DAHIRU v. THE STATE (2018)

In The Supreme Court of Nigeria

On Friday, the 18th day of May, 2018

SC.468/2014

Before Their Lordships

MUSA DATTIJO MUHAMMAD  Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE  Justice of The Supreme Court of Nigeria
EJEMBI EKO  Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE  Justice of The Supreme Court of Nigeria


Between

HALIRU DAHIRU-Appellant

AND

THE STATE-Respondent

…………………….A…………………….

SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): The Appellant was arraigned and prosecuted at the High Court of Justices of Katsina State, sitting at Katsina in Katsina State Judicial Division for the offence of Culpable Homicide punishable with death contrary to Section 221(b) of the Penal Code, and was convicted and sentenced to death by hanging having been found guilty of causing the death of one Aminu Sani on 29th May, 2004.
The lone head of charge upon which the Appellant was convicted is adumbrated as follows:-
THE CHARGED:
“FIRST HEAD OF CHARGE”

That you Halliru Dahiru of Kofar Yandaka quarters Katsina on or about the 29th day of May, 2004 at the same address, committed the offence of Culpable Homicide punishable with death in that you caused the death of one Aminu Sani by doing an act to wit stabbing him with a knife twice on his back with the knowledge that his death would be the probable consequence of your act; and thereby committed and offence punishable under Section 221 of the Penal Code.” 

In convicting and sentencing the Appellant to death, the trial Court in its judgment held, inter alia as follows:-
“I have no doubt in my mind that the accused person contemplated what he did and that the prosecution has proved the offence charged against the accused person and that the accused person has no defence to the offence charged. Accordingly I hereby convict him of the offence charged with. Since the punishment for the offence is death, I hereby recommend him to the executive Governor of the State for confirmation of the sentence accordingly or otherwise.???

In proof of its case, the prosecution called six witnesses and tendered three Exhibits namely, the confessional statement of the accused/appellant, three knives and one caftan cloth. For his defence, the Appellant testified on his own behalf without calling any witness or tendering any Exhibit.
At the end of the trial the learned trial Judge on 31/3/2004 in his considered Judgment found the Appellant guilty as charged, convicted and sentenced him to death by hanging under Section 221(b) of the Penal Code.
Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court of Appeal vide Notice and Grounds of Appeal dated 10th May, 2004, containing one (1) Ground of Appeal. In its considered Judgment, delivered on the 4th day of June, 2014, the Court of Appeal found the appeal of the Appellant without merit, it accordingly dismissed same, and affirmed the Judgment of the trial Court dated 31/3/2004 – Convicting and Sentencing the Appellant to death by hanging.
It is from this decision of the Court of Appeal, affirming the conviction and sentence of the Appellant for culpable Homicide punishable with death, that this further appeal to this Court has arisen – Learned Counsel for the Appellant filed his Notice of Appeal to this Court on the 24th of June, 2014. From the six (6) Grounds of appeal contained therein, the learned Counsel for the Appellant filed the Appellant’s Brief of Argument on the 24th October, 2014, and formulated the lone issue for determination as follows:-
“Whether the circumstantial evidence in this case was direct, positive, unequivocal, cogent, compelling and irresistibly led to one conclusion that Appellant caused the death of the deceased? (Distilled from grounds 1 & 2.”

On its part, the Respondent in its Brief of Argument filed on the 29/12/2014, adopted the lone issue as proposed by the Appellant for the determination of the appeal.
In arguing the lone issue for the determination of this appeal, Learned counsel for the Appellant submitted that the circumstantial evidence on the basis of which the trial Court convicted the Appellant for the offence of culpable homicide punishable with death, and which conviction was affirmed by the Lower Court was not direct, positive, unequivocal, cogent, compelling and did not irresistibly lead to the conclusion that the Appellant caused the death of the deceased.
Learned counsel argued that there were yawning gaps and differing possibilities in the circumstantial evidence rendering the proof not beyond all reasonable doubt as borne out by the testimony of the only witness at the scene of fight between the Appellant and the deceased.
Learned counsel submitted that the scenario of the fight between the Appellant and the deceased left a possibility that the deceased might have fallen unto his own knife by his own misjudgment or by interference of persons who came to separate them.

…………………….B…………………….

Learned counsel contended that the circumstantial evidence in this case leftroom for reasonable doubt that the Appellant is entitled to acquittal for offence of culpable homicide.
Learned counsel finally urged the Court to resolve this sole issue in favour of the Appellant and allow the appeal.
In reply, learned counsel for the Respondent submitted that the circumstantial evidence adduced by the Respondent at the trial Court on the basis of which the Court convicted the Appellant for the offence of culpable homicide and which conviction was affirmed by the Lower Court was direct, positive, unequivocal, cogent, compelling and irresistibly led to the conclusion that it was the Appellant that caused the death of the deceased.
Learned counsel contended that though non of the witnesses of the Respondent was direct eye witnesses, the circumstantial evidence of PW.1, PW.2 and PW.3 particularly PW.1 irresistibly led to only one conclusion that the death of the deceased was caused by the Appellant.
Learned counsel further submitted that PW.1, PW.2 and PW.3 had informed the trial Court the circumstances in which each witnessed the incident leading to the death of the deceased.
Learned counsel argued that though the law is settled that prosecution must prove its case beyond reasonable doubt. it does not mean proof beyond all doubt. Counsel cited AJAYI VS THE STATE (2013) 9 NWLR PT. 1360 page 589 at pp. 616 paras B-D.
Learned counsel argued that the evidence of DW.1 to the effect that the deceased had a knife with which he struck him, was not corroborated by any witness as non of the witnesses testified that he saw the Appellant pursuing the deceased with a knife.
Finally, learned counsel contended that the circumstantial evidence adduced at the trial Court against the Appellant was direct, positive, unequivocal, cogent and irresistibly led to the conclusion that the Appellant caused the death of the deceased. Counsel submitted further that the concurrent findings of the two Lower Courts were supported by credible evidence and did not result in miscarriage of justice on the Appellant.
Counsel urged the Court to resolve this sole issue against the Appellant and dismissed the appeal.
On the part of this Court, the law is settled that, for the prosecution to secure a conviction for the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code it must establish the following ingredients beyond reasonable doubt:-
“(a) That there was a death of human being.
(b) That death was caused by the act of the accused person; and
(c) That the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act.”
What is deducible from the above ingredients on the duty of the prosecution to establish the guilt of the accused person, must include:-
“(i) That the deceased died;
(ii) That his death was not a natural death;
(iii) That the accused person did something or omitted to do something he had a duty to do by law.
(iv) That the said act or omission resulted in harm to the deceased.
(v) That the deceased died as a result of the said injury or harm.”
The basket is full with authorities established by this Court, on this subject. See:- THE STATE VS COLLINS AIBANGBEE & ANOR (2007) 2 NCC 648 at pages 689 – 690; AYO GABRIEL VS THE STATE (1989) 12 SCNJ 33 at 41; EZEKIEL ADEKUNLE VS THE STATE (1989) 12 SCNJ 184 at 192; GAMBO MUSA VS THE STATE (2009) S.C.N.Q.R. 39; CHUKWU VS THE STATE (2012) 12 SCNJ 208 at 222; OCHIBA VS THE STATE (2011) 12 SCNJ 526 at 537 MBANG VS THE STATE (2012) 6 SCNJ 395.

Saddled with the duty to establish the ingredients of the offence of culpable homicide against the appellant, the prosecution approached the trial Court with its case against the Appellant.
In convicting the Appellant, Learned trial Judge in his judgment as contained in the record stated that:-
I think there is sufficient evidence like the prosecution counsel has said to show that it was the accused person and no one else who could have killed the deceased person Aminu. There are enough circumstantial evidence from the evidence of PW.1, PW.2 and PW.3, DW.1 and Exhibits 1, 2, 3 and 4 to arrive at the said conclusion. I do not think there is any provocation or private defence as the accused person tried to show in his evidence as DW.1.”

…………………….C…………………….

At this juncture, it is pertinent to produce the testimony of PW.1 and 3 which is at page 7 – 8 of the record.
PW.1
It was on Friday, I came out of my house. I heard some boys saying there was a fight, I went to the scene of the fight. 
The people fighting have been separated by the time I arrived. The accused person brought a knife he was having on him to stab the other person he is fighting with. I tried to prevent him from doing so. The other person had already turned his back to us. As I grabbed the accused person from behind him to stop him from stabbing the other person, he struck me with the knife on the right thigh. I felt down and become unconscious. When the accused person brought out the knife he has pursuing the other person he had a fight with. That is all.”
PW.1 was not cross-examined by the defence counsel.
PW.3 also in his testimony testify inter alia as follows:-
“I am a motor vehicle driver. I met the accused person first time on the day of the incidence. On 29/6/2001 I came to pick my vehicle, some people came and asked for assistance to hospital. We picked the man to the hospital together with the accused person. We first went to police station where from we were accompanied by a police man to the hospital. We dropped the accused person at the police station. At the after the injured person was taken for treatment in less than 5 minutes it was reported to us that the injured person had died. I dropped the bodyat his house. That is all.
The totality of the evidence presented in this case leaves this Court with little or no room to arrive at a different conclusion with the trial and Lower Court. This stems from the fact that the duty of Court, is to interpret the statute in accordance with the intention of the law makers. In UGWU VS ARARUME (2007) 12 NWLR (Pt. 1048) 367 at 498 this Court stated thus:-
“A statute, it is always said, is the will of the legislature” and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declares the intention of the legislature.”
In a plethora of decisions of this Court, it has been well settled that proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See NWATURUOCHA VS THE STATE (2011) 6 NWLR (Pt. 1242) 170, (2011) LPELR – 8119 (SC); AKINLOLU VS THE STATE (2015) LPELR – 259886 (SC), MILLER VS MINISTER OF PENSIONS (1947) 2 ER P. 372, BAKER VS THE STATE (1987) 1 NWLR (Pt. 527), OSENI VS THE STATE(2012) 5 NWLR (Pt. 1293) 351, (2012) LPELR – 7833 (SC).
In fact, the expression “beyond reasonable doubt” has been held to be “a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt” See THE STATE VS ONYEUKWU (2004) 14 NWLR (Pt. 813) 340, AKINDIPE VS THE STATE (2012) 16 NWLR (Pt. 1325) 94, (2012) LPELR – 9345 (SC). By a community reading of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 135 of the Evidence Act 2011, the concept entails the establishment of all the ingredients of the offence charged. This Court has also held that the concept of proof beyond reasonable doubt does not mean proof beyond all iota of doubt or proof to the hilt. See NASIRU Vs THE STATE (1999) 2 NWLR (Pt. 589) 87 at 98, AKALEZI VS THE STATE (1993) 2 NWLR (Pt. 273) 1 at 13; AJAYI  VS THE STATE (2013) LPELR – 1994 (SC).
The law is that the Supreme Court will not interfere with concurrent findings of facts made by the trial Court and the Court of Appeal unless such findings are perverse; or are not supported by the evidence; or are reached as a result of a wrong approach to the evidence; or as a result of a wrong application of evidence; or as a result of a wrong application of any principle of substantive law or procedure. See ARABAMBI V. ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (Pt.959) I per Onnoghen, J.S.C. (Pt. 46, C-E). See Also OCHIBA VS STATE2011 12 SC (Pt. IV) p. 79, CAMEROON AIRLINES VS OTUTUIZU 2011 12 SC (Pt. III) P. 200; OLOWU VS NIG. NAVY2011 12 SC (Pt. II) page 1; AROWOLO VS OLOWOOKERE & 2 ORS. 2011 11-12 SC (Pt. II) P. 98.
The above finding also becomes inevitable given the provisions of Sections 222 of the CPC to the effect that:
No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice.”

…………………….D…………………….

Also compelling are the provisions of 288 and 382 of the CPC, which state respectively (repeated for emphasis):
SECTION 288 OF THE CPC
“A Court exercising appellate jurisdiction shall not in exercise of such jurisdiction interfere with the finding or sentence or other order of the Lower Court on the ground that only that evidence has been wrongly admitted or that there has been a technical irregularity in procedure, unless it is satisfied that a failure of justice has been occasioned by such admission or irregularity.”
SECTION 382 OF THE CPC
“Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or reviewed on account of any error, omission or irregularity in the appeal or reviewed on account of any error, omission or irregularity in the complaint, summons, warrant, charge, public summons, order, judgement or other proceedings before or during trial or in any inquiry or other proceedings under the Criminal Procedure Code unless the Appeal Court or reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity.”

From the foregoing, the evidence of the prosecution in this case as to who stabbed the deceased, even though circumstantial evidence, it is direct, cogent positive and compelling evidence.
There is overwhelming evidence from the fact of this case that the Appellant stabbed the deceased with knife. The deceased sustained serious injuries and was taken to the Hospital. The medical report certified that the injuries inflicted on the deceased by the accused are those that caused the death of the deceased.
In the light of all that has been said, the sole issue for determination of this appeal is resolved in favour of the Respondent. The prosecution has proved its case beyond reasonable doubt. The appeal is dismissed, the decision of the Lower Court affirming the sentence and conviction of the Appellant is hereby affirmed by me.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having been obliged a preview of the lead judgment of my learned brother SIDI DAUDA BAGE, JSC just delivered, I entirely agree with the reasoning therein that the appeal lacks merit and that it be dismissed.
I rely on the summary of the facts that brought about the appeal outlined in the lead judgment in stating by way of emphasis why the appeal has failed.
The appellant whose conviction and sentence for culpable homicide under Section 221(b) of the Penal Code by the Katsina State High Court has been affirmed by the Lower Court distilled a lone issue for the determination of his appeal thus:-
“Whether the circumstantial evidence in this case was direct, positive, unequivocal, cogent, compelling and (sic) irresistibly led to one conclusion that the Appellant caused the death of the deceased.”
On the authorities, the guilt of an accused person may be established by any or the combination of the following three means:-

(a) Direct evidence of witnesses,
(b) Circumstantial evidence which is direct and cogent which leaves the Court with no doubt that the accused and no other committed the offence and
(c) Reliance on the confessional statement freely made by the accused.
See Stephen V. State (2013) Vol. 223 LRCN (Pt. 2) 215, Okudo V. State (2011) 3 NWLR (Pt. 1234) 209 at 236 and Bello Okashetu V. The State (2016) LPELR-40611(SC).
In the case at hand, at least two witnesses called by the prosecution, see pages 7-10 of the record of appeal, had testified to seeing the appellant, after having been separated from, pursued and stabbed the deceased. He even stabbed and rendered PWI unconscious in the course of inflicting the mortal injury on the deceased. PW3 testified that the deceased almost immediately died in the hospital from the injury inflicted on him by the appellant. None of these witnesses was cross-examined by the appellant.
The effect of failure to cross-examine a witness upon a particular matter, this Court has repeatedly held, constitutes a tacit acceptance of the truth of the evidence of the witness. See Gaji & Or V. Paye (2003) LPELR-1300 (SC), Oforlete V. State (2000) 12 NWLR (Pt. 681) 415 at 435. And Anthony Okoro V. The State (2012) LPELR-7846 (SC).

The circumstance of the death of the deceased so soon after the appellant had stabbed him, a fact the latter neither challenged nor controverted, is so cogent and compelling that it leaves no reasonable Tribunal in doubt that the appellant and no other caused the death of the deceased. The Lower Court could not have held otherwise.

…………………….E…………………….

See Nasiru V. State (1999) LPELR-1945 (SC) and Osuagwu v. State (2013) LPELR-19823 (SC).
Being an appeal against the concurrent findings of the two Courts below that have drawn from the evidence on record, the appeal must invariably fail. See Omotola & Ors V. State (2009) 2-3 SC 7.
It is for the foregoing and more so the fuller reasons adumbrated in the lead judgment that I also dismiss the appeal.
CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading before now the leading judgment which my Lord, Bage, JSC, just delivered. I endorse the conclusion that this appeal lacks merit and should be dismissed.
Appeal dismissed. I abide by the consequential orders in the leading judgment.
EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered in this appeal by my learned brother, S. D. BAGE, JSC. The reasoning and conclusions therein on the issues canvassed in the appeal are agreeable to me.
I will however put in a few words of mine. This appeal turns on facts which have been ably summarized in the lead judgment.
The Appellant was convicted for culpable homicide punishable with death. The prosecution alleged that he caused the death of one Aminu Sani by stabbing him twice with knife on his back with the knowledge that the death of the said Aminu Sani would be a probable consequence thereby.
Appellant, admitting that he had a fight with the deceased over a piece of cloth, stated that that the fight ensued when the deceased came to meet him at his place of work. He also alleged that the deceased stabbed him several times; that he struggled over the knife with the deceased, and that both of them fell down and were both taken to the Police station. And further that thereafter the deceased was taken to hospital. Apart from stating that the deceased was taken to hospital the Appellant neither mentioned any injury sustained by the deceased that necessitated his being rushed to the hospital nor did he mention any other person the deceased fought with.
The PW.2 testified that the Appellant had earlier shown him the knifes he intended or planned to use against the deceased. Exhibit 1, the Medical Report, establishes the cause of death of Aminu Sani (deceased) to be penetrating stab injuries that caused circulatory failure in the deceased.
The penetrating stab injuries are consistent with knife injuries. In dismissing the Appellant’s plea of provocation or self-defence, the trial Court was quite conscious of the evidence on the record that the Appellant had planned to attack the deceased with knifes. He showed two knifes to the PW.2. The PW.1 testified uncontradicted, that the deceased was withdrawing from the fight, which fact clearly eliminates plea of self-defence or provocation. The PW.1 further testified, and the trial Court found his evidence credible and reliable, that he tried separating the Appellant and the deceased from fighting and while doing so, the Appellant, making sure that the PW.1 did not prevent him from attacking the deceased, stabbed him (the PW.1) on the thigh. The evidence further revealed that the Appellant chased the deceased and stabbed him on his back.
The trial Court found correctly that the Appellant’s attack on the deceased was premeditated and that he had equipped or armed himself for that purpose. I had earlier alluded to the evidence of the PW.2 to the effect that the Appellant planned to attack the deceased with knifes.
He showed the PW.2 the two knifes just as he announced his intent to attack the deceased with the said knifes. The unchallenged evidence of PW.1 at page 7 of the Record reveals inter alia that the Accused, the Appellant herein, brought out the knife he was having on him to stab the deceased. The PW.1:
tried to prevent him from doing so. The (deceased) had already turned his back to (the PW.1 and the Appellant). As (the PW.1) grabbed the (Appellant) from behind him to stop him from stabbing the (deceased) person, he (Appellant) struck me (PW.1) with the knife on my right thigh —– when the (Appellant) brought out the knife he was pursuing the (deceased) person he had the fight with.
No other person saw the Appellant stab the deceased. It was inferred from the evidence of the PW.2 that no other person than the Appellant who fought with the deceased caused the stab wounds on the deceased. The PW.3 conveyed the injured person and the person who “fought him” to the hospital after dropping the Appellant at the Police station. The injured person died about 5 minutes after arriving at the hospital. It is clear from the evidence of the PW.4, a Police Officer, that the person grievously hurt or

…………………….F…………………….

injured was the deceased, who was brought to the Police station with the Appellant. The totality of the evidence of PW.1, PW.2, PW.3 and PW.4 establishes the identity of the injured person as the deceased. The Appellant, testifying as DW.1, confirms that the deceased from the Police Station “was taken to hospital.” From the facts available at trial, the finding of the trial Court “that there are strong circumstantial evidence to show that the (Appellant) had committed the (alleged) offence,” which finding was affirmed by the Court of Appeal, cannot be faulted. The confessional statement of the Appellant, admitted in evidence after trial-within-trial, also strongly supports the finding.
I had earlier alluded to the rejection by the trial Court of the defence of “any provocation or private defence  the accused person tried to show in his defence.” The Court of Appeal affirmed this finding. The evidence available in the printed record, particularly the evidence of PW.1 and PW.2 justify these concurrent findings of fact that there was “no provocation or private defence.”
The Appellant, whose duty it is to show why the concurrent findings of facts by the two Courts below should be interfered with or disturbed, has not satisfactorily discharged that burden. Appellant’s Counsel, not being a witness, had submitted rather conjecturally that –
the scenario of the fight between the Accused Person and the deceased left a possibility that the deceased
might had fell (sic) unto his own knife by his own misjudgment or interference of persons who came to separate them. In a fiasco scene, anything was possible.

This spurious conjecture cannot be, and was not’ sustained by any iota of evidence at the trial Court. It is trite that a counsel cannot use the opportunity of his final address to adduce evidence from the Bar.
The concurrent judgments of the two Courts below enjoy presumption of regularity under Section 168(1) of the Evidence Act. It is also a settled principle of law that the apex Court will not lightly interfere with concurrent findings of fact: OMETA v. NUMA (1934) 11 N.L.R. 18. The Appellant’ seeking to induce this Court to disturb concurrent findings of fact by the trial and intermediate Courts, bears the burden of showing the special circumstances necessitating the apex Court to disturb such concurrent findings of fact. It is on this principle that this Court, in OCHIBA v. THE STATE(2011) 12 S.C. (Pt. 4) 79, stated that it is not difficult for the Supreme Court to flow along with the concurrent findings of fact by the two Courts below.
Finding no substance in this further appeal, I hereby dismiss it in its entirety. Accordingly, I hereby affirm the decision of the Court of Appeal (CA/K/203C/2004) that affirmed the conviction of the Appellant by the trial Court. Appeal dismissed.
There is no appeal against the sentence. However the way the trial Court handled this aspect of its judicial responsibility appears to be a seeming abdication by the said Court of its judicial function to the Executive. The learned trial Judge at page 43 of the Record stated thus, like Pontus Pilate:
Accordingly (sic) hereby convict him of the offence charged with. Since the punishment for the offence is death I hereby recommend him to the Executive Governor of the State for confirmation of the sentence accordingly or otherwise.

PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my Learned brother Sidi Dauda Bage JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. PW1 in his evidence before the trial Court said he witnessed the fight between the Appellant and the deceased and made effort in preventing the Appellant from stabbing the deceased who had turned away from the Appellant. In his extra-judicial statement to the police, the appellant did admit that he stabbed the deceased. The trial Court and the Lower Court believed the evidence of the prosecution witnesses and the confessional statement of the Appellant.
The two Courts below made concurrent finding of facts. It is not in the character of this Court to interfere with such finding in absence of exceptional and/or special circumstance.
I find no such exceptional and/or special circumstance in this appeal. In the circumstance, this appeal shall be and it is hereby dismissed by me as well.

Appearances

Chief G. Tagbo Ike-For Appellant

AND

S. B. Umar (Mrs.) D.P.P. Katsina State with him, M. M. Kassim D.D.P.P. and A. K. Abba,-For Respondent

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