) LPELR—44699 was then cited in urging us to resolve this issue in favour of the Appellant.
On issue two (2), learned senior counsel for the Appellant submitted that, the trite law is that, the Court must consider the case of the prosecution as a whole and not in segments in order to select the evidence favourable to the prosecution as done by the trial Court. The cases of Adamu & Ors. V. State (1991) LPELR-73 (SC); Rev. King v. State (2016) LPELR-4004 (SC) and Ideh v. State (1997) LPELR-1387 (SC) were then cited to submit that, PW3 was an investigator who exercised his wisdom and expertise in the process of investigation. That, the testimony of PW3 was largely founded on what he did and discovered in the process of his investigation. The cases of Abiodun v. State (2017) All FWLR (Pt. 878) 519; Obot v. State (2014) LPELR-23130 (CA) and Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283 were then cited to submit that, the testimony referred by the prosecution was for the sole purpose of sustaining the charge, and where such testimony does not sustain the charge, it will be fatal to the case of the prosecution. It was therefore submitted that, the testimony of PW3 to the effect that based on his investigation, the Appellant discharged only one (1) bullet is not only binding on the prosecution but destroyed any other evidence to the effect that the Appellant discharged two (2) bullets.
Learned senior counsel went on to submit that, despite the debilitating evidence of PW3, the learned trial Judge unilaterally unleashed an attack on PW3 and the evidence offered by him in preference to the contradicting evidence of PW1 and PW2. That, without the prompting of the prosecution, the learned trial Judge attacked the testimony of PW3 and his character. That in doing so, the learned trial Judge ignored the most vital evidence which a dispassionate consideration would have compelled. That, the learned trial Judge claimed that PW1 was an eye witness and his evidence in that regard was not challenged. That PW1 claimed that the event transpired on 13/10/2018 and that he wrote his statement on the same day. However, that the said statement (Exhibit PI) was indeed written on 14/10/2018; and that such glaring discrepancy was not explained. That this further gives credence to the fact that PW1 did not witness the incidence but the learned trial Judge took it upon himself to explain the circumstances of the making of exhibit P1.
Still on the issue of gunshots fired by the Appellant and at the vicinity of the incident, learned senior counsel contended that, the case of the Appellant was that there were several gunshots but the PW 1 in his evidence in chief stated that there were two shots but under cross-examination that there were three shots. That if three (3) shots were fired by the Appellant, five (5) live bullets would be left in the revolver out of the eight (8), That, the prosecution did not lead any evidence to show that the Appellant requested for more bullets or that upon his return, carried an extra bullet. In other words, that no evidence was led to establish that the Appellant had an opportunity to replace the bullets and therefore, the prosecution failed to explain how the Appellant’s service pistol had only one (1) bullet expended when the PW1 testified that, three (3) bullets were expended by the Appellant.
Learned senior counsel for the Appellant contended that, it is remarkable that the learned trial Judge elevated the hearsay evidence of PW2 above that of PW3. That it is clear that PW2 gave hearsay evidence when he told the Court under cross-examination that what he told the Court is what he was told by PW1 and other persons. The cases of Simon v. State (supra); Ijiofor v. State (2001) LPELR—1465 (SC) and Arogundade v. State (2009) LPELR—599 (SC) were then cited to submit that, hearsay evidence is inadmissible; and that, it is not for the Court to sift through the evidence of a witness to determine which part is hearsay and which part is not. It was then submitted that, standing alone, the evidence of PW1 and PW2, if dispassionately considered, failed to establish the case against the Appellant beyond reasonable doubt. Furthermore, that the physical evidence supports the testimony of PW3, and therefore, there was no reason for the learned trial Judge to denigrate same in preference to that of the PW1.
On issue three (3), learned senior counsel for the Appellant contended that, the learned trial Judge erred when he disregarded the case of the Appellant in preference to the evidence presented by PW1 and PW2. Learned counsel conceded that, the learned trial Judge received the evidence and set about to evaluate same, but contended that, the evaluation did not take into account the effect of the physical evidence available by the prosecution, which if given their due weight, fully supports the case of the Appellant. On that note, it was contended that, the prosecution did not establish that it was the act of the Appellant that caused the death of the deceased. That, the case of the Appellant that he was issued a Para Pistol with eight (8) rounds of ammunition was corroborated by PW3 who investigated the case. So also, the case of the Appellant that he expended only one (1) bullet. That, no contrary evidence was led by the prosecution to show that the Appellant was issued more than eight (8) bullets.
Learned senior counsel for the Appellant went on to submit that, it is not correct, as held by the learned trial Judge, that failure to produce the vehicle for inspection was of no consequence, and that the parties did not contest the issue. That, the crucial issue in this case was, which bullet killed the deceased and where did the Appellant discharge his bullet. That, the forensic inspection of the vehicle was therefore, crucial in ascertaining both. That, the bullet at the tyre which the Appellant maintained was the destination of his one (1) bullet, is the focal point of his defence, and that same may only be established or disproved by production and physical inspection of the tyre. The cases of Opayemi v. The State (1985) 2 NWLR (Pt. 175) 509; Bello v. State (1966) 1 All N.L.R 217 and Oduneye v. State (2001) 2 NWLR (Pt. 697) 311 were thus cited, to submit that, the prosecution has a duty to make available all crucial evidence to the defence.
Learned senior counsel for the Appellant then submitted that, the establishment of the cause of death, is not the same thing as determining who caused the death. That in the instant case, the cause of death, no doubt, was one bullet, but who discharged the bullet was glossed over by the learned trial Judge. That, there must be evidence that a shot proceeded through the door to hit the deceased and that it was the Appellant who discharged the bullet. We were accordingly urged to resolve the issues raised in this appeal, in favour of the Appellant.
In response, learned counsel for the Respondent submitted that by Section 135 of the Evidence Act, 2011, the onus of proof was on the prosecution to establish the guilt of the Appellant beyond reasonable doubt, and that the burden does not shift. The cases of Miller v. Minister of Pensions (1947) 2 All E. R. 372; Ani v. The State (2009) 6 NWLR (Pt. 1168) 443 at 458 Para. E and Bille v. State (2016) LPELR-40832 (SC) were cited in support. That, the prosecution may prove the guilt of the accused person in any of the below-stated ways:
(i) by reliance on the statement at the accused person voluntarily made;
(ii) by circumstantial evidence
(iii) by the evidence of eye witness.
The case of Emeka v. The State (2001) 14 NWLR (Pt.736) 666 at 683 was cited in support. That in the instant case, the trial Court relied on the evidence of eye witness and circumstantial evidence.
Learned counsel for the Respondent then went on to submit that, where circumstantial evidence is overwhelming and leads to no other conclusion than the guilt of the Appellant, the Court may convict on it. The cases of Okoro v. State (1993) 3 NWLR (Pt. 282) 425; Nwankwo & Anor. v. FRN (2002) LPELR-7089 (CA) and Igbikis v. State (2017) LPELR—41667 (SC) were cited in support. That in the instant case, the circumstances of this case as narrated by PW1 put the Appellant at the scene of crime. That, there was a gunshot wound on the deceased which led to her death, and that the Appellant was the only one with a gun at the scene.
Learned counsel for the Respondent went on to submit that, there was the evidence of an eye witness. The cases of Abubakar & Anor. v. State (2015) LPELR-40379 (CA) and John v. State (2013) LPELR—22813 (CA) were then cited to submit that, the evidence of an eye witness can be referred to as the best evidence, especially when it is clear and unambiguous. Referring to the testimony of PW1, learned counsel went on to submit that, from the testimony of PW1, it was clear that he (PW1) was at the scene of crime and that he was unshaken under cross-examination. That, the testimony of PW1 gave the Court the true picture of what transpired on the day of the incident. The cases of Udo v. State (2018) LPELR-43707 (SC); Adeta v. Nigerian Army (2016) LPELR-40235 (CA); Oluwatoyin v. State (2018) LPELR-44441 (CA) and Adebowale v. State (2018) LPELR—46766 (CA) were cited in support, and to further submit that, the PW1 told the truth as an eye witness who saw the incidence.
Learned counsel for the Respondent then cited the case of Mindi v. State (2020) LPELR—52897 (SC) to submit that, it is trite law that, the Court can believe and rely on the evidence of a single witness to convict if the Court believes the truth of the testimony of the witness considering the circumstances of the case. That in the instant case, the trial Court believed the evidence of PW1, as such evidence was believable and credible. Learned counsel then cited the case of Saleh v. State (2015) LPELR—40399 (CA) to submit that, in proving culpable homicide not punishable with death, the prosecution must establish that:
(a) the deceased died;
(b) the death of the deceased resulted from the voluntary act of the accused;
(c) that the act of the accused that resulted in the death of the deceased was unlawful, rash or negligent.
On whether the deceased died, learned counsel for the Respondent contended that from the evidence on record, the death of a person occurred. That both parties are agreed on that. That, the Appellant made a heavy weather of the bullet that killed the deceased and that the prosecution should have gotten a Ballistic Report as it relates to the bullet shot. That, the Courts have laid down the principles relating to cause of death of a deceased in homicide cases in a plethora of authorities, such as lge v. State (2021) LPELR-55018 (CA); Umaru v. State (2015) LPELR-40901 (CA); Oforlete v. State (2000) 12 NWLR (Pt. 631) 415; Ben v. State (2004) LPELR-7361 (CA) and Adegboye v. State (2015) LPELR—41723 (CA). That in the instant case, the prosecution tendered a Death Certificate and an Autopsy Report in prove of the cause of death. That those documents together with the evidence of PW1 proved the death and cause of death of the deceased to be gunshot.
Learned counsel for the Respondent went on to submit that, Ballistic Report on the bullet said to have caused the death of the deceased is unnecessary considering the facts and circumstances of the case. That, the case of Bille v. State (supra) cited by the Appellant is not applicable to the facts of this case. That, the case relates to a charge of unlawful possession of firearms but in the instant case, evidence led at the trial Court and through an eye witness put the Appellant at the scene of crime. That, the said eye witness saw the Appellant shoot the deceased.
On the issue of the learned trial Judge not believing the PW3, learned counsel for the Respondent contended that, the learned senior counsel for the Appellant is misconceived on the issue. The case of Onu v. State of Lagos (2020) LPELR—50285 (CA) was then cited to submit that, the learned trial Judge gave reasons for not believing the PW3 at pages 176—177 of the record of appeal. That, those findings were based on the demeanor of PW3 when he testified. That, in the circumstances, the finding of the learned trial Judge that he watched the demeanor of the witness and saw that the said witness was not credible cannot be interfered with by this Court, same being based on credibility of the witness.
On whether the death of the deceased resulted from the voluntary act of the Appellant, learned counsel for the Respondent contended that, to constitute a voluntary act for which a person may be held criminally liable, the act must result from the person’s conscious choice. That in the instant case, the death of the deceased resulted from the voluntary act of the Appellant as evidenced by the testimony of the PW1. That, the Appellant after demobilizing the deceased’s car, went on to shoot her resulting in her death. That in the circumstances, the act of shooting the Appellant was unlawful and rash. That, the Appellant merely looked for a way to wriggle out of the scene by contending that he fired only one shot to demobilize the tyres. We were accordingly urged to hold that, the shooting of the deceased by the Appellant was rash, unlawful and unnecessary.
Learned counsel for the Respondent went on to submit that, the act of the Appellant was therefore, not such that would amount to culpable homicide punishable with death but that of culpable homicide not punishable with death. The cases of Wowem v. State (2021) LPELR—53384 (SC) and Sheidu v. State (2014) LPELR-23018 (SC) were then cited to submit that, the learned trial Judge considered the defence raised by the Appellant and found same not tenable. That, the evidence of the eye witness (PW1) established beyond reasonable doubt that the Appellant shot the deceased. We were accordingly urged to hold that, the learned trial Judge considered the defence of the Appellant in detail and came to the conclusion that the Appellant caused the death of the deceased. We were also urged to dismiss the appeal.
Now, in all criminal trials, the law has placed the burden of proof of the accusation against an accused person on the prosecution and that burden does not shift but remains throughout on the prosecution. This is in view of Section 36(5) of the Constitution of the Federal Republic of Nigeria, which stipulates that, every person accused of having committed a criminal offence, shall be presumed innocent until the presumption has been rebutted by the prosecution. The prosecution can only rebut that presumption by adducing credible evidence which proves all the essential elements of the offence charged beyond reasonable doubt. It therefore means that, where any one of those elements or ingredients has not been proved, it would mean that the prosecution has failed to prove the offence charged beyond reasonable doubt. See Shehu v. State (2010) 8 NWLR (Pt. 1195) 112; Raymond S. Dongtoe v. Civil Service Commission, Plateau State & Ors. (2001) 9 NWLR (Pt. 717) 132 and Abdullahi v. State (2008) 17 NWLR (Pt. 1115) 203. See also Section 138 of the Evidence Act, 2011.
Proof beyond reasonable doubt does not mean proof beyond any iota of doubt or any shadow of doubt. In my view, it only means proof that discountenances with doubts that arise out of the idiosyncracies of the Judge. It means that when the evidence adduced is compelling and conclusive and point to no other deduction then the accused committed the offence charged. Thus, where the evidence adduced by the prosecution has established each and every ingredient of the offence charged, the prosecution has proved the offence beyond reasonable doubt. See Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170; Oseni v. State (2017) LPELR-42546 (CA) and Sani v. State (2020) LPELR-53905 (SC). Thus, in Miller v. State (2005) 8 NWLR (Pt. 927) 236 at 265, this Court per Onnoghen, JCA (as he then was) defined proof beyond reasonable doubt as follows:
“In the case of Bakare v. State (1987) 1 NWLR (Pt 52) p.599, (1987) 3 SC 1 at 32, the Supreme Court stated the meaning of the term or phrase “proof beyond reasonable doubt” as follows: “proof beyond reasonable doubt stand out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must proof beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice”.
Accordingly, if the evidence is strong against the accused person 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 is proved beyond reasonable doubt. It therefore follows that, for the prosecution to discharge the burden cast on it, it must lead cogent, credible and compelling evidence which proves all the essential ingredients of the offence beyond reasonable doubt.
It is trite law that the prosecution can discharge the burden cast on it by law to prove the commission of the offence charged by any one or two or even all of the following ways:
(a) By the direct evidence of eye witness(s) who saw when the offence was committed;
(b) By the confessional statement of the accused which is direct, positive and unequivocal and shows that the accused has admitted to have committed the offence charged.
(c) By circumstantial evidence which point directly and conclusively that the accused and no other person committed the offence.
Proof of the commission of the offence by anyone or a combination of the above stated ways will suffice, so long as the evidence adduced sufficiently and conclusively proves all the essential elements of the offence charged beyond reasonable doubt. See Onuoha & Ors. V. State (1989) LPELR-27042 (SC), Ilodigiwe v. State (2012) LPELR-9342 (SC); Okiemute v. State (2016) LPELR—40639 (SC) and Anyasodor v. State (2018) LPELR-43720 (SC).
Where evidence, both oral and documentary, has been adduced before the Court, the duty or primary duty of the trial Court that saw and heard the witnesses as they testify, is to evaluate such evidence and ascribe probative value to it. In a criminal case such as this, the trial Court will evaluate evidence taking into consideration, that the onus of proof lies throughout on the prosecution. Thus, the prosecution may still fail even if the accused declines to give evidence or call any witness. This is because, the accused may only be required to adduce evidence in rebuttal if the prosecution is able to establish a strong prima facie case. In criminal cases therefore, what occupies the hand of the trial Court, is whether there is evidence of such quality on every ingredient of the offence charged, such that it ought to be believed. See Ebenelu & Ors. V. The State (2009) 6 NWLR (Pt. 1138) 431; Kim v. State (1992) 6 NWLR-1691 (SC) and Ibrahim v. State (1991) LPELR—1404 (SC). In Ibrahim v. The State 4 NWLR (Pt.186) 399 at 424. The Supreme Court held as follows:
“…But in criminal cases, the issue of preponderance of evidence does not really arise. The question is whether there is evidence of such quality on every ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial Judge, that is the end of the matter, provided, of course that it is manifest that he has given due consideration to the evidence by or on behalf of the defence. He need not weigh them on a balance”.
In the instant, it is apparent on the record, that the learned trial Judge relied on the testimony of PW1 who gave evidence as an eye witness, and circumstantial evidence.
An eye witness is in law, a person before whom an offence was committed. He is one who saw the accused person committing the offence. Though not necessarily a victim of the offence, he is one who testifies as to what he saw from personal observation. See Ude v. State (2016) 14 NWLR (Pt. 1531) 122 at 128 and The State v. Soala Larry Briggs (2021) LPELR-55946 (CA). Thus, aside the confession of an accused person to the commission of the offence charged, the best form of evidence in proof of an offence is that of an eye witness who gives a direct narration of the incident as it happened. The evidence of an eye witness is not indispensable but in the absence of a confession, it is the best evidence so long as the testimony of the eye witness is truthful and is believed by the trial Court. See Akinmoju v. State (2000) 6 NWLR (Pt. 662) 608; Shurumo v. State (2010) 19 NWLR (Pt. 1226) 73 and Agu v. State (2017) 10 NWLR (Pt. 1573) 171.
Circumstantial evidence on the other hand, has been defined in a legion of authorities, as the evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. It also means that, there are circumstances, which make a complete and unbroken chain of events, if established to the satisfaction of the Court may properly act as evidence in proof of the commission of the offence charged. See Adesina & Anor. v. State (2012) 14 NWLR (Pt. 1321) 429; Ogidi & Ors. V. State (2005) LPELR-2303 (SC) and Mohammed & Anor. v. State (2007) LPELR-(1894) SC. Thus, in Akinbisade v. State (2006) LPELR-342 (SC), the Supreme Court per Kalgo, JSC held that:
“It is also well settled that for any circumstantial evidence to support the conviction of the offence charged, that evidence must be credible, cogent, consistent and unequivocal and leads to no conclusion other than the guilt of the person charged with the offence. Circumstantial evidence is evidence of surrounding circumstances called from credible evidence in Court and which, by undersigned coincidence, is capable of proving a preposition with the accuracy of mathematics. It can be used to convict an accused person charged with a criminal offence but in such circumstances, the Court must be sure that the evidence is cogent, consistent, irresistible, rational and compelling and leads to the guilt of the accused person and leave no degree of possibility or chance that other person could have been responsible for the commission of the offence…”
For a Court to rely on circumstantial evidence to convict, it must exercise utmost caution so that it may not fall into the trap of a web being built around an innocent person. That is why, the Court relying on circumstantial evidence to convict, must carefully scrutinize and interrogate the evidence before proceeding to convict. See Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107; Idiok v. State (2008) 13 NWLR (Pt. 1104) 225 and Sani v. State (2017) 8 NWLR (Pt. 1622) 412.
In the instant case, the Appellant was convicted of having committed the offence of culpable homicide not punishable with death contrary to Section 222 (3) and punishable under Section 224 of the Penal Code. To prove the commission of the offence of culpable homicide not punishable with death, the prosecution must establish the following facts:
(a) that a human being has died;
(b) that the death of the deceased was caused by the accused;
(c) that the act of the accused that caused the death of the deceased was unlawful, rash or negligent; and
(d) the act of the accused was such that would not amount to culpable homicide punishable with death.
All the above ingredients must be established by cogent and credible evidence beyond reasonable doubt before the Court can convict for culpable homicide not punishable with death. Thus, if any one of those ingredients is not established, the accused will be entitled to an acquittal. See Idowu v. State (2000) 12 NWLR (Pt. 680) 48; Mohammed Lawali v. The State (2021) LPELR-56431 (CA); Michael v. The State (2008) 13 NWLR (Pt. 1104) 361 and Hamman v. The State (2018) LPELR—45392 (CA).
In the instant case, the learned trial Judge found that from both the oral and documentary evidence adduced at the trial, it was proved that one Miss Anita Akapson died in the night of 13/10/2018. The learned trial Judge had made findings and held at page 169 line 24—170 line 7 of the record of appeal as follows:
“Now, one fact that is undisputed in this case, is the death of one Miss Anita Akapson, arising from a shooting incident at or by her residence at Katampe Extension, Abuja, on the night of 13/10/18, All the witnesses for both sides are agreed on this fact, PW1, a gateman residing in the same house with her, gave evidence as an eye witness, and described how she was shot and later died shortly after being transported to the Gwarimpa General hospital. PW2, her brother—in—law, confirmed that he saw her dead body at the said hospital, the same night of 13/10/2018. The two defence witnesses equally attested to the fact that the deceased was shot and taken to the said hospital before she could be given any medical help”.
There is no appeal against this finding of the trial Court. One other finding on which there is no challenge by this appeal is at page 170 lines 8—18 of the record of appeal, where the learned trial Judge found and held as follows:
“the cause of death is also not in dispute. The evidence is unequivocal that she died of gunshot injury. While a medical report is not required to prove the cause of death in this instance, given the chain of events leading to her demise as recounted by the witnesses, there is in fact an autopsy report as well as a death certificate, Exhibits P4 and P5, showing that she died of massive bleeding from gunshot injuries, Contrary to the argument by defence counsel Exhibits P4 and P5 are not hearsay evidence. The contain the findings of the pathologist, PW4, based on his post-mortem examination of the corpse of the deceased”.
The above findings have not been challenged on appeal. It is the settled law that, where the findings of fact by the Court have not been appealed against, those findings remain subsisting and binding on the parties. Those findings therefore are deemed conceded to and established. See Amale v. Sokoto Local Government (2012) 5 NWLR (Pt.1292) 181; Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117 and Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt. 1342) 503. It is therefore my finding that one Miss Anita Akapson died on the night of 13/10/2018. It is also not disputed that she died of massive intra-abdominal hemorrhage with multiple intestinal perforations due to gunshot injury. That established, it is a necessary component of proof of this case, to consider whether the cause of death, in this case the gunshot was the resultant effect of an act of the Appellant.
In every trial for culpable homicide, it is necessary for the prosecution to prove by credible evidence, that it is the act of the accused that caused the deceased’s death. This necessarily follows after the cause of death has been established. The prosecution will then have to prove who triggered the injury that caused the death of the deceased. In other words, after the cause of death had been determined, the issue of who and which act of the accused person is connected to the injury that resulted in the death of the deceased must be established. See Ahmed v. The State (2001) 18 NWLR (Pt 746) 622; Usman Sule v. The State (2013) LPELR-22323 (CA); Aliyu Bashir v. Kano State (2016) LPELR-41561 (CA) and Nigerian Navy v. Lambert (2007) 18 NWLR (Pt. 1066) 300. There must therefore be substantial and credible evidence which proves beyond reasonable doubt that the deceased died as a direct consequence of the act of the accused. Thus, in Oforlete v. State (2000) 12 NWLR (Pt. 631) 415, the Supreme Court held as follows:
“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 criminal proceeding, beyond reasonable doubt. The first and logical 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”.
Similarly, in Ochiba v. State (2011) LPELR-8245 (SC), the Supreme Court held 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 or 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”.
In the instant case, the prosecution called four (4) witnesses. The PW1, one Friday Yari was an eye witness to the events that led to the death of the deceased. Being a person who saw the events as they happened eminently qualified as an eye witness by virtue of Section 126(9) of the Evidence Act, 2011. PW2, Mustapha Katuka, a brother-in-law to the deceased, identified the corpse of the deceased. The PW3 was the Police Officer that investigated the offence, while PW4 was the medical Pathologist that conducted the Post-mortem examination on the deceased.
Now, as I stated at the inception of this judgment, the trial Court relied on both eye witness evidence and circumstantial evidence in convicting the Appellant. Relying on the testimony of the said eye witness who gave evidence as PW1, the learned trial Judge held at page 171 lines 3—19 of the record of appeal as follows:
“The next question is, who killed her; or better still, who administered the gunshot that resulted in her death? The case of the prosecution is that it was the defendant that shot her, and they tendered the evidence of an eye witness (PW1) to support their assertion. The status of the PW1 as an eye witness to the incident was not challenged in this proceedings. There are infact, aspects of the testimonies of the two defence witnesses which show that PW1 was indeed present at the scene of the incident. For instance, PW1 said one of the shots fired by the defendant was at Anita’s back tyre; both defence witnesses also said the defendant fired at the rear tyre of the deceased’s car. Similarly, PW1 said when they confronted the defendant after the shooting, he brought out his identity card and identified himself as a Police Officer; the defence witnesses equally said the defendant identified himself at the scene, after the shooting, as a Police Officer, even though they claimed he did so to the deceased not to the PW1 and his friends”,
The learned trial Judge went on to find at page 172 lines 6—9 of the record of appeal as follows:
“Now, as an eye witness, PW1 told this Court that as Anita drove out of her compound, he saw a Mazda car drive up and blocked her car; that the defendant came out of the Mazda car and shot Anita through her car door after deflating her back tyre with another shot; and that he also fired a shot into the air. The witness described how the defendant afterwards produced his identity card to show that he was a policeman, and called his Station; and how the victim was taken to the hospital where she gave up the ghost soon after their arrival there, PW1 also later identified the defendant to the PW2 and his family members the same night at Gwarimpa Police Station, as the person who shot the deceased Anita.
It is plain from the analysis I made earlier on, that much of the evidence of the PW1 is supported by the testimony of the defendant and his witness; and that a substantial part of the PW1’s evidence is infact unchallenged and uncontradicted, I think I can say that from the facts as presented by both sides, there is no dispute that the deceased suffered gunshot injuries on the night in question and that she died of those injuries soon after, on getting to the hospital. The main (and indeed, the only) point of contest by the defence is whether it was the shot fired by the defendant that killed the deceased. While the defendant has admitted being present at the scene of the incident and firing his gun at the deceased’s car, his case is that he only shot at her back tyre to demobilize her car, but that she died of gunshot(s) fired on her by some suspected robbers while she was still inside her compound, before she drove out to where he shot her rear tyre. He claimed his presence at the scene of the occurrence was in response to an alleged distress call received earlier on, and that he was left at the location by his DPO to see to the possible arrest of other suspected robbers who had allegedly taken refuge in the deceased’s premises. That when he saw the deceased driving out of the compound dangerously, he assumed it was the suspects in the compound and therefore fired to demobilize the car”.
Now, the PW1 gave clear and uncontradicted evidence of the circumstances leading to the shooting that led to the death of the deceased. He told the Court in his testimony in chief that he works as a gateman at the Demest Property in Katampe Extension, FCT, Abuja. He then testified as follows:
“This is what happened on the 13/10/2018. I am a gateman. The deceased Anita was our tenant. She was going out and I opened the gate for her and after she left I closed it back, I then went to get something in one shop. I saw a small Mazda car which drove and double — crossed (blocked) her. The Defendant standing here in Court came out of the car and punctured the back tyre and as Anita was trying to open her car door, he shot into the door. He had punctured her back tyre by shooting at it with a small gun. He also shot the girl (Anita),
I was shouting and my friend came out. We then went and met the Defendant and asked him why he shot the girl. He was not saying anything. So my friends now came and threatened to beat him. That was when he brought out an identity card saying he is a Police Officer. As we were there, he made a call to the Police Station at Gwarimpa, they came with a Hilux Vehicle. They took myself and the lady to the hospital but the Defendant did not follow us”.
It should be noted that the PW1 had made a statement to the police. The said statement is in evidence as Exhibit P1. I have read the said statement, and do not find any conflict between the said Exhibit P1 and the testimony of the witness in Court. It is true that the witness did not describe the act of shooting of the deceased the same way he did in Court but in my view, it does not derogate from the core issue that the Appellant shot at the deceased. In any case, if there was any difference, such was elicited under cross-examination by the Appellant’s learned counsel at the trial. It is settled law that, evidence elicited under cross-examination, if it relates to a fact in issue, has the same probative value as evidence elicited during examination-in-chief. Such evidence is valid and authentic, and can be relied upon in support of the case. See Akomolafe v. Guardian Press Ltd. (Printers) (2010) 3 NWLR (Pt. 1181) 338 at 351; Pius v. State (2015) LPELR-2446 (SC) and State v. Yahaya (2019) LPELR—47611 (SC). Indeed, where counsel for the accused has procured inculpatory evidence from cross-examination of a prosecution witness, he is estopped from insisting that such inculpatory evidence does not bind him. See Okpiko v. Uko (1997) 11 NWLR (Pt. 527) 94 and State v. Yahaya (2019) 14 NWLR (Pt. 1690) 397 at 435-436.
On that note, I wish to reiterate that, the PW1 had told the Court that, the Appellant shot three (3) times; at the deceased car tyre, the accused and into the air.
As held above, the evidence of the PW1 on the shooting of the deceased was never contradicted or seriously challenged in cross-examination. While the Appellant admitted that he shot at the deceased, but stated that he did so only once and at her car tyre in order to demobilize her. He contended that he had answered a distress call from his DPO in respect of a robbery incident near the scene of the shooting of the deceased. That, two of the robbers had been arrested while others run into the premises where the deceased lived. That, he only shot at the car tyre once, in order to immobilize her and that when she stopped, he discovered that she had been shot inside the compound before she drove out. The learned trial Judge reviewed such evidence and held at page 173 lines 10—174 line 5 as follows:
“On the other hand, the PW1 who is an established eye witness to the incident and resident of the same compound with the deceased, has denied that any shots were fired within their vicinity, that any suspected criminals and vehicles were recovered from their compound on the night of the incident. That being so, the burden is on the defendant to prove on a balance of probabilities, that what he has asserted is true, the said facts being matters peculiarly within his own knowledge. See Section 136, 137, 139 (1) and 140 of the Evidence Act, and the case of Ogu v. C.O.P. (2017) LPELR-43832 (SC) at 15B—15B, I have carefully searched the trial records, but I find no credible and/or admissible evidence in support of the above assertions of the defendant. In the first place, the DWII and the defendant did not witness any robbery incident at Becca Apartment, or participate in the arrest of any criminals or the recovery of any vehicles from such criminals. The story they have told this Court in that connection derives from what they claim to have heard from other persons, who never came to Court to testify in support of those allegations. The claim that some suspects ran into Anita’s adjacent compound is also something they allegedly heard from other person(s). The evidence of the two defence witnesses on these matters is therefore hearsay evidence and is inadmissible to establish the truth of those allegations. It is in the circumstance not proved that the defendant was at the locus criminis is in response to a distress call or in pursuit of some suspected criminals”.
I have held in this judgment, in agreement with the learned trial Judge, that the PW1 who was an eye witness gave uncontradicted evidence which placed or fixed the Appellant to the scene of crime. Indeed, the Appellant did not deny that he was at the scene of crime. His defence is that he was at the scene in answer to a distress call from his DPO in respect of a robbery at Becca Apartment, within the vicinity of the scene of crime. That while two of the robbers had been arrested, some of them ran into the deceased’s residence. The Appellant and his witness (DW1) alleged that, there was shooting inside the deceased’s residence and that when the deceased came out there was blood on her body. Incredibly, DW1 stated that the deceased did not know that she had been shot and that he was the one that drew the attention of the deceased that she had been shot. In resolving the issue, the learned trial Judge did not believe the story given by the Appellant and his witness.
I have carefully waded through the evidence led by the prosecution and the defence. Indeed, the PW3 who investigated the case did not say that in the course of his investigation he found that the Appellant was called because there was a robbery at Becca Apartment, Katempe. The said PW3 stated in his testimony before the Court at page 139 lines 23—30 of the record of appeal as follows:
“After that some facts emerged as to what actually happened on the 13/10/2018, Investigation showed that on the 13/10/2018 at about 21:45 hours, a distress call was put to the Accused person from the manager of Becca Apartment, Katempe, and the Accused and three other policemen went to the Apartment from where the distress call came. The reason for the distress call as communicated by the manager was that there were some thieves trying to make away with two cars parked at the Apartment”.
The PW3 reiterated the fact that from his investigation, there was no multiple gunshots by any “robbers” when he started in cross-examination at page 142 lines 4-6 of the record of appeal as follows:
“…It is not correct that there were multiple gunshots by the thieves that resulted in the distress call from the manager of Becca Apartment”.
It is clear that there was no robbery and therefore no shooting incident which led to the distress call made to the Appellant. This fact corroborates the testimony of PW1 that there were no gunshots from the thieves that attempted to steal a car at Becca Apartment which drew the attention of the police. The PW1 insisted under cross-examination that he heard three gunshots, all fired by the Appellant. The PW1 therefore denied that there was any gunshot in the premises where the deceased lived and where he (PW1) worked as a gateman nor anywhere near the vicinity of their premises except those fired by the Appellant. What transpired at Becca Apartment was mere case of car theft and not robbery. That is why the learned trial Judge found at page 177 lines 12—23 of the record of appeal as follows:
“I have said that the main plank of the defendant’s defence is that the deceased was shot by suspected criminals inside her compound, lying adjacent to Becca Apartment, and that he had been sent to the said compound to see to the possible arrest of the said suspects who were allegedly hiding there. I have stated also that credible evidence in support of this story is lacking, Infact, from the surrounding circumstances as narrated by both prosecution and defence witnesses, this story is implausible. Let me explain. Assuming there was an incident at Becca Apartment, which prompted a distress call to the defendant, it has not been shown that it was a case of armed robbery or one involving a violent crime…”
The learned trial Judge made further findings at page 178 lines 1—22 of the record of appeal as follows:
“It is clear from this that, what was at play was a mere case of theft. There is no allegation that when the police arrived the scene there was any exchange of gunfire or that the two suspects arrested were found in possession of guns or other offensive weapon(s), As a matter of fact PW3 stated emphatically that the distress call from the Manager of Becca Apartment was not based on any shooting incident…
So, it is conclusive that the incident which took the defendant to Becca Apartment was not an armed robbery, and no guns were involved as none was used by, or recovered from, any of the suspects arrested at the scene. Now, the defendant was not present when the arrests were made at Becca Apartment, and did not see any of the suspects run into the adjacent compound. It is therefore hardly credible for him to assert that some suspects involved in the same incident, and having heavy ammunition were taking refuge in the adjacent compound. The said claim is not supported by any of the surrounding facts that one can refer to”.
The learned trial Judge then concluded at page 180 lines 3—17 the record of appeal as follows:
“Having failed to show on a balance of probabilities that the deceased was shot inside her compound by suspected criminals as he alleged, or that any other shooting occurred beside the shot(s) he fired, the only credible evidence this Court can act upon remains that of the PW1 detailing how the deceased was killed. The eye witness evidence of PW1 placed the defendant right at the crime scene, and he has not denied that; it also credits him with the fatal shooting at the deceased, his denial holds no water in the absence of proof that the fatal shot emanated from any other source. With the only rational and admissible evidence showing that the defendant was the only person shooting at the deceased on the night in question, the conclusion is inevitable that it was his shot which killed the deceased”.
Considering the totality of the evidence led at the trial, I am in agreement with the above findings of the learned trial Judge. The evidence adduced did discredit and also controverted the defence of the Appellant that there was a shooting as a result of a robbery. It also controverts the testimony of the Appellant and that of his witness that there was a shooting in the deceased’s premises and that the deceased was hit as a result of that shooting. I am of the view that, if truly there was such shooting, the PW1 who was gateman at that premises and opened the gate for the deceased to go out, would have said so. Furthermore, the PW3 who investigated the case, told the Court emphatically, that his investigation did not disclose that there was any other shooting aside that of the Appellant. Furthermore, the learned trial Judge upon review of the defence of the Appellant found that, the Appellant and his witness (DW1), gave exaggerated and contradictory testimonies on what transpired at the scene of the crime. The exaggerations and contradictions were pointed out by the learned trial Judge at page 182 of the record of appeal as follows:
“DW1 said they both heard one gunshot when the defendant asked him to stop the car, and that the defendant called his DPO and informed her that “there is another gunshot here”, DW2 on his part, told a different story; he claimed there were multiple gunshots which continued as they were driving towards the adjacent apartment, DW1 in his evidence also said they both had jumped out of their car, and narrowly escaped being hurt when the deceased drove out with her Honda car and hit their vehicle; and that the defendant shot at the deceased’s car tyre after he jumped out of their Mazda car. There is no reference to any such occurrence throughout the evidence of DW2. Infact in his extra-judicial statement to the Police at C.I.D (Exhibit P3); DW2 said he shot at the deceased’s car from his hideout, He also stated in the same Exhibit P3, that it was one gunshot they heard, as against the multiple continuing gunshots he claimed in oral evidence to have heard coming from the adjacent apartment. In my assessment of their conduct in the witness box, I did not find either of these two witnesses to be truthful or credible”.
The Appellant had a duty by this appeal to demonstrate before us how those findings of the trial Court were wrong. I find that those findings were profoundly supported by the evidence on record. The Appellant however expended considerable time in his brief of arguments to demonstrate how many shots were fired at the time and scene of the incident. The argument as presented by the Appellant is that only one shot was fired by the Appellant and that there were several other shots inside the deceased’s premises. His argument is that he released only one shot at the deceased car tyre in order to immobilize it, and that the deceased could not have been hit by the bullet released by him. The learned trial Judge upon evaluation of the evidence, found such defence to be contradictory and therefore unbelievable. The learned trial Judge found, and I agree with that finding, that the material issue in the case, is whether, the Appellant shot at the deceased during the incident that led to the death of the deceased.
This defence of the Appellant was built on the assertion by the Appellant that, the gun which he used has the capacity for only eight (8) rounds of ammunition and that after the incident, seven (7) rounds were left. That it therefore means that the fatal shot could not have been from the gun operated by him particularly when the only shot he fired was aimed at and did hit the deceased’s car tyre. That in the circumstances, there should have been evidence by way of ballistic examination to establish whether the bullet that hit and killed the deceased was fired from the pistol (gun) used by the Appellant. On this, the learned trial Judge evaluated the evidence and held at page 186 lines 1—13 of the record of appeal as follows:
“I am not impressed by this argument, the established facts of this case are that the defendant was the only person shooting at the deceased on the night in question. The deceased died of gunshot injuries sustained in the incident in which the defendant has himself admitted firing at her car. Furthermore, there is incontrovertible eye-witness account from PW1 to the effect that the defendant shot Anita through the door of her car, and that in his presence she was taken from the scene directly to the hospital where she gave up the ghost soon after arrival there. I have no doubt in my mind from the strength of the available evidence that it was the defendant who shot and killed the deceased on the 13/10/2018″.
I am of the view that the above finding of the learned trial Judge is on solid foundation. There is the uncontroverted credible evidence of PW1 who gave an eye-witness account of the events that led to the death of the deceased. The assertion by the Appellant that there were numerous other shots; and that he fired only one shot has been contradicted and found not to be credible. Having thus proved, the onus was on the Appellant to adduce credible evidence that he fired only one shot, and at the tyre of the deceased’s car. Instead of adducing evidence, apart from his bare assertion, the Appellant sought to push the burden of proving his defence on the prosecution. There was no evidence, apart from the bare assertion of the Appellant that his gun contained eight bullets and that he expended only one bullet.
It is my view, in agreement with the finding of the learned trial Judge, that the fact of how many bullets or ammunitions the Appellant’s service pistol contained at the time of the incident was within the person’s knowledge of the Appellant. He therefore had the burden of proving his assertion, though, on a balance of probabilities. See Section 136(1) of the Evidence Act, 2011 which stipulates that:
“135. (1) The burden of proof of 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”.
In the instant case, the only evidence on the issue, which the Appellant seeks to rely on came through PW3. The said PW3 stated in his evidence before the Court as follows:
“During investigation, the Accused person Para pistol officially issued to him was retrieved from him. The pistol was issued with 8 rounds of 5mm ammunition. When the pistol was retrieved, it was 7 rounds ammunition that were found. That he fired a shot at the scene”.
The PW3 reiterated in cross-examination that 7 Para ammunitions were recovered by the Police from the Appellant. It should be noted that, the PW3 was not at the scene when the offence was committed. He was not the person who issued the ammunitions to the Appellant. He also did not recover the said pistol from the Appellant. That is because, he (PW3) merely stated in lines 27—28 of page 141 of the record of appeal that:
“It is correct that the Police recovered 7 para ammunitions from the Defendant after he expended one.”
That statement clearly indicate that it was the Police and not the PW3 who recovered the pistol. That being so, it is my view that PW3 was not in a position to give evidence of how many bullets were issued to the Appellant and how many were expended. Incidentally, the statement of the Armourer who issued the ammunitions to the Appellant was front-loaded but same was never tendered in evidence nor was the Armourer called to testify.
It is the law that the prosecution are not bound to call any particular witness. The duty of the prosecution is to call vital witnesses, failure of which may be fatal to the prosecution. In other words, the prosecution is not under any obligation to call a particular witness (es), if they can prove their case without calling the witness. See Okoroji v. State (2002) 5 NWLR (Pt. 758) 21 and Idagu v. State (2018) LPELR—44343 (SC). The Appellant cannot therefore blame the prosecution for not calling the Armourer whose statement had been frontloaded in the proof of evidence, for not calling the Armourer who issued the pistol and ammunitions to him (Appellant). It is therefore my view, that the Appellant failed to controvert the evidence led by the prosecution that it was one of the shots fired by him, that mortally wounded the deceased, thereby leading to her death.
Learned senior counsel for the Appellant also complained, that the trial Court gave pre-eminence to the evidence of the PW1 over that of the PW3. Indeed, the learned trial Judge held that, the bulk of the evidence led through PW3 was what he was told by other persons who did not even testify. That such evidence, is merely admissible to show that he may have received the information he narrated, but is not admissible as the truth of such information. The learned trial Judge then held, correctly, in my view that:
“The only evidence of the witness which could have been of some probative value is that which relates to what he personally did, such as obtaining statements from the nominal complainant, the defendant and some other persons, and retrieving the deceased Anita’s car from the PW2 for investigation…”
Indeed, it is the law that, the evidence of a Police Investigating Officer as to what he did and saw in the course of the investigation is admissible. However, if it relates to other information told to him by other persons in the course of investigation, such information is admissible to show that he received such information only but not to establish the truth of such information except where such information has been corroborated by some other evidence. However, where the evidence relate to what the Investigating Police Officer saw or discovered in the course of the investigation, it is admissible and entitled to be accorded the required or appropriate probative value. See Oladepo v. State (1994) 6 NWLR (Pt. 348) 101; Nwachukwu v. State (1985) 3 NWLR (Pt. 11) 218 at 227 and Anyasodor v. State (2018) LPELR-43720 (SC).
In the instant case, the learned trial Judge found the testimony of PW3 to be mostly hearsay. The learned trial Judge who had the benefit of seeing or observing and hearing the PW3 as he testified, found him not to be a credible witness. The learned trial Judge made reference to the evidence of PW3, to hold that, the said witness impressed him as someone with a mission to twist the facts and deceive the Court in order to get his fellow Police Officer off the book. That, the testimony of PW3 was a complete fabrication to put the Appellant in good light, and that the evidence of PW3 is a cocktail of falsehood and inadmissible hearsay and accordingly rejected as not worthy of any probative value.
I have carefully read the evidence of the PW3. It is obvious that, aside the fact of recovering the statement of the Appellant, the interviewing of the witnesses, the recovery of the deceased’s vehicle for inspection, his evidence as to what transpired at the time and place of the incident that led to the death of the deceased, was merely admissible hearsay, same being statements made to him by other persons who were not called to testify. See Sylvester Utteh v. The State (1992) LPELR—6239 (SC). Though, admissible hearsay evidence may be admitted, same cannot be accorded any probative value. See Gbafe v. Gbafe & Ors. (1996) 6 NWLR (Pt. 455) 417; Haruna v. A.G; Federation (2012) and Natsaha v. State (2017) 18 NWLR (Pt. 1596) 38.
In the instant case, the PW3 did not witness the events that led to the deceased’s death. All he narrated on the issue was from information given to him by others who were not even called to testify. On the other hand, PW1 gave evidence as an eye witness. Thus, when it comes to events that led to the death of the deceased, the evidence of PW1 without doubt has greater probative value than that narrated by PW3. On that note, it is my view that the learned trial Judge was right when he gave preference to the evidence of PW1 over that of the PW3.
Having held as above, it is apparent that the issues raised in this appeal have been resolved against the Appellant. On that note, it is my view, which I hold, that this appeal lacks merit. It is accordingly dismissed. The judgment of the F.C.T. High Court of Justice, delivered on the 27th day of November, 2021 in Suit No: CR/004/2018 is hereby affirmed.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been afforded in advance, a draft copy of the leading judgment just delivered by my noble lord. Haruna Simon Tsammani, JCA, and I am in complete agreement with the lucid reasoning and impeccable conclusion reached therein to the effect that the appeal lacks merit and is therefore, liable to be dismissed.
My lords, let me just say a word or two by way of my humble contribution to the rich analysis in the leading judgment.
In law, burden of proof is strictly and squarely on the Prosecution, the Respondent as in the instant appeal, to prove by credible evidence the guilt of the Accused person, the Appellant in the instant appeal. This can be achieved by the Prosecution leading evidence in proof of all the essential elements of the offence charged, as in the instant appeal, Culpable Homicide not punishable with death contrary to Section 222 (3) and punishable under Section 224 of the Penal Code, by either direct or confessional or circumstantial evidence, each of which if believed is sufficient to ground the conviction of the Accused person. See Miller V. Minister of Pensons (1947) 2 ALL E.R. 373 per Lord Denning. See also Clement V. The State (2021) LPELR-55642 (CA) per Georgewill, JCA.
On the evidence as in the printed Record of Appeal, particularly the evidence of PW 1 the acts resulting into the untimely death of the deceased in her prime of life were callous, unlawful and rash. There can be reason whatsoever and howsoever in the facts and circumstances of this appeal, for the shooting and killing of the unarmed, defenseless and innocent deceased right in the precinct of her own abode by the Appellant. What on earth and what manner of duty would warrant the reckless, callous and utter disregard to the life of the deceased as displayed and carried out by the Appellant? None whatsoever! The Appellant had no regard for the sanctity of the human life. There was in humble but firm view no such call to duty on the Appellant to recklessly and without any just cause or reason open fire on the deceased rather than protecting her from the dangers and perils of the men of the underworld. Whom he had allegedly gone in search of on the fateful day.
Thus, so regrettably and saddening, rather than the Appellant to ensure the safety of the deceased he rather compounded her horrors and after having escaped from the hands of the alleged armed robbers, only for her to die in the hands of Appellant, a very Senior Police Officer of the rank of a Deputy Superintendent of Police, paid from the funds of the very tax payers to protect her. What a cruel irony of fate and such is the paradox of life! May her faithful departed soul rest in peace! See IGP & Ors v. Ikpila & Anor (2015) LPELR–40630 (CA) per Georgewill, JCA.
In the circumstances therefore, having found that the Court below was right in convicting and sentencing the Appellant as required by law, upon the proof of his guilt beyond reasonable doubt by the Respondent, in law, this Court would have no business interfering with the correct findings of the Court below. This is so because, an appellate Court has no duty interfering with the correct findings of a trial Court even where the reason adduced and relied upon by the trial Court to arrive at the correct findings turns out to be wrong. See Alhaji & Ors. V. Alhaji & Ors. (2004) 13 NWLR (Pt. 889) 187 p. 198, where Edozie, JSC., had pronounced finality on this issue, thus:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….”
It is the light of the above few words of mine and for the fuller reasons adroitly marshalled out in the leading judgment that I too hold that the appeal lacks merit and ought to be dismissed. Accordingly, I join my noble lord and the Presiding Justice of the Abuja Division, in the leading judgment to dismiss this appeal for lacking in merit and affirm the judgment of the Court below.
ISAH BATURE GAFAI, J.C.A.: I have before now read in draft, the judgment delivered by my learned brother Tsammani, JCA. I agree with illuminating reasonings expressed therein and the conclusions reached thereby. I adopt those reasonings as mine; by which I too adjudge this appeal as one without merit. In consequence, I too dismiss the appeal and affirm the lower Court’s conviction and sentence on the Appellant.
Appearances:
Dr. O. Ikpeazu, SAN with him A.P. Samson; Esq and C. Nwachukwu; Esq. For Appellant(s)
A. K. Alilu; Esq Asst. D.P.P, Federal Ministry of Justice with him K. A. Fagbani; Esq Pron. S. C. For Respondent(s)
