ESSEYIN v. THE STATE (2018)

In The Supreme Court of Nigeria

On Friday, the 18th day of May, 2018

SC.371/2017

Before Their Lordships

MUSA DATTIJO MUHAMMADJustice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN  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


Between

OJO ESSEYIN Appellant

AND

THE STATE-Respondent

…………………….A…………………….

PAUL ADAMU GALINJE, J.S.C. (Delivering the Leading Judgment): The Appellant herein was arraigned before the High Court of Kogi State, holden at Lokoja, on a two counts charge of rape and culpable homicide punishable with death under Sections 283 and 221 (a) of the Penal Code respectively.
In order to prove its case, the prosecution called four witnesses and tendered in evidence the following items:-
1. Pictures taken at the scene of crime
2. Negatives of the Pictures
3. Coroner Form including medical report
4. Cautionary statement of the Appellant
These items were admitted in evidence and marked Exhibits A,B,C and D respectively.

At the end of the trial and in a reserved and considered judgment delivered on the 19th December, 2013; the appellant was acquitted and discharged from the first count of rape, but was found guilty in respect of the second count of culpable homicide punishable with death under Section 221(a) of the Penal Code and he was accordingly convicted and sentenced to death by hanging. Appellant’s appeal against the conviction and sentence to the Court of Appeal was dismissed on the 24th of April, 2015. The instant appeal is against the decision of the Court of Appeal, Abuja Division.
The Appellant’s notice of appeal at pages 99 to 108 of the record of this appeal dated 21st May, 2015 and filed on the 22nd May, 2015; contains five grounds of appeal.
Parties filed and exchanged briefs of argument. Mr. J. O Adele, learned counsel for the Appellant formulated five issues for determination of this appeal as follows:-
a. Whether the learned Justices of the Court of Appeal Abuja were legally right when they upheld the findings of the trial High Court of justice, Kabba, Kogi State that the ingredients of the charge/offence of culpable homicide punishable with death was proved by the respondent against the Appellant even when the Respondent did not establish the ingredients of the charge or offence of culpable homicide punishable with death under Section 221 (1) (a) of the Penal Code as required by law.
b. Whether the learned Justices of the Court of Appeal Abuja were legally right when they upheld the finding of the trial High Court of Justice, Kabba, Kogi State which found the Appellant guilty of the charge of 
Culpable Homicide punishable with death because the Appellant did not give evidence for his defence but rather rested his case on the evidence of the Prosecution/Respondent.
c. Whether the learned Justices of the Court of Appeal Abuja were legally right when they upheld the findings of the trial High Court of Justice, Kabba, Kogi State that the prosecution/Respondent had by circumstantial evidence proved the case of Culpable Homicide punishable with death against the Appellant.
d. Whether the learned Justices of the Court of Appeal Abuja were right when they upheld the findings of the trial High Court of Justice, Kabba, Kogi State which relied upon Exhibit D (the alleged confessional statement) of the Appellant to convict and sentence the Appellant for the charge of culpable homicide punishable with death after a discharge acquittal of the Appellant for the charge of rape even when the content of the said Exhibit D is a mere narration of the incident which culminated to the charge of Rape and Culpable homicide punishable with death.
e. Whether the learned Justices of the Court of Appeal, Abuja were legally right when they relied on 
the doctrine of “Last seen” to hold that the deceased was last seen with the Appellant for which the Appellant was actually the one responsible for the death of the deceased.
Mr. A. O. Suleiman, Deputy Director in the Ministry of Justice, Kogi State, settled the Respondent’s brief of argument. Learned counsel formulated three issues for determination of this appeal, and they read as follows:-
1. Whether the Appellant has proved his case beyond reasonable doubt to warrant this honourable Court to discharge and acquit the Appellant from the conviction and sentence of the Appellant to death by hanging meted to the Appellant by the High Court of Justice, Kabba, Kogi State which said conviction and sentence to death by hanging was upheld by the Court of Appeal, Abuja.
2. Whether the Court of Appeal, Abuja was legally right to have upheld the respondent establishment of circumstantial evidence by upholding the final verdict/judgment of the trial Court, Kabba, Kogi State.
3. Whether the Court of Appeal, Abuja was legally right when it upheld the final decision of the trial High Court, Kabba, Kogi State that the Respondent had established all the ingredients of the charge 
of culpable homicide punishable with death as required by Law.

…………………….B…………………….

I have read through the record of this appeal and the briefs of Argument filed by both parties and I am of the firm view that the only issue calling for determination of this appeal is whether the lower Court was right in affirming the decision of the trial Court on the ground that the prosecution did prove its case beyond reasonable doubt.
Before I venture into the argument of learned counsel on both sides, it is pertinent to set out in brief the facts of this case as disclosed from the evidence before the trial Court. The Appellant, a casual worker was employed by Joseph Akadi, a resident of Kajola Area of Kabba in Kogi State to fill the foundation of his uncompleted building. Joseph Akadi testified as PW4 at the trial Court. On the 21st of November, 2011, at about 9.30am, while working at the site, the appellant saw three Fulani girls who were carrying fresh cow milk for sale, and he called one of them whose name is Sefiyat under the pretext that he wanted to buy some cow milk she was carrying. She went to meet the Appellant while the remaining two girls went ahead to the venue where they used to sell fresh cow milk to buyers. They waited for Sefiyat for several hours, but she did not join them. They now reported to the leader of the Fulani at Zango that Sefiyat was missing, The Fulani leader Alhaji Mohammed Musa went along with the two girls Hadiza Lawal and Awawu lbrahim and reported the disappearance of Sefiyat to the police at about 2.00pm. A team of policemen accompanied them to the place where they left Sefiyat. A search conducted in the area led them to a grave. After the necessary formalities the body of Sefiyat was exhumed from the shallow grave. According to the prosecution, an investigation that was conducted subsequently showed that the Appellant raped Sefiyat, a girl of 17 years after which he killed her.
As I have stated elsewhere in this judgment, the High Court absolved the Appellant from the charge of rape.
In arguing the appeal, learned counsel for the Appellant submitted that the lower Court was wrong to have held that the ingredients of the offence of culpable homicide punishable with death had been proved even when the Appellant was discharged and acquitted from the charge of rape, which was said to have caused the death of the deceased, on whether the lower Court was right when it held that the prosecution did prove its case by circumstantial evidence, learned counsel for the appellant contended that the lower Court was wrong in that direction because the circumstantial evidence upon which the trial Court relied, related to the charge of rape under Section 283 of the Penal Code, an offence which was not proved by the prosecution. It is the learned counsel’s submission that the circumstantial evidence in this case did not in law point irresistibly that the Appellant intended to cause death of the deceased by the alleged act of having carnal knowledge of the deceased.
On whether Exhibit D, the extra-judicial statement of the Appellant is a confessional statement, learned counsel submitted that it is not a confessional statement, but a clear explanation of what happened between him and the deceased, where the appellant admitted that the deceased first attacked him and how he had to defend himself.
On the doctrine of last Seen’, learned counsel for the appellant submitted that the lower Court was wrong when it held that because the deceased was last seen with the Appellant, the appellant was responsible for her death.
Finally, learned counsel submitted that the evidence of last Seen was not corroborated, as such the lower Court was wrong in upholding the conviction of the Appellant. In aid, learned counsel cited Madu vs The State (2012) 15 NWLR (Pt. 1324) 405 at 419; The State vs Kura (1975) 2 SC 8; Eme Orji vs The State (2008) MJSC 169 and Uwaekweghinya vs The State (2005) ALL FWLR (Pt.259) 1930 to buttress his submission.
I very much deprecate the attitude of learned state counsel. A. O Suleiman, who as prosecutor in this case at the trial Court, cited displayed great incompetence in handling his brief. The confessional statement of the Appellant exhibited at pages 9 – 9A of the record of this appeal was not tendered in evidence before the trial Court. In this statement, recorded by Inspector S lbrahim, the Appellant admitted both the offences of rape and culpable homicide. The failure to bring this evidence before the Court by the prosecuting counsel was either a deliberate act of hiding evidence or gross incompetence on the part of the state counsel who

…………………….C…………………….

should have not been given such responsibility in the first place. Be that as it may Exhibit D, the statement of the Appellant to the police in Kabba is not a confessional statement, as the appellant totally denied any connection with the deceased. The Appellant’s conviction at the trial Court was not based on any confessional statement, or on any evidence connected with the rape of the deceased.
Learned counsel for the Appellant does not seem to know the contents of Exhibit D and that is why he argued in his brief of argument that the appellant merely narrated what happened between him and the deceased.
The trial Court in its judgment relied on circumstantial evidence in arriving at the decision that the Appellant was guilty of culpable homicide This is what the Court said at pages 37 of the record thus:-
Even though from the incidence (sic, evidence) adduced by the prosecution, there is no direct prove (sic, proof) that the accused person caused the death of the deceased, circumstantial evidence has pinned the accused to the commission of the crime of culpable homicide punishable with death against the deceased.”
The lower Court after setting out the definition of circumstantial evidence as enunciated in Mohammed vs The State (2007) 37 WRN 1 at 25, agreed with the trial Court in the following words at page 92 of the Printed record thus:-
…….and the circumstantial evidence presented was direct, to the effect that Appellant killed the deceased, who was last seen with him along and (sic, was) found dead in his place of work in a shallow grave. The Appellant’s discharge and acquittal for the offence of rape took nothing away from the charge or culpable homicide punishable with death, for which the appellant was eventually rightfully found guilty, and convicted.
Clearly the conviction of the appellant had nothing to do with the charge for rape wherewith the appellant was acquitted and discharged. The only issue left for this Court to determine is whether the Court was right when it affirmed the decision of the trial Court that the prosecution did prove by circumstantial evidence that the Appellant intentionally killed the deceased. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act 2011 have squarely placed the burden of proof in criminal cases on the prosecution, who must prove beyond reasonable doubt the guilt of the accused person and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused Person.
This burden does not shift. See Alabi vs The State (1993) 7 NWLR (Pt. 307) 511 at 531 paras A-C; Solola vs The State (2005) 5 SC (Pt. 1) 135 (2005) 11 NWLR (Pt. 939) 460; Akeem vs The State (2017) 18 NWLR (Pt. 1597) 311 at 350 paras D-E. In discharging this burden, the prosecution must establish the ingredients of the offence with which the accused is charged. This it can do by direct evidence or circumstantial evidence or confessional statement. The Appellant was charged,tried and convicted for culpable homicide punishable with death. Both the Appellant and the Respondent agreed that Sefiyat Umoru died on 21st November. 2011. The death of Sefiyat Umoru was confirmed by Exhibits A, B and C. PW3 identified the Appellant as the person who called the deceased to buy fresh cow milk from her. PW4 who employed the Appellant to fill the foundation of his house, gave evidence that he left the Appellant working at his site at about 9.00a.m on the 21st November, 2011 and few minutes later, the deceased went to sell fresh cow milk to the appellant when she disappeared. At 4.00p.m the same day, the corpse of the deceased was exhumed from the same premises where the Appellant was working. Clearly from the evidence available, the trial Court and the lower Court were right when they held that the prosecution has circumstantially proved that the death of the deceased was caused by the Appellant.
Circumstantial evidence is a testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved. The fact that the Appellant called the deceased and the corpse of the deceased was found at the premises of his work, shows irresistibly that he and no other person caused the death of the deceased.
The Appellant did not call evidence to rebut the accusation by the prosecution. He therefore took the risk which ultimately has not assisted him. The trial Court found the Appellant guilty of the offence of culpable homicide punishable with death.

…………………….D…………………….

This decision was affirmed by the lower Court. This is clearly a concurrent finding of facts by the two lower Courts which this Court can only upset if there is an exceptional or special circumstance to do so. Such exceptional circumstance is not available in this case.
The sole issue identified by me is resolved against the appellant. This appeal shall be and it is hereby dismissed for lacking in merit. The decision of the trial Court which was affirmed by the lower Court, is further affirmed by me.
Appeal dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment of my learned brother PAUL ADAMU GALINJE JSC just delivered, I agree with the reasoning and conclusion therein that the appeal which lacks merit be dismissed.
I adopt the summary of the facts that brought about the appeal outlined in the lead judgment in restating the principles which govern the main issue the appeal agitates.
Learned appellant’s counsel argues that the lower Court is wrong in its affirmation of the trial Court’s perverse judgment convicting the appellant purely on circumstantial evidence. He contends that the evidence on record is incapable of sustaining the conviction.
The death of Sefiyat Umaru, for whose death the appellant is convicted, given exhibits A, B and C ceases to be in dispute. Evidence abound from the testimony of PW3 and PW4 that the appellant was in the company of the deceased whom he had called to buy milk from in the morning hours of the fateful day.
The deceased was last seen in company of the appellant and her body exhumed in the evening from the very premises the appellant invited her to.
In my firm and considered view, the narrow issue the appeal raises is as to the doctrine of the last seen. The concept is, by itself, circumstantial evidence being, in the case at hand unrebutted presumption that points irresistibly at the appellant and no other person.
The law, it must be restated, presumes the appellant, who was last seen with the deceased, responsible for the latter’s death. The appellant, in such a circumstance, has the duty of exculpating himself otherwise the trial Court will be justified to infer that he killed the deceased. See lgho V. The State (1978) 3 SC 87, Gabriel V. The State (1989) 12 SCNJ 47 and Rabi Ismail V. The State (2011) MJSC 28.
In the case at hand, the time gap between the point in time the appellant was last seen together with the deceased alive and the time the deceased was found dead rules out the possibility of any person other than the appellant as being responsible for the death of Sefiyat. The lower Court is correct in its conclusion that, in the circumstances, the trial Court is right to have relied on the doctrine of the last seen to infer the guilt of the appellant. See Sabina Chikaodi V The State (2012) LPELR-7867 (SC) and Tajudeen Iliyasu V. The State(2015) LPELR-24403 (SC).
It is for the foregoing and the fuller reasons given in the lead judgment that I adjudge this appeal unmeritorious and dismiss it and further affirm the conviction and sentence of the appellant under Section 22(a) of the Penal Code.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the privilege of reading in draft the judgment of my learned brother, Paul Adamu Galinje, JSC just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed.
The appellant was charged before the High Court of Kogi State sitting at Kabba with two counts of rape and culpable homicide punishable with death, punishable under Sections 283 and 221 (a) of the Penal Coderespectively. The appellant pleaded not guilty to the charges. It was the prosecution’s case that on 21/11/2011, the appellant invited the deceased, Sefiyat Umoru, into the uncompleted building where he was working under the pretext of buying some of the cow milk (known as nunu) which she was hawking and allegedly proceeded to rape, beat and kill her. Her corpse was discovered in a cassava farm a short distance from the uncompleted building. On the day in question she was in the company of two other girls who were also hawking cow milk. When the appellant beckoned on the deceased, the other two ladies continued with their journey to Kabba. In the course of the investigation, they identified the appellant as the person who lured the deceased into the uncompleted building. She was not seen alive thereafter.
The prosecution called four witnesses in proof of its case while the appellant elected to rest on the prosecution’s case

…………………….E…………………….

and called no evidence in his defence. At the conclusion of the trial, the appellant was acquitted and discharged in respect of the charge for rape. He was however found guilty of culpable homicide punishable with death. His conviction and sentence were upheld by the Court of Appeal, Abuja Division on 24/4/2015. He has further appealed to this Court vide his notice of appeal filed on 22/5/15 containing 5 grounds of appeal.
J.O. Adele, Esq., learned counsel for the appellant, has distilled 5 issues in his brief of argument for the determination of this appeal. I am of the view that the issues are unnecessarily prolix. The sole issue to be determined in this appeal is whether the lower Court was right to have upheld the appellant’s conviction and sentence to death by the trial Court for culpable homicide punishable with death.
A careful scrutiny of learned appellant’s counsel’s brief of argument reveals that he is of the opinion that having been acquitted and discharged of the offence of rape, he ought also to have been discharged of the offence of culpable homicide punishable with death, with due respect to learned counsel, the ingredients of the two offences are quite different. Failure to prove one cannot result in an acquittal and discharge in respect of the other.
The law is settled that a conviction may be based on circumstantial evidence if it is such that it makes a complete unbroken chain of evidence pointing irresistibly to the conclusion that the accused person and no other committed the offence. The evidence must be such as to leave no room for speculation. See: Peter vs The State(1997) 12 NWLR (Pt. 531) 1; Adesina & Anor. Vs The State (2012) 14 NWLR (Pt. 1321) 429; State vs Ogbubunjo(2001) 13 NWLR (Pt. 685) 464; Lori & Anor. Vs. The State (1980) 8 – 11 SC 81.
In the instant case, there was an unbroken chain of events in that the deceased set out with two companions to hawk milk and was invited by the appellant into the uncompleted building where he worked, while her companions continued on her journey. Nobody saw her alive again. The appellant himself led the police to the shallow grave where he buried her. I do not agree with learned counsel that the circumstantial evidence in this case is capable of two interpretations.
In order to establish a charge of culpable homicide punishable with death the prosecution must prove the following elements of the offence beyond reasonable doubt:
(a) That the deceased died;
(b) That it was the act of the accused that caused the death; and
(c) That the act of the accused which caused the death was done with the intention of causing death or grievous bodily harm or knowing that death or grievous bodily harm was the likely consequence of the act.

See: Adava & Anor. Vs The State (2006) 9 NWLR (Pt. 984) 152; Michael Vs The State (2008) 13 NWLR (Pt. 1104) 361; Ochiba Vs The State (2011) 17 NWLR (Pt. 1277) 663.
Apart from the circumstantial evidence referred to above, as rightly held by the lower Court, the learned trial Judge found that the appellant was the last person seen with the deceased. The doctrine of “last seen” means that the law presumes that the person last seen with the deceased bears full responsibility for his or her death. See Madu Vs The State (2012) LPELR – 7867 (SC) 66 – 67 D – A, where it was held:
“Where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusions, there is no room for acquittal. It is the duty of the accused person to give an explanation relating to how the deceased met his or her death. In the absence of an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that the accused person killed the deceased.”

…………………….F…………………….

The following authorities were relied upon in that case: Igabele Vs The State (2006) 6 NWLR (Pt. 975) 100; Obosi Vs The State (1965) NWLR 140; Nwaeze Vs The State (1996) 2 SCNJ 61; Gabriel Vs The State (1989) 3 NWLR (Pt. 122) 45; Adeniji Vs The State (2001) 87 LRCN 1970.
The doctrine of “last seen” fully applies in this case. The appellant elected to rest his case on the prosecution’s case and therefore offered no explanation to rebut the convincing circumstantial evidence adduced by the prosecution. The judgments of the two lower Courts have not been shown to be perverse. There is no justification for interference by this Court.
For these and the more detailed reasons ably advanced in the lead judgment, I hold that the appeal lacks merit. It is hereby dismissed. I affirm the judgments of the two lower Courts.
Appeal dismissed.
CHIMA CENTUS NWEZE, J.S.C.:  My Lord, Galinje, JSC, obliged me with the draft of the leading judgment delivered now. I agree with His Lordship that, being unmeritorious, this appeal should be dismissed.
PW4 testified that he employed the appellant to fill the foundation of his house. He further, testified that, on November 21, 2011, at about nine ante-meridian, he left the appellant at the site. Just a while later, the deceased person went to sell fresh cow milk to the appellant. She disappeared. At four post -meridian, on the same day, the corpse of the deceased person was exhumed from the same premises where the appellant was working.
My Lords, given the above circumstances, I, entirely, agree with the lower Court, that the Prosecution proved its case against the appellant beyond reasonable doubt. Surely, where there is no eye witness account or direct evidence of the commission of an offence, a conviction may be based on circumstantial evidence, Igabele v State[2004] 15 NWLR (pt 896) 314.
The category of evidence known as circumstantial evidence, which is, more often than not, the best evidence, Obosi v State (1965) NMLR 119; Ukorah v State (1977) 14 SC 167; Lori v State (1980) NSCC 269; Onah v State [1985] 3 NWLR (pt 12) 236; Ebenehi v State [2009] All FWLR (pt 486) 1825, 1832-1833; Ijioffor v State [2001] 9 NWLR (pt 718) 371, 385, is the evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics, Ijioffor v State (supra) 385.
The reason is not far-fetched. In their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person caused the death of the deceased person, Idiok v State [2008] All FWLR (pt 421) 797, 818.
Put simply, it means that there are circumstances which are accepted so as to make a complete and unbroken chain of evidence, Omotola and Ors v State [2009] 7 NWLR. (pt 1139) 148, 178; (2009) LPELR -2663 (SC) 42-43. Where such circumstances are established to the satisfaction of the Court, they may be properly acted upon, wills on Circumstantial Evidence [Seventh edition] 324; A. Okekeifere, Circumstantial Evidence in Nigerian Law (Port Harcourt: Law-house Books, 2000) 1; Omotola v State (supra) 178.
Such was the circumstance in the instant case. In consequence, I endorse the concurrent findings of the lower Courts. Appeal dismissed.
EJEMBI EKO, J.S.C.: The Appellant was convicted for culpable homicide punishable with death, under Section 221(a) of the Penal Code Law of Kogi State, by the Kogi State High Court. His appeal to the Court of Appeal, sitting at Abuja, for the reversal of his conviction and sentence was refused and dismissed.
In this further appeal the issue really, as my learned brother, PAUL ADAMU GALINJE, JSC, found in the judgment just delivered, is: whether the prosecution proved their case against the Appellant beyond reasonable doubt?
The Appellant’s counsel had argued, vaguely, that the prosecution did not prove the ingredients of the offence of culpable homicide punishable under Section 221(a) of the Penal Code Law. He made no efforts, whatsoever, to pin-point what ingredient of the offence was not proved. This vague submission can easily be defeated, and it was actually defeated, by the presumption under Section 168(1) of the Evidence Act, 2011 that a judicial act,

…………………….G…………………….

shown to have been done in a manner substantially regular, is presumed to be regular and correct, and that all requisites for its validity were complied with. The burden is therefore on the appellant to show in what way (s) the decision he has appealed is wrong.
It is not enough for an appellant, seeking to reverse concurrent findings of fact by the trial Court and the intermediate Court, to allege that the judgments are wrong or faulty. He must show in what way (s) the decision of the intermediate Court affirming the decision of the trial Court was wrong, perverse or unreasonable and unwarranted having regard to the evidence available.
The Appellant herein did not testify at the trial Court. He merely rested his defence on the prosecution’s case. Meaning, he abides by the outcome of the evaluation of the prosecution’s case by the trial Court on the available evidence marshalled against him by the prosecution. In the instant case, the Appellant’s risk did not pay off. The trial Court, on the unchallenged evidence, found that the case presented by the prosecution proved beyond reasonable doubt that he culpably caused the death of Sefiyat Umoru on 21st November, 2011 and buried her corpse in a grave at the construction site.
Sefiyat, the deceased, was with Pw.3 and one other girl when the Appellant invited her to the construction site owned by the Pw.4 on the pretext that he wanted to buy the fresh cow milk that the deceased was selling. She was not seen alive from that point by any person. The available evidence established or suggested that the Appellant, alone with the deceased, had the opportunity of killing her.
Circumstantial evidence available pointed irresistibly to the Appellant being culpably responsible for the death of the deceased.
The Appellant did not discharge the evidential burden he had to cast reasonable doubt on the prosecution’s evidence tending to establish his guilty criminal mind or the mens rea. So much fuss was made of the dictum in AIGBADION v. THE STATE (2000) 2 SCNQR 1 (also reported as (2000) 4 SC (pt. 11 1; (2000) 7 NWLR (pt. 656) 555)that the burden of proving the guilt of the accused person rested throughout on the prosecution. The AIGBADION case does not say that the defendant does not bear the burden of refuting or rebutting the prosecution’s case. Rather, it affirms the defence burden of rebuttal. It says that that evidential burden befalls the defence only after the prosecution had led evidence proving prima facie the guilt of the defendant accused of committing an offence.
Section 131 (2)and 136(1) of the Evidence Act lay the burden of proving a particular fact on the person who wishes the Court to believe in its existence. Co-terminusly, the defence in criminal proceedings has the evidential burden of casting reasonable doubt on the inculpatory prosecution’s case.
The Appellant has not been able to refute the evidence marshalled against him by the prosecution. I have no cause, therefore, to disturb the concurrent judgments of the two Courts below against him.
I can only upset or reverse these findings of fact if the Appellant had shown that they are perverse, unreasonable and unwarranted. As the lead judgment, which I concur in, has found: no exceptional or special circumstances exist to warrant any interference with the conviction of the Appellant for the alleged culpable homicide punishable under Section 22(a) of the Penal Code by the trial Court, which conviction the Court of Appeal has affirmed.
The appeal is hereby dismissed. The decision of the Court of Appeal affirming the conviction and sentence of the Appellant is hereby similarly affirmed.

Appearances

PRINCE J. O ADELE with him, A. E Adele and P. T Lorbee-For Appellant

AND

MR. A. O. SULEIMAN (DD MOJ KOGI STATE) and V. Otori (L. O. A. G’s Chamber, MOJ, Kogi State)-For Respondent

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