YUNUSA v. KANO STATE
(2022)LCN/16647(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/KN/53B/C/2021
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
SALIHU YUNUSA APPELANT(S)
And
KANO STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON FILING A REPLY BRIEF
By this provision a reply brief can only be filed to deal with new points or preliminary objection or any challenge to the appeal raised and argued in the respondent’s brief. Respondent in her brief of argument never raised, and could not have even conceivably raised, any of these issues/objections in her brief of argument to give appellant the platform to argue and ‘attack’ her brief in the manner he has done in his purported reply brief. In Okonji v. Njokanma (1999) 12 S.C (PT 11)150 AT 159 to 160, Achike JSC had the following to say on when it is permissible to file a reply brief:
“A reply brief affords the appellant an opportunity to deal with new points raised in the respondent’s brief. Care must be taken not to use the filing of reply brief either to extend the scope of the appellant’s brief or to raise new issues that did not arise in the respondent’s brief. The Court cannot permit appellants to unduly extend their earlier contentions in their brief in the guise of Reply brief. To do otherwise is as it were to give the appellant a second bite at the cherry and the last word unwarranted by the Rules of Court.” PER UGO, J.C.A.
WHETHER OR NOT ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL
That is to say it should be regarded as a procedure to be taken, but failure to comply would not be fatal. The appellants’ brief would in the circumstances be considered in resolving this appeal.” (Italics mine)
A few years earlier in Dada v. Dosunmu (2006) 18 NWLR (PT. 1010) 134 AT 156, (2006) LPELR-909 (SC) P. 20, Onnoghen, JSC, Later CJN, had also made the same point when he said that:
“It is very necessary and desirable for the learned counsel for the appellant to always relate or tie the issues formulated for determination in the appellant’s brief to the grounds of appeal from which the said issues are distilled, failure to do so may not necessarily result in the issues being struck out for being incompetent particularly where in the opinion of the Court, the issues can validly be distilled from the grounds of appeal, and in such a situation the Court can on its own take a close look at the grounds of appeal the issues are formulated in order to do substantial justice between the parties which is the preoccupation of the Court, consider the said issues in its judgment in the discharge of its obligation to the parties under the Constitution of the nation. I am a firm believer in the principles of substantial justice at the expense of justice according to technicalities and formality. In certain appropriate cases, the Courts can and in fact do formulate their own issues from the grounds of appeal where the issues formulated by learned counsel for the appellant are found to be either inadequate or grossly or fundamentally defective.” (Italics mine)
See also the cases of Suberu v. Polaris Bank Ltd (2020) 1 NWLR (PT 1728) 79 AT 98 (SC), Diamond Bank Plc v. Opara (2018) 7 NWLR (PT 1617) 92 AT 16-107 (SC) and Yusuf v. Kode (2002) FWLR (PT 86) 464 AT 474 (CA). PER UGO, J.C.A.
THE PRESUMPTION OF LAW THAT A JUDGMENT OF A COURT APPEALED FROM IS DEEMED CORRECT UNTIL PROVEN OTHERWISE
At any rate, there is a presumption of law that the judgment of a Court appealed from is deemed correct and it is the duty of the appellant who alleges its wrongness to displace that presumption. That position of the law also applies to the findings of fact of the lower Court in the judgment appealed from. See Ogbechie v. Onochie (1988) 1 NSCC 237 AT 244, Bamgboye v. Olarewaju(1991) 4 NWLR (PT 184) 132 AT 156 (SC), Awoyoolu v. Aro (2006) 2 SCNJ 44, Ezedu v. Obiagwu(1986) 1 NSCC 427 AT 436 and Ejowhomu v. Etok-Eter Mandilas Ltd (1986) 3 NSCC 1184 AT 1192. PER UGO, J.C.A.
THE ESSENTIAL INGREDIENTS IN PROVING THE CHARGE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH
Now, for the prosecution to secure conviction on a charge of culpable homicide punishable with death under Section 221 of the Penal Code, it must prove (1) that the death of a human being, in this case Nazifi Barau, had taken place; (2) that such death was caused by the accused person; and that (3) that act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as (a) the accused knew or had reason to know that death would be probable and not only likely consequence of his act or; (b) the accused knew or had reason to know that death would be the probable and not only the likely the likely consequence of any bodily injury which the act was intended to cause. See Emmanuel Ochiba v. The State (2011) LPELR-8245(SC). These factors must be established cumulatively and beyond reasonable doubt by the prosecution to secure conviction. In doing that, the Prosecution can rely on the evidence of eyewitnesses to the commission of the crime (as in this case where it relied on the evidence of P.W.1, Salihu Abdu), or on circumstantial evidence which is positive, compelling and points to no other conclusion than that the accused person committed the offence with which he is charged, or on the confession or admission of the crime by the accused person where it is available. See Ilodigwe v. State (2012) 18 NWLR (PT 1331) 1 and Igabele v. State (2006) 6 NWLR (PT. 975) 100. PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Justice of Kano State of 14/1/2021 in Case No K/27c /2016 in which that Court found appellant and his brother/co-accused person, Yunusa Ismail, guilty of culpable homicide punishable with death of one Nazifi Barau. How the said Nazifi Barau died and the part played by appellant and his brother in his death is better taken from the mouth of the prosecution’s first witness, Salihu Abdu (P.W.1), an eyewitness to the crime, as related by him in evidence at the trial.
Mr. Abdu who happens to be a neighbour of both accused persons and the deceased in their common Taure Village, where the homicide took place, had this to say in his short evidence in chief and under cross-examination as captured at pages 10 and 11 of the records of appeal:
“Yes, I know Nazifi Barau [he] is dead now. Yes I know the two accused persons. On 3/2/2014, I was with my machine and I saw the 2nd accused on a tree and tore the banner and the deceased came and challenged him. The 2nd accused pursued the deceased and he stabbed him with knife at the back. While the 1st accused [appellant herein] also came and hit him (deceased) with a stick on his head. It Gora (stick) has a free-wheel on it and the deceased died on the spot.
“So I and ward Head went and reported to the police, and they came and took the deceased (Nazifi) to Rano Hospital, where it was confirmed dead.”
Under cross-examination by counsel to the accused persons, Mr. Ibrahim, who also represents appellants in their two appeals in this Court, PW1 stated thus:
“Yes, I am one of the elders in Taure village. Yes it is true it was political problem. There was no political crisis on that day between PDP and APC. Yes about two days before the incident there was a political crisis. Yes, I am not aware of any misunderstanding between the accused and the other apart from this incident. Yes, the 2nd accused [appellant] was on the tree destroying the banner. Yes, the two accused are supporters of APC. I don’t belong to any now, before I was in PRP.
“I did not pursue them (the 2nd accused and deceased) but I was standing. I am (sic) not alone at the scene; there are (sic) others. I cannot say the number of people around because I was confused. I am not aware of any crisis between PDP and the deceased. The deceased is my neighbor and the accused person. The deceased belong to PDP. The distance between the people and the deceased is just like from this Court to the gate (outing gate) the same distance I was standing with the machine. Yes, the two accused are not hunters. Yes they are not the Yandaba. Yes, the accused are my neighbours but it not necessary to see them every day or even every week.
“Yes, we have two Mosques in the town and I pray every day there. We have about five in the town. The accused don’t carry weapon and go around the town. It was a knife but I cannot say its type. I don’t (sic) see its handle because the 2nd accused ran away with it. I saw the knife.”
The prosecution’s two other witnesses, P.W.2 and P.W.3, were the two policemen who investigated the case at Rano Police Division and later at State C.I.D upon its transfer there.
Police Sergeant Bashir Sani (P.W.2) of Rano Police Division, who investigated the case at Rano when it was reported by P.W.1., said he took the statements of the two accused persons in Hausa language and translated to them, read them over to them and they countersigned.
P.W.2, it should be noted, tendered the said statements as Exhibits A and B respectively in the proceeding without any objection of any sort from appellant and his co-accused person.
P.W.2 said he and his D.P.O. went and picked the body of the deceased at the scene of crime and took it to Rano General Hospital. He added that the case was later transferred to State C.I.D. but that was after he had procured a medical Report of the death of the deceased.
The prosecution’s third and last witness was Danladi Yahaya (P.W.3) of State CID. He said his team leader of the investigation was one Inspector Ibrahim Sani who retired from the Police Force two years prior to his testimony of 21-07-2020. P.W.3 said he personally recorded the statement of appellant’s brother while his said now retired team leader recorded that of appellant in his presence and it was translated to appellant and he agreed with its contents before appellant signed it. Through this witness the stick with iron on its head, which P.W.1 claimed appellant used to hit the deceased on his head, as well as the Medical Report that was procured by P.W.2, both of which P.W.3 said were transferred to State CID, were tendered and admitted in evidence as Exhibits C and D respectively. This witness also tendered the fresh statements of appellant and his co-accused that were obtained by the State CID. The statement of appellant was marked Exhibit E while that of his co-accused was marked Exhibits F1 and F2 for its Hausa and English language translated versions.
The defence opened its case by first calling two witnesses (D.W.1 and DW2) in Isma’il Alhassan and Rabi’u Suleman. Both witnesses asserted that what really led to the death of the deceased was a dispute of sorts between supporters of two political parties – the APC and PDP – over right of each political party to paste campaign posters in the village. The said dispute, according to them, developed into fight in which the supporters of the PDP first descended on appellant who is an APC supporter. They said when appellant’s co-accused brother came to assist him, the PDP people also descended on him and the police were eventually called in and picked them up along with the deceased all of who were by then all lying in a pool of their blood, and took them to the hospital.
Appellant and his brother/co-accused who later testified in their defence in that order gave the same story as their two witnesses, with both of them adding that after their treatment in the hospital they later heard that the deceased had died. Appellant in particular claimed in his defence for the first time that he did not make his statement to the police of his own free will; that the police slapped and forced him to thumb impress it.
In his judgment of 14th January, 2021 after close of evidence and addresses by counsel, the trial Judge, Lawan Wada Mahmoud, J., carefully evaluated the evidence adduced before him, rejected appellant and his brother’s defence along with all the other legal arguments raised by their counsel, Mr. Ibrahim in his final address most if not all of which counsel has also raised in this appeal, found the charge of culpable homicide punishable with death proved beyond reasonable doubt by the prosecution and sentenced the accused persons to death by hanging.
Appellant’s reaction to that judgment is this six-ground appeal where he complained amongst others, but particularly in his sixth ground, that the said judgment of Mahmoud J., was unreasonable, unwarranted and not supported by the evidence adduced before him. He then went on to distill from his six grounds of appeal the following three issues for determination by this Court:
1. Whether the learned trial judge was right when he failed to caution himself on the danger of convicting him on an alleged extra-judicial statement which was vehemently retracted with nothing else outside the confession to prove the offence.
2. Whether in the event of any doubt in criminal trial it is not proper to resolve such conflict in favour of the accused, i.e. the appellant herein.
3. Whether the learned trial judge was right in discountenancing what he, appellant, called the uncontroverted testimonies in his defence on his mere failure to mention the name of the PDP supporters present and his inability to tender medical report despite the admission by even the prosecution witnesses that it was a mob action and the fact of their unconsciousness at that time after which they only woke up to find themselves in the police station and thereafter to the State CID.
Kano State through its Director of Public Prosecutions, Mrs. Aisha Mahmoud, and Mrs. Zakiyya Haruna, Chief State Counsel, took the view that the real issues in contention were:
1. Whether there was doubt in the case of the prosecution which ought to have been resolved in favour of the appellant.
2. Whether there was no evidence outside the retracted confessional statement to prove the offence.
3. Whether there was no proper evaluation of the evidence of the defence.
In arguing appellant’s issue 1, his counsel Mr. Ibrahim cited Muhammad v. State (2018) ALL FWLR (PT 939) 1428 AT 1443 among other cases to submit, correctly, that in a trial for culpable homicide the prosecution must prove beyond reasonable doubt conjunctively that (1) the appellant killed the deceased person, (2) that the death of the deceased was as a result of the voluntary act of the appellant and (3) that the killing was unlawful. While admitting that the third of these elements is not hard to prove, the other two namely, whether it was appellant that killed Nazifi and it was as a result of his voluntary act, remained fundamental in the case and was unproved. He said looking at the entire evidence of both the prosecution and the defence there is nowhere the prosecution successfully linked the death of Nazifi to the direct or indirect acts of appellant and his co-accused who according to counsel were also shown by the evidence of witnesses on both sides to be victims of the same offence. He submitted that of the three prosecution witnesses, P.W 2 and 3 were police officers who did not even visit the scene of the alleged crime throughout their investigation but merely recorded statements from appellant in the comfort of their offices so their evidence is nothing but hearsay.
P.W.1, Mr. Abdu Salihu, who claimed to have witnessed the commission of the offence by appellant and his brother, counsel also labeled a tainted witness. Counsel contended that PW1 under cross-examination contradicted and declared himself an unreliable witness so his testimony cannot in the least fetch conviction. Counsel submitted that besides the fact that P.W.1 corroborated the testimony of appellant as to political crisis involving crowd of people thus amounting to mob action, the only aspect of the crime P.W.1 said he witnessed, according to counsel, is where he said appellant pursued the deceased with a knife and stabbed him at the back. Even this piece of evidence, counsel argued, P.W.1 immediately contradicted himself under cross-examination when he stated that he did not follow appellant and the deceased when they were running; that he was standing in one position with his machine; that he was not alone at the scene and that there were other people whose numbers he could not tell because he was confused. He said when quizzed further the same P.W.1 stated that there was some distance between the people and the deceased, which was as far as the Court room where he was testifying and the ‘exit gate’ of that same Court. To further worsen the prosecution’s case, learned counsel next submitted, P.W.1 admitted that he was confused at the time of the crisis. That, counsel said, raised a lot of dust as to his credibility, because a person who is confused can see black and call it white. It was therefore unsafe for the trial Court to rely on the evidence of P.W.1 to convict appellant who counsel again stressed was also a victim of the actions of the mob.
Mr. Magaji Mato Ibrahim also submitted that the trial judge convicted appellant because P.W.1 knew both the deceased and appellant since they were all his neighbours, but added that the trial judge failed to make the necessary difference between the said previous knowledge P.W.1 of appellant and his identification of appellant as the one from the crowd who committed the crime in issue given his admission that he could not count the persons in the crowd.
In the light of these ‘contradictions and gaps’ in the testimony of P.W.1, Mr. Mato argued, P.W.1’s evidence was not enough to link appellant to the crime in issue or prove his guilt.
On the other hand, learned counsel argued, none of the defence witnesses was contradicted by the prosecution in cross-examination, meaning that the Court was bound to accept their evidence.
On the confessional statements (Exhibits F1 and F2) of appellant that the prosecution tendered, counsel submitted that it was retracted by appellant so the Court ought to have treated them with caution and go outside them to see if there was anything in the evidence that suggests that it is true; whether it is corroborated and the facts stated in them are true as far as they can be tested; whether appellant had the opportunity of committing the offence; whether the confession is possible and the confession consistent with other facts obtained as stated in Eyisi v. State (2018) ALL FWLR (PT 920) 33 AT 59. That evidence, counsel argued, was lacking in this case. He said even though appellant challenged his authorship of the said confessional statement, he was not cross-examined on it not to even talk of being contradicted on it.
Counsel also added that P.W.3 in his evidence said he ‘obtained’ the statement of appellant. The use of the word ‘obtained’ by the P.W.3, counsel contended, is clear indication of the absence of voluntariness. He finally urged us to resolve this issue in favour of appellant.
The State, represented by the Director of Public Prosecutions of Kano State and Mrs. Zakiyya Haruna and Zainab b. Sani, both of the Kano state Ministry of Jusice labeled all these arguments of appellant’s counsel fallacies. While recognizing that the killing of Nazifi Barau was carried out in a tense environment which almost ignited a riot and the whole place was confused, they submitted that P.W.1 was not that confused as to the identity of appellants and his co-accused, particularly as the offence was committed in broad daylight. That is even more so as appellant and his brother were P.W.1’s own neighbours and P.W.1 could even tell the trial Court the part each of them played in the murder, all of which showed that P.W.1 was not in such a state of confusion as not to be able to recollect the event as it unfolded before him and who were responsible for the death of the deceased. Learned State Counsel particularly referred us to the portion of the judgment of the lower Court where it rejected this same argument of P.W.1 being confused and not in a position to give reliable account of the events in issue. As for the appellant’s arguments about his identification by P.W.1, the State argued that identification of an accused only becomes necessary where the witnesses had never known the suspect to figure out his identity or where the encounter was too brief to figure out the identity of the accused, or where it was too dark to decide who the accused was, none of which it submitted was applicable here.
They rejected the description of P.W.1 by Mr. Ibrahim as tainted and pointed out that a tainted witness is one with an interest to serve in the case which they submitted P.W.1 is not.
On appellant’s contention that there was no evidence linking him with the offence, they submitted that the prosecution could prove its case by the evidence of an eyewitness; through confession or admission voluntarily made by the accused and through circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence. In this case, they submitted, the prosecution proved its case by all three means of proof and particularly by the evidence of P.W.1 who gave a vivid account of what unfolded before his very eyes in broad daylight in the village square.
Learned State Counsel also referenced the confessional statement of appellant and submitted that a confession is the best evidence in law and could even be the sole basis for conviction if positive, direct and unequivocal and properly admitted in evidence; that the fact that confessional statement was retracted does not also render it inadmissible. What the Court does in that case, she submitted, is to consider the weight to be attached to such retracted confessional statement by applying the six-way test earlier cited by appellant’s counsel. They urged us to hold that the appellant’s retracted confession was rightly admitted, and added that even if the trial Court had based appellant’s conviction on it, it would have been validly done same having passed all six tests aforesaid, as there was sufficient evidence outside it to prove the charge in the clear eyewitness evidence of PW1, the murder weapon, (Exhibit C), and the medical report (Exhibit D). The contents of the said confessional statement as regards the bio-data of appellant contained in it, can also be tested and was tested and shown in cross-examination, they argued.
They submitted that the duty on the prosecution is not to prove its case beyond all shadow of doubt but to prove it beyond reasonable; that in doing that it does not even need to call a host of witnesses or call all available evidence but only call such evidence as would prove its case beyond reasonable doubt.
Appellant in his largely hypothetical issue 2 relied on his same arguments above of doubts in the prosecution’s case to submit that in those circumstances, the Court was bound to reject the confessional statement and hold that there was reasonable doubt, which should have been resolved in favour of appellant.
The complaint of appellant in his issue 3 is that the trial judge failed to recognize and take into account his ‘strong defence,’ especially when the evidence of his witnesses was not, according to him, even contradicted by the prosecution. That, his counsel argued, amounted to denial of his right to fair hearing, even more so as the reasons given by the judge for not believing his defence, for instance that he did not present medical evidence of the injuries he sustained from the mob action, were untenable.
The learned DPP and her team, in answer to these arguments of appellants, carefully took the Court through the evidence, documentary and otherwise, placed before the trial Court by the prosecution and submitted that it proved its case against him so the learned trial judge was right in his decision finding him guilty as charged.
In a reply filed and deemed filed on 19/1/2022 and adopted and relied on by Mr. Ibrahim for appellant, learned counsel re-emphasized some of appellant’s arguments in his main brief of argument and then raised the following objections:
1. That the State (Respondent) failed to ‘tie up’ or ‘link’ the four issues she formulated in her brief of argument to the various grounds of appeal so she has no issues for determination to the appeal and as such her arguments cannot stand.
2. That there is also nothing to indicate by way of a tick in the same respondent’s brief as to who among the three counsel whose names appear in brief signed it so that additionally made that brief of argument defective as it goes contrary to Rule 10(1-3) of the Rules of Professional Conduct.
3. That the same Respondent’s brief of argument was filed and served more than ten months after service on it of appellant’s brief and without order of Court to file it out of time so it is a nullity.
Counsel submitted that the effect of these defects is, first, that Respondent filed no brief of argument and, secondly, that she is deemed to have admitted all his arguments vide ADC v. BELLO (2017) ALL FWLR (PT 867) 108 AT 128 (SC).
I must pause here to say that this procedure of using a reply brief to raise objections to defects in a Respondent’s brief seems novel to me, particularly as Order 19 Rule 5(1) of the Rules of this Court 2021 dealing with filing of reply brief is quite clear and circumscribes within very narrow confines when a Reply brief can be filed. That order reads thus:
The appellant may, if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve, or caused to be served on the Respondent, a reply brief which shall deal with all new points or preliminary objection or any challenge to the appeal raised and argued in the respondent’s brief. (Italics mine.)
By this provision a reply brief can only be filed to deal with new points or preliminary objection or any challenge to the appeal raised and argued in the respondent’s brief. Respondent in her brief of argument never raised, and could not have even conceivably raised, any of these issues/objections in her brief of argument to give appellant the platform to argue and ‘attack’ her brief in the manner he has done in his purported reply brief. In Okonji v. Njokanma (1999) 12 S.C (PT 11)150 AT 159 to 160, Achike JSC had the following to say on when it is permissible to file a reply brief:
“A reply brief affords the appellant an opportunity to deal with new points raised in the respondent’s brief. Care must be taken not to use the filing of reply brief either to extend the scope of the appellant’s brief or to raise new issues that did not arise in the respondent’s brief. The Court cannot permit appellants to unduly extend their earlier contentions in their brief in the guise of Reply brief. To do otherwise is as it were to give the appellant a second bite at the cherry and the last word unwarranted by the Rules of Court.”
In fact, if appellant had any issue with the validity of the Respondent’s brief of argument, his remedy lies in an application by way of motion on notice for the striking out of the said brief. That motion would need to be supported by an affidavit, to which will be annexed documentary proof of the date of service of appellant’s brief of argument on Respondent; for it is that date that would determine when respondent’s 30 days to respond began to run. Address of Counsel in a brief of argument cannot be substitute for that evidence.
Upon service on her of that affidavit, respondent will then exercise her right to fair hearing and audi alteram partem by filing and serving on appellant a counter-affidavit, if she is so disposed. That right of respondent is now denied her by the unusual procedure adopted by appellant in raising the issue of the lateness of the respondent’s brief only in his eply brief.
In any case, by not only responding to that same ‘defective’ brief with his reply brief but also proceeding to adopt and rely on that same reply brief, which brief incidentally includes appellant’s own response to the merits of the arguments canvassed by Respondent in his said brief, appellant cannot now turn around to object to that same brief. He cannot approbate and reprobate.
Without prejudice to the foregoing, the objections of appellant do not even appear to me to carry any weight. First is his argument that Respondent failed to ‘tie’ or ‘link’ her three issues to the grounds of appeal from which she formulated them so that omission is fatal to the said issues and her entire brief of argument. I am afraid counsel is not correct in that submission, for in as much as it is desirable that parties state clearly in their briefs of argument the grounds of appeal from which the issues formulated by them emanates, failure to so state is not fatal. That much is no longer open to debate. See Adejumo v. Olawaiye (2014) ALL FWLR (PT 743) 1910 AT 1930, (2014) LPELR-22997 (SC) p. 17-18 where this exact argument of appellant was raised as a preliminary objection but rejected by the apex Court (Rhodes-Vivour, JSC, in lead judgment) in these words: “It is desirable practice for counsel to the appellant to state clearly in his brief of argument the grounds from which each issue is formulated. This would be of tremendous assistance to a judge sitting on appeal. It is good practice and should be encouraged. But an appellant’s counsel is not bound, if he chooses, not to. It is one of mere desirability and not essentiality.
That is to say it should be regarded as a procedure to be taken, but failure to comply would not be fatal. The appellants’ brief would in the circumstances be considered in resolving this appeal.” (Italics mine)
A few years earlier in Dada v. Dosunmu (2006) 18 NWLR (PT. 1010) 134 AT 156, (2006) LPELR-909 (SC) P. 20, Onnoghen, JSC, Later CJN, had also made the same point when he said that:
“It is very necessary and desirable for the learned counsel for the appellant to always relate or tie the issues formulated for determination in the appellant’s brief to the grounds of appeal from which the said issues are distilled, failure to do so may not necessarily result in the issues being struck out for being incompetent particularly where in the opinion of the Court, the issues can validly be distilled from the grounds of appeal, and in such a situation the Court can on its own take a close look at the grounds of appeal the issues are formulated in order to do substantial justice between the parties which is the preoccupation of the Court, consider the said issues in its judgment in the discharge of its obligation to the parties under the Constitution of the nation. I am a firm believer in the principles of substantial justice at the expense of justice according to technicalities and formality. In certain appropriate cases, the Courts can and in fact do formulate their own issues from the grounds of appeal where the issues formulated by learned counsel for the appellant are found to be either inadequate or grossly or fundamentally defective.” (Italics mine)
See also the cases of Suberu v. Polaris Bank Ltd (2020) 1 NWLR (PT 1728) 79 AT 98 (SC), Diamond Bank Plc v. Opara (2018) 7 NWLR (PT 1617) 92 AT 16-107 (SC) and Yusuf v. Kode (2002) FWLR (PT 86) 464 AT 474 (CA).
The other arguments/objections of appellant that the Respondent’s brief of argument was not ticked by the particular counsel that signed it and that the said brief was in any case filed out of time by respondent and without the order of this Court extending time for her to do so, can be conveniently taken together. First, as said earlier, appellant seems to lose sight of the fact that by responding to the said Respondent’s brief with his reply brief, instead of bringing a motion on notice to strike it out on those grounds, he is deemed to have acquiesced in and waived the said defects in the Respondent’s brief and therefore cannot be heard to argue against it. That conduct of his in the first place distinguishes his case from the cases his counsel cited in support of his argument. See N.B.A. v. Fawehinmi (1986) 2 QLRN 190 AT 205 where it was said that:
“Waiver is the abandonment of a right, and thus a defence against its subsequent enforcement; it may be express, or where there is knowledge of the right, may be implied from the conduct which is inconsistent with the continuance of the right.”
Much more recently, it was again said by the apex Court in Suberu v. Polaris Bank Ltd (2020) 1 NWLR (PT 1728) 79 AT 133 (SC), following its earlier decision in Noibi v. Fikolati (1987) 1 LPELR-2064), that:
“A party cannot take advantage of an irregularity which he has acquiesced to.”
But even more specifically on his argument of Respondent’s failure to abide by the time set by the Rules of this Court in filing her brief of argument is that, it has been said by high authority that the times set by the Rules of Court for the filing and exchange of processes inter partes during proceedings is for the convenience of parties and the Court so any failure in that direction is mere irregularity, which parties can waive and once so waived by the party affected, it cannot be objected to again. That was made clear in Atanda v. Ajani (1989) 3 NWLR (PT 111) 511 AT 545-546 (SC) by Nnaemaeka-Agu, J.S.C. thus:
“It appears to me that all our rules of procedure can be classified into two. Some are purely technical in that they prescribe certain procedures to be taken, mainly for the convenience of parties and the Court. But others go to ensure that justice is done to the parties. If a rule prescribes that a defendant shall file his statement of defence within, say 14 days of service of the statement of claim, that rule as to time is for the convenience of the parties. The time fixed can be extended on application or waived by the other party. Failure to file a pleading on time is an irregularity. See Dike Nwora v. U.B.A. Ltd (1978) 2 L.R.N. 149. The rule is purely technical and belongs to the first category. It can be waived.” (Italics mine)
See further the cases of Ndika v. Chiejina (2002) FWLR (PT 117) 1178 AT 1196 -1198 (where UBA v. Dike Nwora (1978) 11 NSCC 519 cited in Ajani v. Atanda supra was cited and followed on the same point) and S.P.D.C.N. v. Egweaja (2016) 10 NWLR (PT 1519) 1 AT 10-11 which related to a brief of argument filed out of time.
At any rate, there is a presumption of law that the judgment of a Court appealed from is deemed correct and it is the duty of the appellant who alleges its wrongness to displace that presumption. That position of the law also applies to the findings of fact of the lower Court in the judgment appealed from. See Ogbechie v. Onochie (1988) 1 NSCC 237 AT 244, Bamgboye v. Olarewaju(1991) 4 NWLR (PT 184) 132 AT 156 (SC), Awoyoolu v. Aro (2006) 2 SCNJ 44, Ezedu v. Obiagwu(1986) 1 NSCC 427 AT 436 and Ejowhomu v. Etok-Eter Mandilas Ltd (1986) 3 NSCC 1184 AT 1192. It is therefore appellant’s unwavering duty, regardless of any absence of arguments from the respondent or even any defect in his brief of argument against the appeal, to displace that presumption. The criminal justice system does not work in the make-believe manner suggested by appellant’s counsel of allowing appeals simply because there was no response by way of respondent’s brief or that a respondent’s brief filed was found defective. Every judgment is presumed correct until set aside so it is the appellant’s burden to displace that presumption on the strength of his own arguments. Appellant’s focus should therefore be towards persuading this Court that the State did not actually prove beyond reasonable doubt its case of culpable homicide punishable with death against him so the trial judge was wrong in convicting him. In fact, aside scoring mere debating points, which course should not be encouraged in Court proceeding. Arguments of this type of invalidity a brief of argument filed in an appeal are only potent when made by the Respondent, for in that case the argument, if successful, would result in the striking of the appeal since there will be no brief of argument to support it. In the hands of the appellant, such an argument is impotent given the legal presumption of correctness of the decision appealed from.
Merits of the Appeal
That takes me to the merits of appellant’s arguments in the appeal. On that, it appears to me that the crux of his complaints is that the prosecution did not successfully link him to the crime in issue. That much is encapsulated in paragraphs 4.30 – 4.31 of his brief of argument where he argued as follows:
“For the offence under trial, three (3) basic elements are provable i.e.:
(1) That the accused killed the deceased.
(2) That the death of the deceased was a result of the voluntary act of the accused; and
(3) That the killing was unlawful.
While it is obvious that the 3rd element is not hard to prove, the 1st and 2nd elements remain fundamental. Looking at all the entire evidence of both the prosecution and defence there is nowhere the prosecution was seen to have successfully linked the death of the deceased to the direct or indirect acts of the appellant who were also shown to in an unchallenged evidence of DW1-DW4 as well as PW1-PW3 under cross-examination to be victims of the same offence.”
He repeated the same argument in paragraphs 4.75 and 4.76 of the same brief, saying:
“…what is before my Lords is not just whether the death of a human being has occurred but whether it was the act of the appellant that led to the death.
“We further submit that the prosecution has failed woefully to show that it was the act of the appellant that led to the death of Nziifi Barau.”
In the light of that and in exercise of the powers in this Court to reformulate issues to identify the real issue(s) in controversy between parties (see Dada v. Dosunmu (2006) 18 NWLR (PT 1010) 134 AT 156, (2006) LPELR-909 (SC) P.20, Okonkwo v. Ezeaku (2020)1 SCNJ 234 AT 266 & 269, Nwankwo v. The State (2017) LPELR-42756(CA) p.8) and also to reduce proliferation of issues, I hereby condense the issues of both parties and recast a single issue for determination of this appeal as follows:
Whether the prosecution proved beyond reasonable doubt at the trial Court that it was appellant’s act that caused the death of the deceased and the trial judge correct in his decision convicting appellant for culpable homicide punishable with death.
Now, for the prosecution to secure conviction on a charge of culpable homicide punishable with death under Section 221 of the Penal Code, it must prove (1) that the death of a human being, in this case Nazifi Barau, had taken place; (2) that such death was caused by the accused person; and that (3) that act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as (a) the accused knew or had reason to know that death would be probable and not only likely consequence of his act or; (b) the accused knew or had reason to know that death would be the probable and not only the likely the likely consequence of any bodily injury which the act was intended to cause. See Emmanuel Ochiba v. The State (2011) LPELR-8245(SC). These factors must be established cumulatively and beyond reasonable doubt by the prosecution to secure conviction. In doing that, the Prosecution can rely on the evidence of eyewitnesses to the commission of the crime (as in this case where it relied on the evidence of P.W.1, Salihu Abdu), or on circumstantial evidence which is positive, compelling and points to no other conclusion than that the accused person committed the offence with which he is charged, or on the confession or admission of the crime by the accused person where it is available. See Ilodigwe v. State (2012) 18 NWLR (PT 1331) 1 and Igabele v. State (2006) 6 NWLR (PT. 975) 100.
Here, there is no dispute about the fact that Nazifi Barau is dead. That much the lower Court also found when it said that “it is not in dispute from the prosecution and the defence evidence that one Nazifi Barau died and this fact was corroborated by the Exhibit D i.e. the Medical Report.” There is no appeal against that finding. The only issue in dispute is whether appellant was responsible for the said Nazifi Barau’s death. To prove appellant’s culpability the prosecution relied on eyewitness evidence and the confessional statements of the appellant. The eyewitness, as already shown, is Salihu Abdu, P.W.1 whose evidence has already been reproduced. Appellant never suggested in cross-examination, and has not said so even in this appeal, that P.W.1 was a PDP man or had any other reason to testify falsely against him.
Mr. Abdu introduced himself as coming from the same Taure village as appellant and his brother and the deceased Nazifi Barau. He swore that they are all his neigbhours. Neither appellant nor his brother challenged him on that so it is not open to argument that he, P.W.1, knew appellant and his co-accused person very well before the incident in question. That also means that the chances of his wrongly identifying them, which Mr. Magaji Mato Ibrahim tried to make quite an issue of, would not arise or are remote. That is even more as it not in dispute that the homicide took place in broad daylight. It is settled law that that in such circumstances, particularly where the witnesses knew the suspect before the incident in issue, issues of wrongful identification and the need for identification parade do not arise. See Bozin v. State (1986) 1 QLRN 68 AT 76 (SC), Jiya v. The State (2020) 13 NWLR (PT 1730) 159 AT 203 (SC) and Shola v. State (2020) 8 NWLR (PT 1727) 530 AT 547 (SC).
As shown earlier, Mr. Ibrahim for appellant argued in paragraph 4.31 of appellant’s brief of argument that “Looking at the entire evidence of both the prosecution and defence, there is no where the prosecution was seen to have successfully linked the death of the deceased to the direct or indirect acts of the appellant who were also shown in an unchallenged evidence of DW1-DW4 as well as PW1-PW3 under cross-examination to be victims of the same offence.” One wonders whether learned counsel who also defended appellant in the trial High Court had different records from the one before this Court. For he cannot be saying that from the records of appeal before us which show where P.W.1 testified that:
“Yes, I know Nafizi Barau [he] is dead now. Yes I know the two accused persons. On 3/2/2014, I was with my machine and I saw the 2nd accused on a tree and tore the banner and the deceased came and challenged him. The 2nd accused pursued the deceased and he stabbed him with knife at the back. While the 1st accused also came and hit him (deceased) with a stick on his head. It Gora (stick) has a free-wheel on it and the deceased died on the spot.”
Appellant is the first accused referred to above by P.W.1.
In another desperate bid to throw dust on the credibility of P.W.1, appellant’s counsel relied on P.W1’s evidence under cross-examination where he said “I cannot say the number of people around [when the attack on the deceased that led to his death was going on] because I was confused.” Counsel argued that P.W.1 having admitted that he was confused, it was not safe to rely on his evidence since a confused person could call black white and white black. Incidentally, Mr. Magaji Ibrahim made this same argument before the trial judge who saw P.W.1 testify before him and so was in a position to tell if he could not be believed on the evidence, but the learned trial judge rejected that contention this way:
“The defence in their address raised the issue that PW1 was confused as such his evidence is unreliable but it is on record the witness testified that he know (sic) both the deceased and the two defendants as his neighbours and was able to identified (sic) the 2nd defendant as the one that stabbed the accused at the back with a knife and when cross-examination (sic) he said he saw the knife which the 2nd defendant ran away with it. He also identified the 1st defendant as the one who hit the deceased with a stick which has freewheel on it and the stick was tendered as Exhibit C. Also statement of the 1st defendant, Exhibit A and F corroborated the fact that the 1st defendant hit the deceased with a stick on the head and Exhibit D Medical Report confirmed the injury on the head of the deceased, all of this fact makes me to disagree with the defence submission that pw1 was confused so his evidence so his evidence is reliable.”
Appellant has not given me any reason to fault this well-considered reasoning of the trial judge. At any rate, as Oputa, J.S.C., pointed out when similar argument was made before the apex Court in State v. Aibangbee & Anor (1988) LPELR-3208 (SC) AT p.64:
“People see with their eyes and not with their mind.”
And by the way, which sane person witnessing the brutal way the life of the deceased was cut short so summarily by appellant and his brother on account only of a dispute over right to paste campaign posters in a village square would not be perplexed, disconcerted, shell-shocked and befuddled (all of them synonyms of confuse)? The word ‘confused’, in the circumstances P.W.1 used it, should be put in proper context, and if that is done, it would be seen that P.W.1 never suggested that he was so confused that he could not even see how the gory events of that day unfolded before his very eyes and an healthy man was killed in a matter of within minutes.
I further note that appellant in his statement to the police (Exhibit F) corroborated the evidence of P.W.1 and identified himself as one of the culprits in that dastardly act when he said there that:
“…. and I chased him (Nazifi Barau) and hit him with a wooden rod and he fell down.”
He, appellant, then went to add what next happened thus:
“After that I returned home. Thereafter Nazifi’s relatives rallied and came to my house. They wanted to burn our house so we ran away to the police station in Kano. From there the corpse of Nazifi was brought. He had died.”
The wooden rod with freewheel that appellant used to hit the deceased was also tendered without objection as Exhibit C.
There is also the certified true copy of the Medical Report, Exhibit D, in respect of the deceased. There it is stated that “the primary cause of death is from head injury with haemorrhage from trauma,” thus further corroborating the confessional statement.
The other argument of appellant that there was no evidence that P.W.1 chased after him and his brother when they pursued the deceased to kill him is also of no avail.
That is so since appellant’s counsel Mr. Magaji Ibrahim never put to P.W.1 during cross-examination that the two accused persons chased the deceased so far away that P.W1 could not have seen them stab and hit him to death from where he was standing. It was the defence’s duty, if it did not agree with his identification evidence, to directly challenge his said evidence during cross-examination to bring out the possibility of wrong identification by him of his co-villagers killing a fellow villager in his very presence in broad daylight. See again State v. Aibangbee & Anor (1988) LPELR-3208 (SC).
At any rate, the issue of whether an accused person is properly identified is a question of fact to be determined by the trial Court on the evidence adduced for that purpose. See Ukpabi v. The State (2004) 11 NWLR (PT 884) 439 and Nwankwo v. The State (2017) LPELR-42756 (CA) p.24. I am in no doubt that on the evidence before him the trial judge reached the right finding on the identity of appellant as one of the killers of the deceased and with the necessary intent.
In the light of all the foregoing, it cannot be seriously said that a case of culpable homicide punishable with death was not made out by the prosecution against appellant or that the trial judge did not properly evaluate the evidence in support of it or even that there was nothing to corroborate the confession of appellant. If anything at all, the actions of appellant and his brother on the 3rd day of February, 2014 in Taure village and their arguments in this appeal simply go to confirm the thinking of the average Nigerian politician and their foot soldiers that no consequences attach to crimes committed in the course of politics disputes.
In summary, I hereby resolve against appellant, the sole issue I formulated; dismiss this appeal and uphold the decision of the trial High Court of Kano State convicting appellant of the crime of culpable homicide punishable with death.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment, just delivered of my learned brother, B.M. Ugo, JCA and I agree completely with his succinct reasoning and conclusion that the appeal lacks merit and should be dismissed.
The clear and strong eye witness account by PW1, about the way the life of the deceased was cut short, left no doubt that Appellant was one of those that caused his death, and this was corroborated by the confessional statement of Appellant, which was admitted, without objection, showing the attack on the deceased, following some dispute over hoisting of political party’s banner or poster.
By law, confessional statement remains the best evidence and when the same is supported by eye witness account, Appellant truly has herculean task, faulting it. See the case of Akwuobi Vs The State (2016) LPELR-41389 (SC); Ofordike Vs The State (2019) LPELR-46411 (SC) and Salahudeen Vs The State (2013) LPELR-21851 (CA).
See also Uhara Vs The State (2021) LPELR-5512 (CA), where we held:
We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.”
It is very sad that quarrel by supporters of political parties has resulted in such fatalities, whereas the chieftains of the parties and candidates, may be or remain chummy pals!
I too dismiss the appeal.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.
Appearances:
Mrs. Zakiyya Haruna, Chief State Counsel, with her, Mrs. Zainab B. Sani, Principal State Counsel) all of the Kano State Ministry of Justice For Appellant(s)
Magaji Mato Ibrahim, Esq, with him, Fengak Gokir, Esq. For Respondent(s)
