UMAR v. THE STATE (2020)

UMAR v. THE STATE

(2020)LCN/15729(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/G/5/C/2020

Before Our Lordships:

JummaiHannatu Sankey Justice of the Court of Appeal

ElfriedaOluwayemisi Williams-Dawodu Justice of the Court of Appeal

James GamboAbundaga Justice of the Court of Appeal

Between

MUSTAPHA UMAR (AKA BURATAI) APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

THE VIOLATION OF SOME PRINCIPLE OF LAW WHICH OCCASIONED MISCARRIAGE OF JUSTICE

The issues of facts are pre-eminently those of the trial Court, therefore evaluation and whether or not to give probative value to same remains with the trial Court. Where, the appellate Court finds that the evidence was not properly evaluated by the trial Court or there was a violation of some principle of law or procedure which occasioned miscarriage of justice or injustice, it will in the interest of justice have no option but to interfere and disturb the decision of the Court. See the cases of ENANG VS. ADU 1981 11-12 SC 25, OKAGBUE VS. ROMAINE 1982 5 SC 133, GABRIEL OKUNZUA VS. MRS AMOSU & ANOR. 1992 LPELR SC 178/1990, BALOGUN VS. AKANJI 1988 1 NWLR 301 SC and OJOMU VS. AJAO 1983 9 SC 22. Having found as contained in the lead Judgment the decision reached by the trial Court must be disturbed and I equally so find. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A

It is the law that in establishing the ingredients of each of these counts of charge, the prosecution may employ one or more of the following modes of proof, i.e. by the confessional statement of the accused person, if any; by circumstantial evidence; or by direct evidence, being eyewitness evidence – Archibong V State (2006) 14 NWLR (Pt. 1000) 349; Igabele V State (2006) 6 NWLR (Pt. 975) 103. The question which therefore arises iswhether or not the ingredients of the offences of conspiracy, voluntarily causing hurt and culpable homicide punishable with death were proved beyond reasonable doubt as required under Sections 135 of the Evidence Act, 2011 sufficient to ground the conviction of the Appellant by the trial Court. JUMMAI HANNATU SANKEY, J.C.A.

THE EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE IS THE FORTE OF THE TRIAL COURT

THE POSITION OF THE COURT TO RE-EVALUATE THE CORRECT FINDINGS AND CONCLUSIONS OF THE TRIAL COURT

The first duty of the Court therefore is to consider whether or not the findings of the trial Court on the facts constituting the ingredients of the offences charged did not flow from the proven facts; or whether they run contrary to proved facts, and so were perverse. Where this is not the case, the Court would not be in a position to re-evaluate the correct findings and conclusions of the trial Court. In carrying out this duty, I turn my attention to the evidence led by the parties vis-a-vis the findings of the trial Court, i.e. whether the findings are borne out by the evidence adduced before it. JUMMAI HANNATU SANKEY, J.C.A.

THE EVALUATION OF EVIDENCE BY THE TRIAL JUDGE BEING FLAWED

It is therefore my considered view that the evaluation of the evidence by the trial Judge in this respect is flawed. His findings did not flow from the available evidence on record. Indeed, by completely exonerating the 2nd accused person and convicting the Appellant on the same evidence, the learned trial Judge, with the greatest respect, engaged in nothing but a somersault, and so did not align his findings with the evidence placed before him. In the circumstances, the decision thereon is perverse and contrary to the facts in evidence. JUMMAI HANNATU SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice of Bornu State sitting in Maiduguri, delivered on July 18, 2019, Coram: Kumalia, J. Therein, the Appellant was found guilty on the three-count charge of voluntarily causing grievous hurt, conspiracy and culpable homicide punishable with death.

The facts leading to the Appeal are briefly as follows:
On October 8, 2018 at about 8.30pm, one Alfred Tempeyo lodged a report at the Metro Police Station in Maiduguri complaining that on the same date at about 8.00pm, three Military personnel in uniform and one in mufti popularly called “Buratai”, went to the Wulari Mammy Market and fired their guns sporadically in the air. When they were cautioned on their reckless acts and unprofessional display of force, Buratai attempted to stab the complainant on his chest but succeeded in slashing his two fingers when he (complainant) put up his hands defensively across his chest. Consequently, he sustained serious injuries to his fingers. Buratai also slashed the palm of one Ibrahim Joseph, a security guard attached to Wulari Mammy Market. In addition to this, one of the Military personnel who was with Buratai shot the complainant’s 17 year old son, Jude Alfred, on his chest and he died instantaneously. Thereafter, the Appellant and other military personnel ran away.

Following this report, the Appellant and the 2nd accused before the trial Court, Hassan Abdullahi, were arrested. The other military personnel could not be identified and so were not arrested. After due investigations, both were arraigned before the lower Court on a three-count charge of voluntarily causing grievous hurt, conspiracy and culpable homicide punishable under Sections 248, 97(1) and 221 of the Penal Code Law of Bornu State.
In proof of the charge, the Respondent adduced evidence through eight (8) witnesses and three (3) Exhibits. In their defence, the Appellant and 2nd accused person testified and called two 2 other witnesses. Thereafter, learned Counsel for the Appellant, 2nd accused person and the Respondent addressed the Court on the issues of facts and law arising in the case. At the close of trial, the learned trial Judge delivered his Judgment on July 18, 2019wherein he discharged and acquitted the 2nd accused person while he convicted the Appellant as charged.

Disheartened by the outcome of the trial, the Appellant filed this Appeal on 09-10-19 wherein he complained on four (4) grounds. The Record of Appeal was however not transmitted to this Court until January 13, 2020.

At the hearing of the Appeal on 09-07-20, Abdulmutallib Babawuro Esq., adopted the Appellant’s Brief of argument filed on 18-02-20 and settled by A.A. Alhaji, Esq., in urging the Court to allow the Appeal. In like vein, M.A. Tijani Esq., Principal State Counsel with the Ministry of Justice, Bornu State adopted the Respondent’s Brief of argument filed on 22-06-20, deemed duly filed on 09-07-20 and settled by her, in urging the Court to affirm the conviction and sentence of the trial Court and so, to dismiss the Appeal.

The Appellant in his Brief of argument formulated four issues for determination from the four grounds of appeal as follows:
1. Whether or not the trial Court properly evaluated the evidence by the parties. (Ground 1)
2. Whether or not the trial Court was right to convict the Appellant for the offence of conspiracy. (Ground 2)
3. Whether or not the offence of culpable homicide punishable with death was established against the Appellant. (Ground 3)
4. Whether or not from the totality of the evidence adduced by the prosecution were full of material contradictions. (Ground 4)

On his part, the Respondent in his Brief of argument distilled four (4) issues for determination also as follows:
1) Whether the trial Court properly evaluated the evidence of the prosecution witnesses convicted and sentenced the Appellant. (Ground 1)
2) Whether the trial Court was right to have convicted the Appellant for the offence of conspiracy. (Ground 2)
3) Whether the offence of culpable homicide punishable with death has been proved against the Appellant. (Ground 3)
4) Whether from the totality of the evidence adduced by the prosecution there exist material contradictions in the testimonies of the prosecution witnesses so as to render it inadmissible. (Ground 4)

Upon an examination of the two sets of issues, it is rather apparent that they are virtually identical. In addition, the issues overlap and dovetail into each other. I shall therefore compress and re-frame them as follows:
I. Whether the charge of conspiracy, voluntarily causing grievous hurt and culpable homicide punishable with death as charged was proved against the Appellant by credible evidence.

ARGUMENTS
Learned Counsel for the Appellant submits that none of the eight (8) prosecution witnesses linked the Appellant to the death of the deceased. Counsel referred to the evidence adduced of PW1 and PW2 to submit that it was the 2nd accused person who shot the deceased and that the Appellant did not carry a gun. Therefore, since the 2nd accused person was discharged and acquitted of the offences charged, the Appellant cannot be convicted of conspiracy – Adava V State (2006) 9 NWLR (Pt. 984) 152-161; Shodiya V State (1992) 3 NWLR (Pt. 230) 457-471; Salawu V State (2014) AELR 5486 SC; Akpan V State (1994) NWLR (Pt. 368) 347; Uwagboye V State (2003) 12 NWLR (Pt. 1102) 621.

Counsel submits that the Appellant’s defence was that he was not at the scene of crime, and that Exhibits C1 and C2 (his extra-judicial statement) did not fix him at the scene of crime. Also, that the failure of the Respondent to present his girlfriend, Fati as a witness, robbed him of the right to cross-examine her. This infringed upon his right to fair hearing – Salawu V State (supra); Ositola V State (2012) 12 SCM 12; Jimoh V State (2014) 235 LRCN 119, 159.

With regard to the conviction of the Appellant for culpable homicide punishable with death, Counsel submits that none of the witnesses linked the Appellant to the death of the deceased. Reliance was placed on the evidence of PW1, PW2 and PW3 who all stated that it was the 2nd accused person who shot and killed the deceased. In addition, Counsel submits that the Respondent failed to prove that the Appellant intended to kill the deceased. Therefore, that where any the ingredients of the offence are not proved, it will result in an acquittal of the Appellant – Adava V State (supra).

Counsel also refers to the defence of the Appellant as DW3 and submits that his defence of alibi raised therein and by his girlfriend, Fati, in Exhibit B1, and was also corroborated by DW4 and DW5, remains unchallenged. Therefore, that the Respondent failed to prove the charge of culpable homicide against the Appellant. Counsel further submits that the evidence adduced by the prosecution was filled with contradictions and inconsistencies. Specific reference is made to the evidence of all the prosecution witnesses, PW1- PW8. He submits that the trial Court was wrong to have relied on such evidence; more so that it did not consider the defence of the Appellant contained in his extra-judicial statement, Exhibits C1 and C2, which it relied upon to convict the Appellant.

Finally, Counsel urged the Court to resolve the issues in favour of the Appellant to allow the Appeal, set aside the Judgment of the trial Court, quash the conviction and sentence, and discharge and acquit him of the charge.

In response, learned Counsel for the Respondent submits that there is ample evidence upon which the trial Court arrived at its decision. He and refers to the evidence of PW1 to PW8, and submits that the charge was proved by direct/eyewitness evidence.

Counsel submits that, from the evidence, the Appellant had an initial misunderstanding with a boy who had accosted his girlfriend at Mammy market. He beat up the boy but there was an intervention by an unidentified and unnamed man. The Appellant then left the market in anger only to return with three other armed soldiers who fired their guns randomly. The Appellant inflicted stabbed wounds on PW1 and PW2 and one of the soldiers shot and killed the deceased.

Counsel submits that where two persons intentionally carry out an act jointly, it is the same as if each had done it alone – Michael V State (2008) 9 MJSC 61, 74-75. Therefore, in the eye of the law, the Appellant is deemed to have shot the fatal shot that killed the deceased, as it becomes immaterial which of the persons actually shot him. The person delivering the blow is said to be no more than the hand by which all the others struck – Alarape V State (2011) 5 NWLR (Pt. 705) 79, 102, 103; Oyakire V State (2006) SC; Michael V State (supra) 73-74. Counsel therefore submits that by Sections 19(2) and 79 of the Penal Code, the act of the Appellant caused the death of the deceased.

Counsel further submits that the trial Court evaluated the evidence before it, particularly Exhibits C and C1, as well as the evidence of PW1 to PW8, in coming to the conclusion that the prosecution had proved the ingredients of the offence of conspiracy under Section 97(1) of the Penal Code.

Counsel submits that the testimony of the Appellant as DW3 corroborated the testimonies of PW1 to PW5 and Exhibits C1 and C2, in proving the ingredients of the offences charged under Sections 97(1), 248 and 221 of the Penal Code. He submits that evidence which relates to things said or done by one conspirator or the other in the execution or furtherance of the common purpose of all such conspirators is admissible against all of them – Okosun V Bendel State (1985) 3 NWLR (Pt. 12) 283, 298; Kayode V State (2016) 12 NCC 131, 193.

On the submission that the Respondent failed to call the Appellant’s girlfriend as a witness, Counsel submits that from the evidence of PW8, she was initially arrested but was later released. Therefore, her statement to the Police was tendered in evidence in an effort by the prosecution to lay bare before the Court all the witnesses needed to arrive at a just decision. Counsel submits that the prosecution is not duty-bound to call a host of witnesses since the Court can convict even on the evidence of a single witness once it is believed – Oladele V State (2012) 9 ACLR 93, 100-112.

Thus, the failure to call Fati as a witness is not fatal to the case of the prosecution more so as her statement was made available to the Court. However, the fact remains that the Appellant was fixed to the scene of crime and the deceased was killed by gunshots.

On proof of the charge of culpable homicide under Section 221 of the Penal Code, Counsel referred to the evidence of PW1 to PW8 and Exhibits C1 and C2. He contends that from these pieces of evidence, the death of Jude Alfred is not in dispute; the identification of the Appellant was made both at the scene of crime as well as in the dock by the prosecution witnesses. Counsel submits that it did not matter that the Appellant did not shoot the deceased himself. In law, the Appellant is deemed to have carried out the fatal shot. Thus, the act of the Appellant caused the death of the deceased in line with Sections 19(2) and 79 of the Penal Code Law – Alarape V State (supra); and Oyakire V State (supra).

In addition, Counsel submits that, assuming without conceding that Exhibits C1 and C2 was not confessional, PW1 to PW5 gave eyewitness accounts of the part played by the Appellant in the incident on the fateful night. However, that Exhibits C1 and C2 linked the Appellant directly with the commission of the crime. Also, Counsel submits that the learned trial Judge properly considered all the defences available to the Appellant and evaluated all the evidence adduced by the parties before he convicted the Appellant at pages 60-68 of the Record.

On the alleged contradictions and inconsistencies in the evidence of the prosecution witnesses, Counsel submits that for a contradiction to be fatal to the prosecution’s case, it must not only relate to a material fact, but such must lead to a miscarriage of justice -Oladele V State (supra) 101, 116. Reference is made in particular to the evidence of PW1 and PW2 on the injuries inflicted on them by the Appellant to submits that failure to tender their medical reports neither amounts to contradictions or inconsistencies in their evidence nor does it affect the evidential value of the sum total of the evidence adduced by the prosecution. It is therefore not fatal to the prosecution’s case as there is sufficient evidence of how the deceased met his death by the act of the Appellant – Onwumere V State(2009) 8 ACLR 411, 449; Michael V State (supra). Counsel therefore urged the Court to affirm the conviction and sentence of the Appellant and to dismiss the Appeal.

RESOLUTION OF SOLE ISSUE
The Appellant was charged for the offences of conspiracy, voluntarily causing grievous hurt and culpable homicide punishable with death punishable under Sections 97(1), 248 and 221 of the Penal Code Law, Bornu State. Upon his arraignment, he pleaded not guilty to all the counts of charge, and the Respondent made valiant efforts to marshal evidence in proof of the charge. This was done through eight (8) witnesses and three (3) Exhibits. The Appellant, in an attempt to deflect the grave allegations in the charge against him, testified in his defence as DW3, called two other witnesses, DW4 and DW5, to buttress his evidence. He also relied on his extra-judicial statement to the Police which was tendered by the Respondent, Exhibits C1 and C2. Therein, he similarly denied the allegations and set up a defence of alibi.

As mentioned earlier in the body of this Judgment, the Appellant was charged along with one Hassan Abdullahi as the 2nd accused. From the evidence of PW1, PW2, PW3, PW4 and PW5, the 2nd accused was identified as the actual person who shot the deceased to death while in the company of the Appellant and other soldiers; who in turn was identified by the same witnesses as the person who stabbed PW1 and PW2 with a knife thereby causing them grievous hurt.

However, at the close of trial, the learned trial Judge disbelieved the evidence of the prosecution witnesses and held that it was designed to “rope in” the 2nd accused. He therefore found that all three counts of the charge had not been proved against the 2nd accused person and so, he was discharged and acquitted of the charge. I am not aware that the Respondent has filed any Appeal against this verdict.

It is the law that in establishing the ingredients of each of these counts of charge, the prosecution may employ one or more of the following modes of proof, i.e. by the confessional statement of the accused person, if any; by circumstantial evidence; or by direct evidence, being eyewitness evidence – Archibong V State (2006) 14 NWLR (Pt. 1000) 349; Igabele V State (2006) 6 NWLR (Pt. 975) 103. The question which therefore arises is whether or not the ingredients of the offences of conspiracy, voluntarily causing hurt and culpable homicide punishable with death were proved beyond reasonable doubt as required under Sections 135 of the Evidence Act, 2011 sufficient to ground the conviction of the Appellant by the trial Court.

In making a determination one way or another, this Court is mindful of the fact that, with regard to findings of facts, the evaluation of evidence and ascription of probative value to the evidence is the forte of the trial Court. Thus, once the trial Court has discharged its duty on the strength of the evidence placed before it, unless it is established that its findings and conclusions were perverse and/or not supported by the evidence adduced before it, an appellate Court will not interfere where the conclusion reached is correct, even if the reasoning turns out to be wrong – Ndayako V Dantoro (2004) 13 NWLR (Pt. 889) 187; 198.
Consequently, an Appellate Court is generally hesitant to interfere with the Judgment of a trial Court when it was not privileged to see the witnesses testify and observe their demeanour. It is for this reason that Appellate Courts do not, as a matter of course, readily substitute their own views for those of trial Courts except where it is established that such decisions were perverse. Thus, an appellate Court will only intervene to re-evaluate the evidence where it is shown that the findings made and the conclusions reached by the trial Court did not flow from the proved facts or runs contrary to the proved facts – Sa’eed V Yakowa (2013) All FWLR (Pt. 692) 1650, 1681.
The first duty of the Court therefore is to consider whether or not the findings of the trial Court on the facts constituting the ingredients of the offences charged did not flow from the proven facts; or whether they run contrary to proved facts, and so were perverse. Where this is not the case, the Court would not be in a position to re-evaluate the correct findings and conclusions of the trial Court. In carrying out this duty, I turn my attention to the evidence led by the parties vis-a-vis the findings of the trial Court, i.e. whether the findings are borne out by the evidence adduced before it.

The Appellant’s Counsel has contended that the Respondent failed to prove the ingredients of the offence of conspiracy, voluntarily causing grievous hurt and culpable homicide punishable with death to warrant his conviction. Taking it serially, in respect of the conviction for voluntarily cause grievous hurt, the prosecution adduced evidence through PW1, PW2, PW3, PW4 and PW5 to establish that the Appellant acted in concert and agreement with the 2nd accused person, along with other unidentified soldiers, to cause grievous hurt to PW1 and PW2.

The evidence on Record discloses that the PW1 and PW2 who were the direct victims of the crime, and they positively identified the Appellant as the actual person who attacked them with a knife, cutting their fingers in the process which led to permanent disfigurement. Contrary to the submissions of Counsel for the Appellant, the grave injuries sustained by the witnesses were directly linked by credible evidence to the acts of the Appellant; and the scars and disfigurement of their fingers were shown in Court which led the learned trial Judge to make observations on record that the fingers were scarred and bent. The Appellant was in the company of the 2nd accused person and other unidentified soldiers when heviciously attacked the defenceless PW1 and PW2.

In an effort to debunk these allegations which were buttressed by the evidence of five witnesses, the Appellant raised the defence of alibi. He contended that he was not in the vicinity of the Mammy market at the time the incidents were said to have occurred. In this regard, he also placed reliance on his two extra-judicial statements, Exhibits C1 and C2, presented in evidence by the Respondent.

In his Judgment, the learned trial Judge evaluated and considered the defence of alibi raised by the Appellant and made his findings disbelieving it and finding that it was not proved. I agree with him. Contrary to the strenuous attempts made by the Appellant to establish this defence, the evidence of PW1 and PW2, the victims of the knife attacks, fixed him to the scene of crime at Mammy market at about 8.00pm on the date in question. Also, PW3 and PW4 who identified him as a well-known soldier around the market popularly known as “Buratai”, gave eyewitness testimony fixing him to the scene. What is more important is the Appellant’s own additional statement to the Police, Exhibit C2, where in the Appellant himself admitted that he was at the Mammy market at about 7.30pm on that fateful day. Thus, the findings of the trial Court in this regard are borne out by a combination of these pieces of evidence. The prosecution thereby proved the ingredients of the offence of causing grievous hurt under Section 248 of the Penal Code Law. Hence, the finding of the lower Court that the Appellant inflicted stab wounds on the PW1 and PW2 thereby causing them grievous hurt cannot be disturbed.

In respect of the conviction of the Appellant for conspiracy and culpable homicide punishable with death, again the evidence of the PW1, PW3, PW4 and PW5 are pivotal. These witnesses gave a combination of direct and indirect evidence on the incident of the shooting of the deceased, Jude Alfred, to death. They all stated that they witnessed when the Appellant came to Mammy market with a number of soldiers and generally threatened the peace of the citizenry, randomly firing shots and attacking them physically. When they were challenged by PW1, his wife PW5 and the deceased, Jude Alfred, their son who dared to speak up for his parents as they were being threatened and harassed by the soldiers, the Appellants and his cohorts brutally attacked them to the extent of shooting the deceased in the chest.

PW1, PW2, PW3 and PW4 were quite categorical in their evidence that while it was the Appellant who stabbed PW1 and PW2, it was however the 2nd accused person who shot the deceased several times and even after he had fallen down, mindlessly and mercilessly killing him on the spot. However, the learned trial Judge in his wisdom took the view that the evidence was contrived and only intended “to rope in” the 2nd accused. He therefore accepted the 2nd accused person’s version of events and defence of alibi. As a result, he found the entire charge of conspiracy, causing grievous hurt and culpable homicide not proved against the 2nd accused, and so discharged and acquitted him. Since I am not aware that any Appeal has been filed against these findings by the Respondent, no further comment will be made on it.

However, the findings leading to the acquittal of the 2nd accused person has a direct bearing and consequential effect on the conviction of the Appellant for conspiracy and culpable homicide. Firstly, on the conviction of the Appellant for conspiracy as observed above, the evidence of the surviving victims and other eyewitnesses, namely PW1, PW2, PW3 and PW4, categorically pointed to the 2nd accused person as the soldier who shot and killed the deceased. However, the learned trial Judge found their evidence not credible. In fact, he categorized it as both hearsay and contrived evidence. Yet, he went ahead to convict the Appellant on this same evidence which essentially pointed to the 2nd accused person, and not the Appellant, as the person who pulled the trigger and killed the deceased. Without pronouncing on the viability of these findings in respect of the 2nd accused person, no appeal thereon having been placed before this Court, it is not feasible that the Appellant would be indicted of the direct physical act of the 2nd accused when the 2nd accused himself, the prime mover of the actual act, has been exonerated. In other words, for the Appellant to be found to have acted in concert and/or agreement with the 2nd accused to shoot the deceased, the person who actually pulled the trigger must be indicted. The 2nd accused person’s act of shooting the deceased will then also be ascribed to the Appellant, whether or not he pulled the trigger – Alarape V State (supra).
The law is settled that where two or more accused persons caused the death of a human being, they are held jointly and severally liable because the implication is that they shared a common intention. See Galadima V The State (2017) LPELR-43469(SC) 44-45, E-B, where Eko, JSC held inter alia thus:
“In the law of joint commission of crime and the liability or criminal responsibility of each person who participated in the joint act is thus, as restated by this Court in Godwin Alao V The State (2015) LPELR-24686(SC) – Where more than one person are accused of the joint commission of a crime, it is enough that they all participated in the crime. What each of the participants did in furtherance of the commission of the crime is immaterial. The mere fact that there exists the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence.”
See also Nyam V The State (1991) 4 NWLR (Pt. 185) 287, 298-404.

In the instant case, since theprime mover of the charge of culpable homicide has been exonerated and the evidence on record does not implicate the Appellant in the shooting and consequent death of the deceased, I find it difficult to understand how the learned trial Judge proceeded to convict the Appellant of the charge of conspiracy and culpable homicide. Certainly, if the evidence against the 2nd accused person had been accepted and the 2nd accused person had been convicted, then the charge of conspiracy against both the Appellant and the 2nd accused person would have a leg to stand on. This is more so that, from the facts on record, the unidentified soldiers who came along with the Appellant and 2nd accused person, were only said to have been firing their guns randomly in the air, but did not shoot anyone else, much less the deceased.

It is therefore my considered view that the evaluation of the evidence by the trial Judge in this respect is flawed. His findings did not flow from the available evidence on record. Indeed, by completely exonerating the 2nd accused person and convicting the Appellant on the same evidence, the learned trial Judge, with the greatest respect, engaged in nothing but a somersault, and so did not align his findings with the evidence placed before him. In the circumstances, the decision thereon is perverse and contrary to the facts in evidence.

Hence, based on all the above, I agree with the Appellant that the trial Court did not properly evaluate the evidence and come to correct findings in respect of the charge of conspiracy and culpable homicide. However, for the avoidance of doubt, there was ample evidence to buttress the Appellant’s conviction for voluntarily causing grievous hurt to the PW1 and PW2.

Based on these findings, I resolve the sole issue for determination partly in favour of the Appellant.
Consequently, the Appeal succeeds in part and is allowed in part as follows:
1. In respect of the conviction of the Appellant for voluntarily causing grievous hurt punishable under Section 248 of the Penal Code Law, the Appeal fails and is dismissed.
2. Consequently, the Judgment of the High Court of Justice, Bornu State in Charge No. BOHC/MG/CR/16/2019 delivered on July 18, 2019, Coram: Kumalia, J., convicting and sentencing the Appellant to three (3) years imprisonment under Section 248 of the Penal Code Law of Bornu State, is upheld and affirmed.
3. In respect of the conviction of the Appellant for the charge of criminal conspiracy and culpable homicide punishable with death under Sections 97(1) and 221 of the Penal Code Law, the Appeal succeeds and is allowed.
4. Accordingly, the Judgment of the High Court of Justice, Bornu State in Charge No. BOHC/MG/CR/16/2019 delivered on July 18, 2019, Coram: Kumalia, J., convicting the Appellant for criminal conspiracy and culpable homicide under Sections 97(1) and 221 of the Penal Code Law of Borno State, is quashed, and the sentence of death by hanging is set aside.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity to preview in draft the lead Judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA, and I agree with the reasoning and conclusion reached therein.

In consequence, and given the fuller reasons clearly laid out in the lead Judgment, I also allow the appeal in part and abide by all the orders made therein.

JAMES GAMBO ABUNDAGA, J.C.A.: I read in advance the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA. I adopt the reasoning and conclusion reached in the Judgment.

However, in adopting the reasoning and conclusion as aforestated, I will make a few remarks bordering on the conviction of the Appellant for the offence of criminal conspiracy and culpable homicide punishable with death. It is pertinent to state that where a trial Court unquestionably evaluates the evidence and appraises the facts, it is not the business of an Appellate Court to substitute its own views for the views of the trial Court. An appellate Court is not to disturb the findings of facts and evaluation of evidence by the trial Court simply because it could have done it differently so long as the Judgment of the trial Court can be supported by the evidence. It is not the duty of an appellate Court to disturb the ascription of probative value to evidence before the trial Court, unless there are good and exceptional reasons to do so. Where however, a trial Court abdicates its duty of evaluation of weight of evidence, or when it is demonstrably shown that it had not done it properly, or having done it, came to a wrong decision, an appellate Court is in a good position as the trial Court to evaluate the evidence and ascribe or approbate value thereto before taking a decision. See Emmanuel Musa vs. GaliaNugia (2014) LPELR-23234 (CA), per Bdliya, JCA (pp. 18 – 19, paras B – D). See also Fagbenro vs. Arobadi (2006) 7 NWLR (Pt. 978) 172, Akindipe vs. State(2008) LPELR-8325 (CA), Attah &Ors vs. State (2009) LPELR-8802 (CA), per Jega, JCA (pp. 17 – 18, paras B – A).

In this appeal, the Appellant and one other were charged on a three count charge of voluntarily causing grievous hurt, conspiracy and culpable homicide punishable with death. The same set of evidence was adduced by the prosecution against them. The co-accused was discharged and acquitted of all the offences by the trial Court on the ground that the evidence was contrived and only intended to rope him in. This is so notwithstanding the fact the evidence of the surviving victims and other eye witnesses, namely, PW1, PW2 PW3 and PW4 categorically point to the 2nd accused person as the soldier who shot and killed the deceased. The question therefore, is, whether despite these pieces of evidence, and having discharged and acquitted the co-accused of all the charges inclusive of criminal conspiracy and culpable homicide punishable with death, it is logical in fact and law to convict the Appellant for conspiracy and culpable homicide punishable with death? As rightly stated by his Lordship in the lead Judgment, for the Appellant to be found to have acted in concert/or agreement with the 2nd accused to shoot the deceased, the person who actually pulled the trigger must be indicated. In that case the 2nd accused person’s act of shooting the deceased will then be ascribed to the Appellant. I completely endorse the views of his Lordship in the lead Judgment, that by completely exonerating the 2nd accused person and convicting the Appellant for the offences of criminal conspiracy and culpable homicide punishable with death on the same evidence, the trial Judge did nothing but a somersault. This is an appropriate instance in which this Court can interfere because the conviction is perverse and indeed contrary to the evidence before the Court.

Having said that, I further state that I am in complete agreement with his Lordship that the appeal succeeds in part, in that the appeal against conviction for voluntarily causing grievous hurt punishable under Section 248 of the Penal Code lacks merit, and is hereby dismissed; while the Appeal against conviction for conspiracy and culpable homicide punishable with death under Sections 97(1) and 221 of the Penal Code law is allowed.

In consequence, the conviction and sentence for those offences are hereby set aside.

Appearances:

Abdulmutallib Babawuro, Esq., holding the brief of A.A. Alhaji, Esq. For Appellant(s)

M.A. Tijani, Esq., Principal State Counsel, Ministry of Justice, Bornu State. For Respondent(s)