In The Supreme Court of Nigeria
On Friday, the 15th day of December, 2017
Before Their Lordships
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE 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
HARUNA ALHAJI GALADIMA –Appellant
THE STATE – Respondent
OLUKAYODE ARIWOOLA, J.S.C.(Delivering the Leading Judgment):This is an appeal against the judgment of the Kaduna division of the Court of Appeal delivered on the 8th day of February, 2013 – Coram: Dalhatu Adamu, Habeeb A. Abiru, Ita G. Mbaba, JJCA.The appellant and two others were arraigned before the Jigawa State High Court, Kazaure Judicial Division, Coram: Tahir, J. for the offence of culpable homicide punishable with death, contrary to Section 221(b) andSection 246 of the Penal Code Law.
The three persons were:
(i) Sambo Alhaji Galadima
(ii) Haruna Alhaji Galadima
(iii) Shabe Alhaji Galadima
The three accused persons were charged with the following count:
That on or about the 1st day of June, 1996 at Kadagawa village of Babura Local Government Authority of Jigawa State within Jigawa Judicial Division you had formed a common intention to commit culpable homicide by doing an illegal act to wit by attacking and beating one Safiya Nomau with knowledge that death could be the probable consequence of your act and you thereby committed an offence punishable under Section 221 (b) of the Penal Code and Section 79 of the same law.
The prosecution called five witnesses in order to prove its case, while the three accused persons testified in their defence respectively, but did not call any other witness.
Upon conclusion of the testimonies, both the counsel prosecuting and the defence counsel addressed the Court. In its considered judgment, the trial Court found the three accused persons guilty of the offence of culpable homicide punishable with death as charged and each was accordingly sentenced to death as required by the appropriate law.
The three convicts appealed to the Court below on eight (8) Grounds of Appeal. They also filed a joint brief of argument and urged the Court below to allow their appeal, set aside their conviction and sentence. The appeal was found to lack merits and was accordingly dismissed by the Court below in its unanimous decision.
Further aggrieved and dissatisfied with the judgment of the Court below led the instant appellant who was the 2nd accused/appellant to appeal to this Court.
The appellant had filed an amended Notice of Appeal on 8/7/2015. He raised eieht (8) grounds in his amended notice of appeal. Briefs of argument were filed and exchanged by parties.
The appeal finally came up for hearing on 28/9/2017.
Learned counsel for the appellant, Tajudeen Oladoja Esq referred to the amended brief of argument he settled for the appellant, which was deemed properly filed and served on 18th June, 2015. He adopted and relied on same to urge the Court to allow the appeal and set aside the judgment of the Court below.
Earlier, Mr. Suleh Umar Esq, of counsel for the respondent had referred to the respondent’s brief of argument he settled and filed on 2nd July, 2013 but later deemed properly filed and served on 28th September, 2017 before the Court proceeded to hear the appeal.
Learned counsel also drew the attention of the Court to the respondent’s Preliminary Objection he has to the appeal which is argued in the brief.
The said preliminary objection is argued on pages 5 to 17 of the respondent’s brief of argument where he finally urged the Court to strike out the appeal. He however later argued the appeal on its merit and urged the Court to dismiss the appeal for being unmeritorious.
Generally, the rules of this Court allow a respondent to rely on a preliminary objection to the hearing of the appeal. The purpose of the objection is to bring the appeal to an end after being discovered to be incompetent and or fundamentally deceptive. In either case, it will be unnecessary to continue with the appeal once an objection is raised, without disposing of same. In other words, the Court is expected to deal with and dispose of a preliminary objection once raised by a respondent before taking any further step
in the appeal. See; General Electric Company Vs. Harry Ayoade Akande & Ors (2010) 12 (Pt.2) SCM 96; Lamidi Rabiu Vs. Tola Adebajo (2012) 6 SCNM 201; Udenwa & 1 Ors Vs Uzodinma & 1 Ors (2012) 12 (Pt.2) 472 at 483.
I have carefully considered the said preliminary objection raised to what the respondent called “sub issues” raised by the appellant. The objection is found to be devoid of merit and cannot be sustained. It is accordingly disallowed and overruled.
Now to the appeal on merit.
The appellant in his amended brief of argument distilled the following sole issue for determination.
“Whether in view of the evidence adduced at the trial Court, the Court of Appeal was right to have affirmed the decision of the trial Court that the charge of culpable homicide punishable with death was proved against the appellant beyond reasonable doubt as required by laws” (Grounds 1, 2 and 3).
In arguing this sole issue learned counsel for the appellant submitted that it is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests with the person who asserts it and that this is more often than not, the prosecution. He submitted that in discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. He relied on Section 135 (i) of the Evidence Act.
Learned counsel contended that the burden never shifts, and that if on the whole of the evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it and the prisoner is entitled to an acquittal. He however conceded that the required proof beyond reasonable doubt is not proof to the hilt and thus not synonymous with proof beyond all iota of doubt. He submitted that if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, “of course it is possible, but not in the least probable,” the case will be said to have been proved beyond reasonable doubt. He relied on Uzoka Vs. Federal Republic of Nigeria (2010) 2 NWLR (Pt.1177) 118; Jua Vs State(2010) 4NWLR (Pt.1184;Ike Vs. State (2010) NWLR (P1.1186) 41; Garba Vs. State (2010) 14 NWLR (Pt.1266). He submitted further that the burden of proving the guilt of an accused person rests throughout, on the prosecution.
Learned counsel contended that there is a plethora of authorities and it is settled beyond controversy that in a charge of murder, which is the same as a charge of culpable homicide punishable with death pursuant to Section 221 of the Penal Code, the essential ingredients that must be proved by the prosecution in order to secure conviction are:
(i) That the deceased died;
(ii) That the death of the deceased resulted from the act of the accused, and
(iii) That the accused caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence.
He relied on a number of cases including; The State Vs. Danjuma (1997) 5 NWLR (Pt.506) 512; Sule Vs. State (2009) 19 NWLR (P1.1169) 33.
He concluded that the prosecution must meet the above ingredients through credible evidence which may be direct or circumstantial. And that whether this evidence is direct or circumstantial, it must establish the guilt of the accused person beyond reasonable doubt.
Learned counsel further contended that the above ingredients are expected to co-exist, but where one of them is either absent or tainted with some doubt then the charge is said not to have been proved. He relied on Obudu Vs. The State (1999) 6 NWLR (Pt. 198) 4333; Ogba Vs. State (1992) NWLR (Pt.222) 164.
Learned counsel referred to Section 221 (b) of the Penal Code pursuant to which the appellant was charged. He referred to the testimony of PW1-PW6 and contended that the prosecution cannot be safely said to have proved the offence of culpable homicide punishable with death against the appellant beyond reasonable doubt. He submitted that there are glaring contradictions and inconsistencies in the evidence adduced by the prosecution which has, to a large extent, cast reasonable doubt upon the guilt of the appellant who ought to have been given the benefit of the doubt. He submitted further that the sum total of the evidence led by the prosecution merely showed that the appellant probably committed the offence, thus the requisite standard of proof was not attained to justify
his conviction and sentence.
Learned counsel conceded that on the strength of the testimonies of the prosecution witnesses, there was no dispute that Safiya Nomau is dead. He therefore submitted that the first ingredient of the offence was proved.
However, on the second ingredient of the offence, that is, whether it was the appellant that caused the death of the deceased, learned counsel submitted that while the testimony of PW2 and PW4 were contradictory in nature, the testimonies of PW3 and PW5 did not link the appellant to the commission of the offence.
Learned counsel contended that the two star witnesses for the prosecution; PW2 and PW4, Garba Adamu and Hardo sule respectively contradicted themselves materially in describing the involvement of the appellant in the alleged crime. He referred to the testimonies of both prosecution witnesses – (PW2 and PW4). He also referred to the testimony of PW3 under both Examination in-Chief and Cross examination and submitted that with regard to the materiality of the contradiction in the testimonies of PW2 and PW4 which touches and concerns the identity of the appellant and his presence at the scene of the crime in one hand and the failure of the trial Judge to make any findings in his judgment, this is a case that should warrant the intervention of this Court in setting aside the conviction and sentence imposed on the appellant as affirmed by the Court below.
Still on the testimonies of PW2 and PW4, learned counsel contended that their testimonies must be considered with extreme caution. According to him, the vital issue is whether the inconsistencies in the testimonies as a whole were sufficient to cast doubt on the general story that the appellant took part in the killing of the deceased. He contended that conversely, it is the appellant that must be believed that he did not kill the deceased. He submitted that where there are such contradictions and inconsistencies in the evidence before a criminal Court, such as to cast reasonable doubt upon the guilt of the accused person, such accused person should be given the benefit of the doubt and should not be convicted on the basis of such unreliable evidence. He relied on Onubogu V. State (1974) 9 SC1. He submitted further that if the learned trial Judge had considered the contradictory testimonies of the prosecution witnesses with relevant laws, the trial Court would have entertained doubt as to whether death of the deceased was caused by the act of the appellant and would have resolved the doubt in favour of the appellant.
Learned counsel referred to the testimony of PW5 on who investigated the case. He conceded that even though there is no obligation on the prosecution to call a host of witnesses and that what matters really is not the number of witnesses called but rather the quality of the evidence from the witnesses called. He contended that the prosecution failed to call one Sergeant Sani who was said to have investigated the case. Also not called was the husband of the deceased – Nomau Tela.
Learned counsel contended that failure of the prosecution to call both the police officer- Sergeant Sani who was alleged to have investigated the case and the deceased’s husband was fatal to the prosecution’s case. He further contended that the failure of the prosecution to tender the extra-judicial statement of the appellant was also fatal to its case. He referred to the testimony of PW1- Ezekiel Sale on the statement obtained from the 1st accused person after the case was transferred from Babura to their office on 16/6/96.
Learned counsel urged the Court to resolve the sole issue in favour of the appellant and allow the appeal. He further urged the Court to set aside the judgment of the Court below which had earlier affirmed the conviction and sentence of the appellant by the trial Court. And in its place order the discharge and acquittal of the appellant.
In responding to the appellant’s argument of the appeal, learned counsel for the respondent referred to his brief of argument filed on 02/07/2013 but deemed properly filed and served on 28/9/2017, the day this appeal was argued. The respondent adopted the sole issue distilled by the appellant and predicated his argument on same.
Learned counsel conceded that the burden of proving the commission of an offence is squarely saddled on the prosecution by virtue of Section 138 (2) of the 1990 Evidence Act, (now Section 135 (2) of the 2011 Evidence Act). He contended that by the above provisions of the Evidence Act, the law requires that the proof of any criminal allegation must be proof beyond reasonable doubt. He relied on Moses Vs. State (2006) 11 NWLR (Pt.992) 458 at 482. He submitted that in the instant case, the
prosecution had proved the ingredients of culpable homicide punishable with death against the appellant and his co-convicts, beyond reasonable doubt. He also gave the three ingredients the prosecution is required to establish to prove its charge of culpable homicide punishable with death.
Learned counsel referred to the concession given by the appellant on the first ingredient of the fact that the deceased had died and therefore did not require any proof again, as there was no dispute on it.
Learned counsel referred to the sub issues raised by the appellant on alleged contradictions in the testimonies of the prosecution witnesses; alleged inconsistency; failure to call particular witnesses by the prosecution; failure to tender extra judicial statement of the appellant by the prosecution at the trial and failure to subject Exhibit 2 (a hoe) to forensic analysis. He submitted that there was no contradiction whatsoever in the testimonies of PW2 and PW4. He reproduced the alleged testimonies of the said prosecution witnesses. He contended that from the testimonies of the said witnesses there was no contradictions.
Learned counsel contended that before it can be said that two witnesses contradict each other on a piece of evidence, it must be shown that they were together and they perceived the fact in issue from the same angle. He relied on Esangbedo Vs. State (1989) 4 NWLR (Pt.113) 57 at 58. He contended further that both PW2 and PW4 did not observe the particular fact in issue from the same circumstance and or at the same time. He submitted that there was no contradiction in the testimonies of the Prosecution witnesses to warrant the setting aside of the judgment of the Court below which affirmed the conviction and sentence of the appellant by the trial Court.
Learned counsel referred to the submission of the learned appellant’s counsel on the failure of the prosecution to call on one Sgt Sani and the deceased husband as witnesses, he contended that the onus placed on the prosecution by the law can be discharged with a single witness, if through the said witness all the ingredients of the offence could be established. He submitted that the prosecution is not under any duty to call a particular witness, in so far as it can prove its case beyond reasonable doubt through some other witness or witnesses. He relied on ljiofor Vs. State (2001) 3 MJSC 61 at 84-85. He urged the Court to discountenance the argument of the appellant’s counsel with regard to the failure of the prosecution to call one Sergeant Sani and Nomau Tela. He submitted that the five witnesses called by the prosecution proved the offence of culpable homicide punishable with death against the appellant.
Learned counsel referred to the argument of the learned counsel for the appellant on failure of the prosecution to tender the extra judicial statement of the appellant, relying on Section 167 (d), formerly Section 149 (d) of the Evidence Act, 1990. He referred to the four conditions that must be satisfied before the presumption under that law could be achieved or arrived at. He relied on Tewogbade Vs. Akande (1958) NMLR 404.
Learned Counsel contended that there is no evidence which shows that the appellant gave his statement to the Police. Nothing on record to show that the appellant in particular made statement other than in the words of PW1 who stated as follows:
“l did the same with all accused persons”
He contended further that the above statement of the police is vague, to say the least, and no Court of law will rely on it as evidence showing that there is an extra judicial statement of the appellant in existence somewhere.
Learned counsel contended that assuming but without conceding that the Court will consider the above vague statement of the Police to conclude that there is in existence a confessional statement made by the appellant, then he asked, “how could, not producing the confessional statement of the appellant be unfavourable to the prosecution?” He relied on Ebeinwe Vs The State (2011) 7 NWLR (Pt. 1246) 402 on relying on Section 149 (d) of the Evidence Act, 1990.
He submitted that the particular provision of the Evidence Act is not applicable to this case, as failure to produce the statement, if at all there was one in existence, did not affect the case of the prosecution in any material form. He urged the Court to hold that the prosecution succeeded in proving the offence of culpable homicide punishable with death against the appellant beyond reasonable doubt. He urged the Court to resolve the sole issue
formulated for determination of the appeal against the appellant but in favour of the respondent, and dismiss the appeal and accordingly affirm the decision of the Court below which had earlier affirmed the conviction and sentence of the appellant by the trial Court for the offence of culpable homicide punishable with death.
As I stated earlier, the appeal was predicated on a Notice of Appeal duly amended and filed on 8/7/2015 but deemed properly filed and served on 15/6/2015. The appellant had raised in the said amended Notice of appeal eight (8) grounds of appeal. But in his amended brief of argument, he formulated a sole issue for the determination of the appeal from only three Grounds of appeal viz: grounds 1,2, and 3 of the amended notice of appeal.
It is trite that by the rules of practice and procedure, in particular, of the appellate Courts, appeals are to be determined on the issues distilled from the competent grounds of appeal raised against the judgment being appealed. Therefore, any ground of appeal from which no issue has been formulated is deemed to have been abandoned and is liable to be discountenanced and struck out by the Court. Indeed, any such ground is lifeless and may not need a specific order to have it stuck out yet should still be struck out. See; Emespo J Continental Ltd Vs. Corona Shifah – Rtsgesellschaft & Ors (2006) 11 NWLR (pt.991) 365: (2006) 8-9 SCM 149; (2006) 5 SC (Pt. 1) 19; (2006) 26 NSC QR 1144; Bisiriyu Akinlagun & Ors Vs. Taiwo Oshoboja & Anor (2006) 12 NWLR (Pt.993); (2006) 7 SCM 49, (2006) 5 SC (Pt.11) 105; Maobison Inter Link Ass Ltd vs UTC (Nig) Plc (2013) 9 NWLR (Pt.1359) 197; (2013) 72 SCM 112; (2013) 3-4 Sc (Pt.1) 109; (2013) 4 SCNJ 137.
In this appeal, no issue has been formulated from grounds 4, 5, 6, 7 & 8 of the Amended Notice of Appeal. Meaning that those grounds are deemed abandoned. Accordingly, the said grounds 4, 5, 6, 7 & 8 are struck out.
Now to the sole issue distilled for the determination of the appeal. It reads thus:
“Whether in view of the evidence adduced at the trial Court, the Court of Appeal was right to have affirmed the decision of the trial Court that the charge of culpable homicide punishable with death was proved against the appellant beyond reasonable doubt as required by laws”
As shown earlier, the appellant along with two others were charged with, tried, convicted and sentenced for the offence of culpable homicide punishable with death, pursuant to Section 221 (b) of the Penal Code.
The said law provides as follows:
“Except in the circumstances mentioned in Section 222, culpable homicide punishable with death shall be punishable with death …..
(b) If the doer of the act knew or had reason to know that death would be the probable not only a likely consequence of the act or of any bodily injury which the act was intended to cause.”
Generally, homicide means the killing of one person by another. In other words, it is the act of purposely, knowingly, recklessly, or negligently causing the death of another human being. However, culpable homicide means a wrongful act that results in a person’s death but does not amount to murder. See, Umaru Adamu Vs The State (2014) 10 NWLR (pt.1415) 441; (2014) 8 SCM 1; (2014) 4 & 5 SC 1; (2014) All FWLR (Pt.733) 1938.
It is settled law that to succeed in a charge of culpable homicide the prosecution is required to prove the following ingredients of the offence:
(a)That the death of a human being has actually taken place;
(b) That the death has been caused by the accused;
(c) That the act of the accused was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.
See; Tunde Adava & Anor Vs. The State (2006) 9 NWLR (pt.984) 152; (2006) 3 SCM 1, (2006) 2 SC (pt.11.) 136; Maikudi Aliyu vs. The State (2013) 12 SCM (Pt.2) 195.
It must however be noted that all the above three ingredients of the offence must necessarily co-exist and none must be lacking. Where one is missing or not established, it means that the prosecution has simply failed to discharge the burden of proof that the law
places on it in order to succeed with the charge.
In this appeal, the appellant has conceded that there is no dispute that there is clear evidence that the prosecution indeed established that the death of a human being, that is; one Safiya Nomau had occurred or taken place. What is actually being contested is the involvement of the appellant in the death of the deceased and whether the prosecution proved beyond reasonable doubt that the appellant intended to cause death or that he knew that death would be the probable consequence of his alleged act.
In order to establish the other two ingredients, the prosecution called five (5) witnesses consisting of three (3) civilians and two (2) policemen.
PW1 – one Ezekiel Saleh PC. No. 64592 of State Criminal Investigation Department, Dutse and PW5 – Sergeant Adamu Ibraim of Babura, in Jigawa State.
The two policemen testified before the trial Judge as to what each of them saw and did in their respective official capacity. While the three civilians, PW2, PW3 and PW4 also testified on what each of them saw and did on the matter.
PW2 was one Abdullahi Dabo. He was a farmer and cattle rearer.
He lived at Kagadawa. He testified, inter alia, as follows:
“On 1st of June, 1996 I was at home Kagadawa on Saturday. I know Alhaji Galadima, the father to the accused persons and Safiya Nomau, the deceased, were having civil case before an Area Court at Babura and Ringim. The land in dispute was neither given to Galadima nor to the deceased, Safiya. On Friday night the deceased reported to her Ward head that since she was not given the land, she would go and erect a hut on the land in dispute. She also notified the village head of her intention. The Galadima family also planned that if they see the deceased on the land in dispute, they would kill her.
I was near the farm in dispute when I saw Safiya the deceased on her way to the farm. On reaching (to) the farm I also saw Haru (Appellant) then I saw Sambo and Shabe Hassan – (1st & 3rd Accused). They killed the woman with sticks and a hoe, they cut her on the head. I then ran away to the village head of Magarya and reported to him. Haru (the appellant) beat the deceased first two times with a stick; Sambo also used the stick in the beating. I saw Hassan come with a spear but I was frightened, I therefore ran away to report the incidence (sic). The husband of the deceased, named Nomau was also chased and beaten to unconsciousness. He was together with his wife, that when he saw her dead he tried to run away.
The village head, the District Head and one Dabo came to the scene of the crime. When the accused persons were asked by the village Head, they said they have killed or committed the offence. The deceased and her husband Nomau were conveyed to Babura general hospital. Nomau was admitted for 21 days and Safiya, the deceased was buried at the farm in dispute.” (Brackets supplied)
Under cross examination, the witness maintained that the appellant beat the deceased both on her shoulders and on the head.
PW4 was one Hardo Saleh. He testified, inter alia, under examination-in-Chief as follows:
“I know the accused persons. We live in the same village. They are my subjects. The deceased on Saturday the 1st of June, 1996 came to me and asked me to assist her erect a hut on her land. I was on my way to the farm to assist her as she requested. Before I reach the farm, I saw the accused except Haru (the appellant) going towards the place where the deceased woman wanted to erect a hut. I then heard them saying kill her, kill her. I therefore retreated backward and watched. When they started beating the woman I hid myself, I heard someone, her neighbor saying shame, shame on yourselves all of you beating a woman or killing a woman…..
They went away and some people and I carried the deceased under the three…..
The deceased was taken to Babura and brought back for burial. We buried her”
Under cross examination by the defence counsel, the witness confirmed his testimony in chief, but went further, in responding to questions, that the deceased never quarreled with the accused persons when the land civil suit was going on. And that the village head gave the deceased permission to erect the hut on the said land in dispute.
Upon consideration of the entire testimony of the prosecution and the defence, the trial Judge was satisfied that the prosecution discharged the burden to establish the other two ingredients of the offence charged.
In his considered judgment that went on appeal to the Court below, the Judge found on record, inter alia, that the evidence before the Court revealed or showed that the three accused persons were at the scene of the crime and that there was a fight which resulted in the death of the deceased. The trial Judge also found that there was no doubt that the fight or the attack on the woman was intended. He further opined as follows:
“In my view in this case, the accused persons had the intention to cause death or to cause such injury that would result in death. It is hardly incredible that blows struck by 3 able bodied men of the stature of the accused persons in this case, with sticks and hoe on a woman (the deceased) could not cause her death or cause bodily injuries….
From the totality of the evidence before the Court, I must say that I have no doubt in my mind that the accused persons did know that death would be the probable consequence of their acts. This is because, both PW2 and PW4 saw them attacked the deceased and exhibit 2 was found at the scene of the crime.”
The trial Court opined that he believed the evidence of all the prosecution witnesses but was not in the least impressed by the defence as witnesses. The Court finally held that the prosecution had proved its case beyond reasonable doubt that the accused persons had the intention to cause death of the deceased or that they know or have reasons to know that death would be the probable and not a likely consequences of their acts. They were found guilty, convicted and sentenced to death by hanging.
Upon an appeal to the Court below, the Court found that there is strong evidence of two persons on record, who testified to what they witnessed when the deceased was killed, the weapons used, being sticks and a hoe, and how she was killed. PW2 was recorded under cross examination on page 14 of the record as saying:
“Haru (the Apellant) beat the deceased on the shoulder and the head… Then Shabe (3rd accused) went with a hoe (Magirbi) and cut her on the head…… Sambo (1st Accused) beat the deceased on the head with a stick”
PW3 (Village Head) who was invited to the scene testified, inter alia, as follows:
“I found the deceased … dead covered with Sana mat. There were cuts on both husband and wife’s bodies. There was a cut on her head, there were many on the shoulders and her back.”
The Court below rightly found that the testimonies of all the Prosecution witnesses showed that the deceased died on the spot after the attack, while her husband was injured and beaten to unconsciousness. All the issues raised in the appeal were resolved against the appellants and the appeal was found and adjudged to be liable to dismissal and was accordingly dismissed. The conviction and sentence of the appellants by the trial Court was affirmed by the Court below.
That decision of the Court below led to the instant appeal by the appellant who raised the sole issue earlier alluded to as – whether in view of the evidence adduced at the trial Court, the Court of Appeal was right to have affirmed the decision of the trial Court that the charge of culpable homicide punishable with death was proved against the appellant beyond reasonable doubt as required by laws.
There is no doubt that the ingredients the law requires the prosecution to establish in order to prove an offence of murder is similar to that of a charge of culpable homicide punishable with death under the Penal Code. These ingredients are:
(i) The death of the deceased;
(ii) That the death resulted from the act of the accused; and
(iii) That the accused knew that his act in question will result in the death or did not care whether the death of the deceased will result from his act.
See; The State Vs. Musa Danjuma (1997) 5 NWLR (Pt.506) 512; Durwode Vs. The State (2000) 15 NWLR (Pt.691) 467 at 487- 488; Ogbu & Anor Vs The State (2007) 4 SCM 169; Umaru Adamu Vs The State (2014) 10 NWLR (Pt.1416) 441; (2014) 8 SCM 1; (2014)4 & 5 SC 1.
There is no doubt and it is beyond any argument that all the required ingredients of the offence of culpable homicide punishable with death must co-exist and be proved by the prosecution beyond reasonable doubt. See; Ubani vs. The State (2003) 18 NWLR (Pt. 851); Uguru Vs. The State (2002) 9 NWLR (Pt. 771) 90.
However, the required proof beyond reasonable doubt which the prosecution is expected to show does not mean proof beyond
all shadow of doubt and the evidence adduced by the prosecution is strong enough against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence; “of course it is possible but not in the least probable,” then the case is proved beyond reasonable doubt. See; Jimoh Michael Vs. The State (2008) 13 NWLR (Pt. 1104) 361; (2008) 10 SCM 83; (2008) 34 NSCQR (Pt.11) 700.
In the instant case, the prosecution was found by the trial Court to have adduced sufficient evidence to prove all the required ingredients of the offence but the defence of the appellant includes contradictions and inconsistency in the testimonies of the prosecution witnesses.
It is interesting to note that the learned appellant’s counsel had described the PW2 and PW4 as the two leading and star prosecution witnesses. He contended that the two witnesses contradicted themselves in their respective description of the involvement of the appellant in the alleged crime. According to learned counsel, while PW2 mentioned that he saw the appellant at the scene of the crime, the PW4 on the other hand said he did not see the appellant at the scene. And that PW3 was categorical in his testimony that when he got to the scene of the crime “there was nobody at the scene of the crime among the accused persons” but that he found the deceased and her husband dead covered with Zana mat.”
There is no doubt that where there are contradictions in the testimonies of the prosecution witnesses on a material fact and the said contradictions are not explained by the prosecution through any of its witnesses, it behoves the trial Court not to speculate on or profer the explanation for such contradictions and thereby pick and choose from the evidence of the prosecution witnesses that which to believe. See; Boy Muka & Ors Vs. The State (1976) 9 & 10 SC 305; Christopher Arehia & Anor Vs. The State (1982) NSCC 85; (1982)4 SC 78.
Generally, the law is settled that where there are material contradictions and inconsistencies in the evidence of the prosecution, the accused is entitled to be given the benefit of the doubt so created as a result of the inconsistencies. See; Onubogu Vs. The State (1974)9 SC.1; Nwabueze Vs. The State (1988)4 NWLR (Pt.86) 16.
However, it is trite law that for inconsistency or contradiction in evidence to negatively affect its veracity, such inconsistency and contradiction must be materially significant as to affect negatively the overall case of the prosecution, otherwise such insignificant inconsistency or contradiction will be discountenanced by the Court. See; The State Vs. Azeez & Ors (2008) 8 SCM 175; (2008) 4 SC 188;Dibie & 2 Ors Vs. The State (2007) 7 SCM 101; (2007) 3 SC (Pt.1) 176; Stephen John & Anor Vs. The State (2011) 12 (Pt.2) SCM 238.
In this case, I am unable to see any inconsistency or contradiction significantly material in the testimonies of the prosecution witnesses on the material fact in issue required to establish the charge against the appellant. Indeed, this Court has laid it down in several cases that the contradictions in the testimony of prosecution witnesses that will weigh on the mind of the Court must be such as are fundamental to the real question before the Court; the contradictions must be material and go to the root of the case to create a reasonable doubt in the mind of the Court. See; Eze Ibeh Vs. The State (1997) 1 NWLR (pt.484) 632; (1997) LPELR 1389 (SC).
The defence has also challenged the prosecution for failure to call as witnesses a police officer and the spouse of the deceased. There is no doubt that the defence is not to determine how many witnesses the prosecution will call to testify in Court. The State is at liberty to call only one witness or as many as it desires as long as the testimony of a sole witness is sufficient to establish the ingredients to the charge. See; Bayo Adelumola Vs. The State (1988) NWLR (pt.73)683; (1988) LPELR 119 (SC). I cannot see how failure of the prosecution to call the husband of the deceased and one of the policemen that investigated the case has negatively affected the prosecution’s case. In other words, this did not have effect on the findings of the trial Court as to who did what that led to the death of the deceased.
Without any further ado, I am of the view that the sole issue distilled for determination should be and is hereby resolved against the appellant. That is, that the Court below was right to have affirmed the decision of the trial Court that the charge of culpable homicide punishable with death was proved against the appellant beyond reasonable doubt as required by law.
In the final analysis, this appeal fails and is accordingly dismissed.
In the circumstance, the judgment of the Court below delivered on 8th day of February, 2013 which affirmed the conviction and sentence of the appellant by the trial Court is hereby affirmed.
Appeal is dismissed.
JOHN INYANG OKORO, J.S.C.:This appeal is against the judgment of the Court of Appeal Kaduna delivered on the 8th of February, 2013 wherein the lower Court affirmed the judgment of the Jigawa State High Court which convicted the appellant of culpable homicide punishable with death, contrary to Section 221(b) and Section 246 of the Penal Code.
My learned brother, Olukayode Ariwoola, JSC obliged me a draft copy of the judgment he has just delivered with which I am in agreement that this appeal is unmeritorious and deserves an order of dismissal. Although my learned brother has admirably resolved the sole issue formulated for the determination of this appeal, I wish to chip in a few words in support of the judgment only.
The prosecutions evidence against the appellant as can be garnered from the record of appeal shows that there were eye witnesses who saw the appellant and others beat up the deceased on the disputed land. PW2 testified that the appellant and two of his brothers beat the deceased with sticks and hoe. The PW2 also saw the attackers with a spear. PW4 also saw this gruesome murder of the deceased.
PW3, the village head who permitted the deceased to erect a hut on the land also testified. There was indeed abundance of evidence before the trial Court which proved that the appellant took part in the killing of the deceased.
The complaint of the appellant in the sole issue is that the prosecution failed to prove the charge beyond reasonable doubt. I agree with my learned brother in the lead judgment that the prosecution proved this charge against the appellant beyond reasonable doubt. All that the law requires from the prosecution is to lead credible evidence to show and prove the following:
1. The death of the deceased.
2. That the death of the deceased was as a result of the act of the accused person; and
3. That the accused knew that his act will result in the death of the victim or that his act will cause or result in grievous bodily harm to the deceased.
See Okereke V. The State (2016) LPELR – 40012 (SC), Durwode V. The State (2000) 15 NWLR (pt. 691) 467, Asuquo V. The State (2016) LPELR – 40597 (SC).
From the evidence adduced by the prosecution in this case, the above ingredients have been satisfied.
Proof beyond reasonable doubt does not mean proof beyond 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 Miller V. Minister of Pensions (1947) 3 ALL ER 373, Nasiru V. The State (1993) 7 NWLR (pt. 307) 511; Fabian Nwaturuocha V. The State (2011) 6 NWLR (pt. 1242) 170.
On the whole, I agree with the Court below that the learned trial judge was right to hold that the prosecution proved this charge beyond reasonable doubt. There is no merit in this appeal and I accordingly dismiss same. I affirm the judgment of the Court below.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment just delivered by my learned brother, Ariwoola, JSC, and I agree with him that the Court below was right to affirm the decision of the trial Court that the Charge of culpable homicide punishable with death was proved in this case.
My learned brother covered the field, and I will only comment and emphasize the point he made about the Appellant’s contention that the evidence of PW2 and PW4, who was an eye-witness to the crime he committed, were contradictory, unreliable and incredible.
It is settled that Witness testimonies can only be said to be contradictory when they give inconsistent accounts of same event, and for such contradictions to vitiate a decision, they must be so material that they cast doubt on the case presented as a whole.
Thus, it is only a contradiction in respect of a material fact that would make a Court doubt the evidence, and what is
material will depend on the facts of the particular case – see Eke V. State (2011) 3 NWLR (Pt. 1235) 589, Kalu V. State (1988) 4 NWLR (pt. 90) 503, and Ikemson V. The State (1989) 3 NWLR (Pt 110) 455 at 474/5, where this Court per Karibi-Whyte, JSC, aptly stated as follows-
I think it is right to postulate that material evidence, is such evidene, which on account of its logical nexus with the issue tends to influence decisively the establishment of the fact in issue. – – – For instance, the evidence which of the Appellants shot PW1 or PW2 or which leg PW2 was shot is not material to the issue of fact that PW1 or PW2 was shot. That PW1 or PW2 was shot at is material to the crime with which Appellants have been charged. Similarly, the sequence of pointing a gun at PW1 and PW2 and blocking of the road on a Motor Cycle. The fact was that there was credible evidence that the gun was pointed at them and the road was blocked by persons on a Motor Cycle. Thus, none of the contradictions alleged – – is material to affect the establishment of the fact that the offence of robbery with arms was committed, and that Appellants have been identified as those who committed the offence. The alleged contradictions are not material to the facts in issue, no explanation seems to me to be required.
Facts in issue, as defined in Section 258 of the Evidence Act 2011:
Includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows.
A particular fact can only be said to be in issue when its assertion by a Party is denied by the other and it becomes a fact in dispute. So, an issue is said to be joined on a particular fact making its proof necessary when its assertion is disputed by the opposing party- see Mohammed & Anor V. State (2007) 11 NWLR (pt 1045) 303.
In this case, PW4 testified that he saw the Appellant and the other two Accused Persons kill the deceased, while PW2 said-
The deceased – – – asked me to assist her erect a hut on her land. I was on my way to the farm to assist her as she requested. Before I reach (sic) the farm. I saw the Accused except Haru (the Appellant) going towards the place where the deceased woman wanted to erect a hut I then heard them saying kill her; kill her. I therefore retreated backward and watched. When they started beating the woman I hid myself I heard someone, her neighbor; saying shame, shame on yourselves all of you beating a woman or killing a woman – –
The fact in issue is whether the Appellant participated in killing the deceased at the said farm. PW2 said he was on his way to the farm and had not reached the farm when he saw the others without the Appellant heading towards the farm. He retreated and hid himself, and could only hear what was being said. PW4, on the other hand, was at the scene of the crime, and saw all three Accused Persons attacking the deceased. He specifically stated that he saw the Appellant beat the deceased with a stick on her head and shoulder.
What is contradictory about the evidence of PW2 and PW4? One witness saw the Appellant beating the deceased with a stick, and the other hid himself on the road, and did not see anything.
There is nothing contradictory about the evidence and I also dismiss the Appeal, and affirm the decision of the Court of Appeal.
EJEMBI EKO, J.S.C.: The appellant was one of the three (3) persons accused of the unlawful killing of one Safiya Nomau. They were jointly charged and tried under Sections 221(b) and 79 read with 246(b) of the Penal Code Law of Jigawa State. After the trial, the High Court of Jigawa State in its judgment, delivered on 20th September, 2000, convicted and sentenced the appellant to death for culpable homicide. He unsuccessfully appealed. The appeal was, on 8th February, 2013, dismissed by the Court of Appeal, Kaduna Division (the Lower Court). The conviction and sentence were affirmed by the Lower Court; hence, this further appeal.
The only issue, formulated for the determination of this appeal, is on facts. That is, whether, in view of the evidence at the trial Court, the lower Court was right in affirming the decision of the trial Court that the alleged culpable homicide punishable with death was proved beyond reasonable doubt. The complaint of the appellant is, therefore: whether the two Courts below were right in their concurrent findings of facts.
When the appeal is predicated on the question of facts, concurrently found by the Courts below, the attitude of this Court is well settled. This Court will not interfere with those findings of facts except when appellant shows special or exceptional circumstances justifying the interference. Such special or exceptional circumstances include the showing either that there was miscarriage of justice; or a serious violation of some principles of substantive or procedural law; or that the findings of fact are perverse, in the sense that they do not at all flow from the totality of the evidence at the trial and or that the findings are unreasonable. See ENANG v. ADU (1981) 11-12 SC 25 at 42; LOKOYI v. OLOJO (1983) 8 SC 61 at 73; OJOMU v. AJAO (1983) 9 SC 22 at 53; IBODO v. ENAROFIA (1980) 5-7 SC 42; AKAYEPE v. AKAYEPE (2009) 11 NWLR (pt. 1152) 217 SC. Notwithstanding this stance of this Court, this Court is still being perpetually inundated by appeals predicated solely on concurrent findings of facts by Courts below to this Court. The connivance of legal practitioners in this regard cannot be ruled out; particularly by those desperately wanting to make up their qualifying appearances in this Court to enable them apply for the award of the privilege of Senior Advocate of Nigeria. The sooner the balance between this privilege and the congestion in, or the work load of, this Court was struck the better for this Court and those seeking to be conferred the privilege. I say no more for now.
In this appeal what, now, are the exceptional circumstances shown by this appellant to warrant our intervention and interference with the concurrent findings of facts? Appellant’s counsel submits that there are glaring contradictions and inconsistencies in the evidence for the prosecution at the trial Court, which had cast reasonable doubt upon the guilt of the appellant, as the accused person.
One of such contradictions pointed at by the appellant’s counsel is that the PW.2 and Pw.4 allegedly “contradicted themselves in describing the involvement of the Appellant in the alleged crime”. What he calls contradiction is merely the fact that, while the pw.2 allegedly said he saw the appellant; the PW.4, on the other hand, said he did not see the appellant at the scene.
The PW.4’s evidence was not about what he saw or did not see at the scene of crime that is; the farm. His evidence situated properly is specific that:
Before I reached the farm, I saw all the accused except Haru (the appellant) going towards the place where the deceased woman wanted to erect a hut.
The actual locus criminis was not the road or way towards the farm but at the place the deceased wanted to erect a hut at the farm.
The PW.2, at the scene of crime, saw all the three accused, including the appellant, in the farm. He also saw all the three (3) of them attacking the deceased. He was specific about the role played by the appellant in the joint attack. He maintained doggedly, throughout his evidence, that the 2nd accused (the appellant), wearing a white shirt, beat the deceased with stick on the head and shoulder.
The 2nd accused, the appellant, testifying as Dw.2, did allege that he was not at the scene of crime, or the locus criminis. His alibi was debunked by the pw.2 and the Dw.3. There is no doubt, from Dw.3’s evidence, that the appellant was at the locus criminis. He testified thus in-chief at page 28 of the record that the deceased had gone to the disputed land and
Built a hut on the farm land in dispute. Her husband invited people to assist in carrying up the roof. When they saw us, 3 accused, they refused to assist. We were at the farm by that time. When the deceased came and met her senior sister with us she started abusing us but I told them not to mind her. We, the 3 accused persons.
I repeat, for purposes of emphasis, that there were no contradictions in the evidence of Pw.2 and pw.4. Both, in my firm view, testified truthfully and honestly as to what they each saw. The evidence of pw.2 was amply corroborated by the Dw.3 that all the 3 accused, including the appellant, were at the scene of crime. That thus, defeats and debunks the alibi pleaded as the appellant’s defence. He had been fixed physically to the scene of crime.
The appellant’s counsel had strenuously called in aid the cases: ONUBOGU v. THE STATE (1974) 9 SC 1; BOY MUKA & ORS v. THE STATE (1976) 9 – 10 SC 305 at 325; CHRISTOPHER AREHIA & ANOR v. THE STATE (1982)NSCC 85, (1982) 4 SC 78; IBEH v. THE STATE (1997) 1 NWLR pt. (484) 632 at 661, on the effect of when prosecution witnesses
contradict one another. It is true that when prosecution contradict one another on material facts, the Court cannot pick and choose which of them to believe or disbelieve. In such a situation, there has been a failure on the part of the prosecution to prove their case beyond reasonable doubt.
In the instant case, the alleged contradictions in the evidence of Pw.2 and Pw.4 is just a mere phantom. They do not exist in actuality. The appellant’s counsel had unjustly criticised the learned trial judge for his finding at page 42 of the record, that is-
”It is the evidence before the Court that the 3 Accused persons were seen at the farm in dispute by PW.2 and PW.3…(The) evidence (was) not challenged or shaken during cross-examination.”
The finding is not perverse. It is supported by printed evidence. The Dw.3, on this, had corroborated the Pw.2. Like the learned appeal Justices at the lower Court, I have no cause to fault the finding of fact by the trial Court.
The appellant’s counsel, quite correctly, conceded that the death of Safiya Nomau, the deceased, on 1st June, 1996. He, however, argued that when the evidence of the prosecution is placed side by side with that of the defence, there is doubt as to whether the death was caused by the act of the appellant.
The unchallenged and indubitable facts are that the appellant, with two others, jointly attacked the deceased on the fateful day and at the material time. They were seen jointly attacking her with sticks, hoe and spear. They inflicted injuries to her on the head, shoulder and her body. The deceased died on the spot, as a result. The law on a joint commission of crime and the liability or criminal responsibility of each person who participated in the joint act is thus, as restated by this Court in GODWIN ALAO v. THE STATE (2015) LPELR -24686 (SC)-
Where more than one persons are accused of a joint commission of a crime, it is enough that they all participated in the crime. What each of the participants did in furtherance of the commission of the crime is immaterial. The mere fact that (there exists) the common intention manifesting in the execution of the common object is enough to render each of the accused person in the group guilty of the offence. See NWANKWOALA v. STATE (2006) 14 NWLR (pt.1000) 663; IKEMSON v. STATE (1989) 3 NWLR (pt. 110) 455; OYAKHIRE v. STATE (2001) 15 NWLR (pt. 1001) 157.
Putting the case presented by the prosecution side by side with the case of the defence, I do not see the so much doubt created as to whether the death of the deceased was caused by the joint act of the group that attacked Safiya Nomau on her head, shoulder and body with sticks, spear and hoe. The death of the deceased is conceded. It is no longer in doubt. Available evidence proves beyond reasonable doubt that the appellant was among those who attacked Safiya Nomau with these weapons by which fatal injuries were inflicted on her. She died in consequence of the attack and the injuries inflicted on her by the group the appellant belonged. I cannot see the doubt created as to whether the death was the act of the appellant. The mere fact that the appellant jointly participated in the attack on the deceased manifesting a common intention in the execution of the common object is enough to render him guilty of the offence jointty committed with the others.
Appellant’s counsel had also submitted that the failure of the prosecution to tender the extra-judicial statement of the appellant was fatal to their case. The duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt does not include their also proving his innocence or defence, by putting into their case the evidence that contradicts their case. See PAUL AMEH v. STATE (1978) 6 – 7 SC 27. The prosecution does not have the obligation to put forward two versions of one incident. See ONUBOGU v. THE STATE (supra); BOY MUKA v. THE STATE (supra); ALFRED ONYEMENA v. THE STATE (1974) ALL NLR 522.
Once the prosecution can prove their allegation beyond reasonable doubt with the witnesses they have screened and selected, they would have discharged the burden of proof cast on them by law. They owe neither the Court nor the accused the duty to call a host of witnesses, or a particular witness. I accordingly do not agree with the appellant’s counsel that the failure to call one sergeant Sani was fatal to the prosecution’s case. Clearly, repetition of a piece of evidence goes to surplusage. Though surplusage may be to emphasise a point; it is, however, not necessary for proof beyond reasonable doubt.
The appellant has not been able to establish that the lower Court erred or was wrong in the affirming, on the facts, the
conviction of the appellant for culpable homicide punishable under Section 221(b) of the Penal Code Law of Jigawa State. This appeal, in my view, lacks substance.
I hereby join my learned brother, OLUKAYODE ARIWOOLA, JSC, in the lead judgment just delivered in this appeal to dismiss the appeal and affirm the decision of the lower Court delivered on 8th December, 2013 in the appeal No. CA/K/142/C/2010.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, ARIWOOLA, JSC and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
The evidence before the trial Court did show clearly that Safiya Nomau died, The Appellant’s quarrel with the findings of the trial Court as confirmed by the lower Court is that the death of Safiya Nomau did not result from his act. This he sought to justify from what he said were conflicting pieces of evidence of PW2 and PW4. While PW2, an eye witness to the occurrence of the offence testified that he saw the Appellant in company of Sambo and Shabe Hassan kill the deceased with sticks and hoe, PW4 who was on his way to the farm and was not an eye witness, said he did not see the Appellant among the persons that killed the deceased, This is what PW4 said:
“The deceased on Saturday the lst of June, 1996 came to me and asked me to assist her erect a hut on her land. I was on my way to the farm to assist her as she requested. Before I reach the farm. l saw the accused except Haru (the Appellant) going towards the place where the deceased woman wanted to erect a hut. I then heard them saying kill her, kill her. I therefore retreated backward and watched. When they started beating the woman I hid myself, I heard someone, her neighbor saying shame, shame on yourselves all of you beating a woman or killing a woman……..” (underlining is mine)
The evidence of PW4 is self-explanatory. He was on his way to the farm when some of the accused who were also moving toward the farm passed him, and he heard them say kill her, kill her. His evidence did not foreclose movement to the farm through road other that the road on which he was moving towards the farm.
The contradiction complained about by the learned counsel for the Appellant is very insignificant. It is not any and every minor discrepancy or inaccuracy in the evidence of prosecution witnesses that amount to contradiction, especially where the witnesses are in substance saying the same thing. It is only material contradiction that is important. See The State vs Azeez & Ors 4 SC 188: Dibie & 2 Ors vs The State (2007) 3 SC (Pt. 1) 176.
There is overwhelming evidence that the Appellant along with his brothers killed the deceased because she dared enter into a parcel of land which was a subject of dispute between them and the deceased. There is no merit in this appeal. For these few words and the more elaborate reasons in the lead judgment, this appeal shall be and it is hereby dismissed.
Tajudeen O. Oladoja, Esq. with him, Muritala Abdulrasheed, Esq., Olalekan Thanni, Esq., Ahmed Gobir, Esq. and Barnabas John, Esq. – For Appellant
Saleh Umar, Esq. with him, S. G. Muhammad, Esq. – For Respondent