KASSIM v. THE STATE (2017)

In The Supreme Court of Nigeria

On Friday, the 30th day of June, 2017

SC.361/2015

Before Their Lordships

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN 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

ISA KASSIM  –Appellant

AND

THE STATE – Respondent

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EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The appellant was tried and convicted for culpable homicide punishable with death under Section 221 of the Penal Code Law of Kano State. Among the pieces of evidence on which the trial High Court of Kano State relied on to sustain his conviction and sentence are Exhibits 1, the Medical Report and Exhibits 2 & 3 respectively the appellants extra judicial statements which are confessional in nature. His conviction and sentence were affirmed by the Court of Appeal; hence this further appeal.For this appeal, the appellant through his counsel, Wilson O. Diriwari, Esq., formulated one issue for the determination of the appeal that is:-
“Whether the learned Justices of the Court below were right to place reliance on the inadmissible evidence to affirm the Appellant’s conviction and sentence, notwithstanding the failure by the Respondent to prove the guilt of the appellant beyond reasonable doubt with cogent, credible and compelling evidence?”
(Raised from ground 1, 2 & 3).
For convenience, the respondent’s counsel, Sanusi Salisu Ali, Esq., broke the single issue formulated by the appellant into two effective and active components, namely:
“i. Whether Exhibits 1, 2, & 3 are inadmissible in law for failing to satisfy the requirements and conditions for their admissibility evidence under the relevant provisions of the Evidence Act, 2011; and
ii. Whether respondent has proved the guilt of the Appellant beyond reasonable doubt with cogent, credible and compelling evidence required by law?”

I shall, and do hereby, adopt the two Issues formulated by the respondent.
Exhibits 2 & 3 are extra-judicial statements of the appellant made to the police in the course of their investigation of the alleged offence of culpable homicide. They are confessional. They formed part of the respondent’s case file. Exhibit 1 was the Medical Report issued from M. A. Wase Specialist Hospital Kano. It is dated 26th January, 2009. It also forms part of the case file built by the respondent in the course of the investigations to the alleged culpable homicide.
It is not in dispute that Exhibits 1, 2 & 3 are public documents within the meaning of public documents under Section 102 of the Evidence Act, 2011 that provides –
“102. The following documents are public documents –
a). documents forming the official acts or records of official acts of-
i. the sovereign authority,
ii. official bodies and tribunals, or
iii. public officers, legislative judicial and executive, whether of Nigeria or elsewhere; and
b). public records kept in Nigeria of private documents.”

Appellant’s counsel submits that because Exhibits 1, 2 & 3 are public documents, only their copies duly certified, are admissible in evidence by the operation of Sections 85, 86(1), 88, 89(1) (e) & (f), 90(1)(c), 102(a)(iii), 103, 104(1), (2) & (3) and 105 of the Evidence Act, 2011. In other words, that the originals of Exhibits 1, 2 & 3 tendered and admitted in evidence at the trial Court, being inadmissible, were wrongly admitted in evidence. The learned counsel submits, with emphasis on Sections 88, 89(1)(e) & (f), 90(1)(c), 102(a)(iii), 104(1), (2) & (3) and (105) of the said Evidence Act, that it is only the certified secondary evidence of public documents that are admissible in evidence and that the originals of Exhibits 1, 2 & 3, being public documents, were wrongly admitted in evidence and acted upon. For these submissions, learned counsel relied on ARAKA v. EGBUE (2003) 17 NWLR (pt. 848) 1 at 18 per Niki Tobi, JSC; CHIEF J.A. AJAO v. AMBROSE FAMILY & ORS. (1969) 1 NMLR 24 at 34; ANATOGU v. IWEKA II (1995) 8 NWLR (pt.415) 547 At 571 – 572 per Uwais, JSC, (as he then was); YERO v. UBN LTD. (2000) 5 NWLR (pt. 657) 670 at 678 – 679; LAWSON v. AFANI CONT. CO. LTD. (2002) 2 NWLR (pt.752) 583 at 613 – 615; TABIK INVESTMENT LTD. v. GTB PLC (2011) 17 NWLR (pt.1276) 240 at 261 – 262.
Learned counsel for the appellant further submits that since the Provisions of Sections 88, 89(1)(e) & (f), 90(1)(c), 102(a)(iii), 103 and 104 (1), (2) & (3) and 105 of the Evidence Act, 2011 are in pari materia with Sections 96, 97 (1)(e) & (f), 2(I), 109, 110 and 111 of the Evidence Act Cap 112 of the 1990 LFN, the interpretations given to them by this Court and the Court of Appeal in the previous decisions should be the governing interpretation to these similar provisions in the extant Evidence Act, 2011. Counsel cited AG, ABIA STATE v. A.G. FEDERATION (2005) 12 NWLR (pt.940) 452 at 506 to

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buttress this point.
The Supreme Court had earlier in A.G. ONDO STATE v. A.G. EKITI STATE (2001) 17 NWLR (pt.743) 706 interpreted Section 7(1) of Decree No. 41 of 1991. Section 7(1) of Decree No. 36 of 1996 is in pari materia with Section 7(1) of Decree No. 47 of 1991. When this Court was called upon to interpret the Provisions of Section 7(1) of Decree No. 36 of 1996 it adopted the interpretation it had earlier given to Section 7(1) of Decree No. 41 of 1991. This, it did on the principle –
“that where the Provisions of a statute or a Section of a statute are in pari materia, light may be thrown on the meaning of such a provision or statute which is in pari materia by referring to a previous decision of a competent Court where similar provisions had been previously considered.”
I agree. The principle is correct and it is in tandem with the principle of stare decis which is a rule of adherence to judicial precedents. It postulates that when a point or principle of law has been officially decided or settled by a ruling or pronouncement of a competent Court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the tribunal, or by those who are bound to follow its adjudications, unless there be urgent reasons and in exceptional cases. Critics of this principle argue that strict adherence to old decisions may result in grave injustices in the ever changing social and political situations. The need to do substantial justice in every case to the Court, the accused person, the victim of crime and the general public seems to favour the stance that where strict or dogmatic adherence to precedent is mere arcane technicality that defeats justice, pragmatism demands a balance between the extremities. Our jurisprudence is shifting from adhering to mere technicality designed to defeat the course of justice. Thus as stated by Wali, JSC, in SHUAIBU v. NIGERIA-ARAB BANK LTD. (1998) 4 SC 170; (1998) 5 NWLR (pt.551) 582; “the prime duty of any Court in taking any decision is to do justice. The wheel of justice could no longer be allowed to be clogged with technicalities.”
I will come anon to the interpretation of these provisions of the Evidence Act, 2011. Before then, suffice that I mention that the Courts are not unanimous on whether; where original copy of a document forming part of public record is available, the secondary evidence of it, as opposed to the original and primary evidence of it, is the only legal evidence admissible in evidence and it is illegal to prove its contents by the production of the original copy. Galadima, JCA (as he then was), for instance had, in CHIEF SUNDAY N. A. (SUING BY HIS ATTORNEY, MR. SOLOMON IWEBUZOR) v. DELTA FREEZE NIG. LTD. & ORS. (2010) LPELR – 9114(CA), queried the prudence of insisting on the certified true copy of a public document when the original is available as the primary evidence of the contents. His Lordship states –
“that I should hold that Exhibit B being primary evidence under Section 94 is admissible without the need for certification by virtue of Sections 93 and 96 of the Evidence Act. With due respect to the learned trial Judge he was in error in holding that Exhibit B ought to have been certified. It does not require to be certified to render it admissible in evidence. In the case of EBU v. OBUN (2004) 14 NWLR (pt. 892) 76 at 88, learned counsel for the Respondent submitted that originals of public documents ought to be certified to make them admissible. In response this argument (it was) held per Opene, JCA thus: “I do not know how the learned counsel come about this argument? When a document is certified, it is certified to be a true copy of the original. If then the original is to be certified, what will it be certified to be a true copy of itself (original)?” –
Clearly, in view of this decision, I hold that Exhibit B was wrongly rejected and ought to have been considered by the learned trial judge in his judgment instead of treating it as if it had never been admitted.”

In the REGISTERED TRUSTEES OF THE PORT HARCOURT CHRISTIAN COUNCIL PROJECT v. MR. SUNDAY G. O. AMADI & ORS. (2010) LPELR – 9119 (CA) (a decision Galadima, JCA (as he then was) and myself were privies), it was held per Thomas, JCA, that since documents must be proved either by producing either the original or, in its absence, the secondary evidence of it, the proof of the contents of the document by the production of the original copy should not be the basis for rejecting in evidence the original. The decision was anchored on the Supreme Court decision in OKEKE v. ATTORNEY-GENERAL OF ANAMBRA STATE (1993) 1 NWLR (pt. 215) 60 at 80 in which it was held that documents are in the first place proved by primary evidence, which is by the production of the original copy for inspection by the Court. Proof of the contents of a document by production of the contents of a document by secondary evidence of the document, that is by production of a duly certified true copy of the original, is merely an alternative to the production of the original that is the primary

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evidence. On this, Coker, JSC, in AJAO v. AMBROSE FAMILY & ORS. (1969) 1 NMLR 25seems to agree on the settled primary principle that all documents, prima facie, must be proved by primary evidence.
The respondent’s counsel has aligned himself with the view that it is not illegal to produce the original of a public document for the inspection of the Court as the primary evidence of its contents, and that Exhibits 1, 2 & 3 are not inadmissible in evidence. He relies on the very provisions of the Evidence Act, 2011 appellant’s counsel relies on to submit that Exhibits 1, 2 & 3, being originals of public documents are inadmissible in evidence.
We need to examine Sections 83, 85, 86(1), 87, 88, 89, & 90(1)(c) of the Evidence Act, 2011. The salient provisions of these Sections are herein below reproduced as follows –
“83(1). In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact –
85. The contents of documents may be proved either by primary or secondary evidence.
86. (1) Primary evidence means the document itself produced for the inspection of the Court.
87. Secondary evidence may be given of the existence, condition or contents of a document when –
(a) the original is shown or appears to be in possession or power –
(i) of the person against whom the document is sought to be proved; or
(ii) or any person to legally bound to produce it and when after the notice to produce mentioned in Section 91such person does not produce it;
(b) the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in 
interest;
(c) the original has been destroyed or lost and in the latter case all possible search has been made for it;
(d) the original is of such a nature as not to be easily movable.
(e) the original is a public document within the meaning of Section 102;
(f) the original is a document of which a certified copy is permitted by this Act or by any other Law in force in Nigeria, to be given in evidence:
(g) the originals of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection; or
(h) the document is an entry in a banker’s book.
90(1) The secondary evidence admissible in respect of the original document referred to in the several paragraphs of Section 89 is as follows –
(c) In paragraph (e) or (f), a certified copy of the document, but no other secondary evidence, is admissible.
102. The following documents are public documents –
(a) documents forming the official acts or records of official acts or –
(i) the sovereign authority;
(ii) official bodies and tribunals; or
(iii) public officers, 
legislative judicial and executive, whether of Nigeria or elsewhere:
104.(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.”

The learned counsel for the appellant did not, in his submission, address the significance of Section 83(1) of the Evidence Act, 2011 to the effect that in any proceeding where direct oral evidence of a fact would be admissible, any statement by a person in a document which seems to establish the fact shall, on production of the original, be admissible as evidence if the maker of the statement has personal knowledge of the matters dealt with in the statement or if the maker made the statement, in a matter he has personal knowledge of, in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of these matters. And if the maker of the statement is called as a witness in the proceeding.
Section 85 of the Evidence Act, couched in general terms, provides that the contents of documents may be proved by either primary or by secondary evidence. Section 86(1) of the Act defines the primary evidence as the document itself produced for the inspection by the Court. That is the original itself produced for the inspection by the Court. Section 88 of the same Act directs that documents shall be proved by primary evidence except in the cases mentioned in the Act,

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such cases being rather in alternative. The word “except” after the imperative phrase “documents shall be proved by primary evidence” can only mean “unless”.
Section 89 of Evidence Act lists the circumstances that are exceptions to the imperatives of Section 88 and 85 of the Act read together. I do not think it is illegal, in view of Sections 83, 85 and 88 of the Evidence Act, for the contents of a public document to be proved by the production of the original copy of the document, in its primary state, for the inspection of the Court. Now, the Question: what prejudice or miscarriage of justice has the appellant herein suffered by the production of the originals of Exhibits 1, 2 & 3 for the inspection of the Court? I see none, and I have not shown any. The Courts these days, I earlier stated, are moving away from arcane technicalities towards doing substantial justice.
Having said all these, before conclusion, let me attempt restating the circumstances some of the cases cited by the appellant were decided. In AJAO v. AMBROSE FAMILY (supra) the Supreme Court was faced with admissibility of a photocopy of a public document, which was not duly certified as required by Section 104 of the Evidence Act. It is on this basis that this Court held that the only secondary evidence of a public document permissible under the Evidence Act is a duly certified true copy of the public document. This thus cannot be an authority for the preposition that the original copy of a public document is inadmissible in evidence and that only a certified true copy of a public document is admissible in evidence.
The case of ANATOGU v. IWEKA II (supra) is not on all fours with the instant case. In that case, as the statement of Uwais, JSC, (as he then was) at pages 571-572 of the Report would reveal the appellants did not follow the procedure of getting the certified true copy of the register. Rather, as his Lordship put it:
“they called for the public registers in their original form to be produced.”
His Lordship, in the decision, harped on the procedure under Sections 110 and 111 of the Evidence Act, 1990. The only provisions of Section 104 of the 1990 Evidence Act, 2011 in pari materia with the provisions of Section 110 of the Evidence Act, 1990 are the provisions of Section 104(1) & (3). Section 111 of the repealed Evidence Act, 1990 and Section 105 of the Evidence Act, 2011, though in substance similar, are not in pari materia.
ARAKA v. EGBUE (supra) was cited out of context by the appellant. In that case, the witness subpoenaed to produce and tender the original letter addressed to the Governor of Enugu State tendered an uncertified photocopy of the letter after stating that the original of the letter could not be found. It is in this context and circumstance that Niki Tobi, JSC, stated.
“In MINISTER OF LANDS WESTERN V. DR. AZIKIWE (1969) 1 ALL NLR 49, Coker, JSC, said at page 59:
“we have already pointed out that the original of the document Exhibit 2 
is a public document and indeed it is so within the meaning of Section 108 of the Evidence Act. Section 96(2) of the Evidence Act prescribes the type of secondary evidence which may be given in respect of the several cases therein set out and Section 96(2) (c) provides as follows — 96(2) the secondary evidence admissible in respect of the original document referred to in the several paragraphs of Subsection (1) is as follows: (d) in paragraph (e) and (f) certified copy of the document, but no other kind of secondary evidence is admissible. — The combined effect of the subsections is that in the case of public documents the only type of secondary evidence permissible is a certified true copy of the document and none other. The document now marked Exhibit 2 is not a certified true copy but a photostat copy and it is therefore inadmissible as secondary evidence of a public document which it purports to be.”
Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with Adekeye, JSC, in GODWILL & TRUST INVESTMENT LIMITED v. WITT & BUSH LIMITED (2011) 8 NWLR 500; (2011) LPELR – 1333 (SC), the essence of demanding for a certified true copy of a public document is the assurance of the authenticity of the document vis-a-vis the original. And so why go for that assurance in the certified true copy vis-a-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the Court below that where the original copy of a document is available, it is admissible without the requirement of certification. See DAGGASH v. BULAMA (2004) 14 NWLR (pt. 892) 144.
The appellant having not established the injustice he would suffer by the admissibility of the originals of Exhibits 1, 2

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& 3, I do not think he is on firm grounds in his complaint that the Court below was wrong in placing reliance on Exhibit 1, 2 & 3. They are not inadmissible evidence on which the Court below relied on to affirm the appellant’s conviction and sentence. Accordingly, I resolve this issue against the appellant.
On whether the guilt of the appellant was proved to warrant his conviction, it is the contention of the appellant’s counsel that his guilt for the offence of culpable homicide punishable with death was not proved beyond reasonable doubt; that evidence which proves the guilt of an accused person for a criminal offence is such compelling, credible and cogent evidence that proves each ingredient of the offence charged beyond reasonable doubt. TOBBY v. THE STATE (2001) 10 NWLR (pt.720) 23 is cited for this. Counsel further submits that it is not the duty of the accused to prove his innocence and that the onus of proving the guilt of the accused is on the prosecution. The cases of THE STATE v. AZEEZ (2008) 14 NWLR (pt.1108) 439 and ALAMU v. THE STATE (2009) 10 NWLR (pt.1148) 31 at 46 are cited for these prepositions.
The learned counsel for the appellant urges that no weight and probative value should be attached to Exhibit 1, 2 & 3, that were wrongfully admitted in evidence, the documents being inadmissible anyway, and that the testimonies of PW.1, PW.2, PW.3 and PW.4 do not avail the Courts for the conviction and sentence of the appellant. He urges that the order of discharge and acquittal which the appellant deserved be entered for him.
Relying onALAKE v. THE STATE (1991) 7 NWLR (pt. 2003) (sic) learned counsel for the respondent submits that there is nothing sacrosanct about proof beyond reasonable doubt. I am sure the citation for ALAKE v. THE STATEgiven above by the learned counsel is misleading and wrong. It is a reprehensible thing for any counsel to do before any Court of law. It is unethically irresponsible and very reckless for a counsel to cite a case as an authority which citation cannot lead to the location of the authority. It appears the case counsel is referring to is ALAKE v. THE STATE (1991) 7 NWLR (pt.205) 567 where at page 591 of the Report Niki Tobi, JCA, (as he then was) stated:
“I think the adjective “reasonable” qualifying the noun “doubt”, should not give rise to that very wide statement. I think the position should be this. Once the ingredients of the particular offence the accused person is charged with are proved, that constitutes proof beyond reasonable doubt.”
The Supreme Court in JU’AN v. THE STATE (2010) 2 MJSC 155 and EKE v. THE STATE (2011) LPELR – 1133 (SC) endorsed this preposition of the law on what amounts to proof beyond reasonable doubt. It is not proof beyond all iota of doubt or a proof to the hilt. See AKALEZI v. THE STATE (1993) 2 NWLR (pt.273) 1 at 13. Thus as stated in ALABI v. THE STATE (1993) 7 NWLR (pt. 307) 511 at 523; once all the ingredients of the offence charged have been satisfactorily proved by the prosecution, the charge is proved beyond reasonable doubt.
As rightly stated by the Court below; the trial Court, at page 4 of the Record, identified three (3) ingredients which must be proved by the respondent to sustain conviction for the offence punishable under Section 221 of the Penal Code. That is:
“1. That there was death of a person;
2. That the death was a result of the act of the accused; and
3. That the act was done with the intention of causing death or intention of causing such injury that death would be the probable result.”
See A. UBANI v. THE STATE (2003) 16 NSCQR 265; IGALO v. THE STATE (1999) 14 NWLR (pt. 637) 1; EDOHO & ANOR. v. THE STATE (2010) 14 NWLR (pt.1214) 651; OGBU & ANOR. v. THE STATE (2007) 4 SCM 169; (2007) 3 SC (pt. ii) 273; STATE v. DANJUMA (1997) 5 NWLR (pt.506) 512.
The deceased was one Akaraja. There is no dispute about his identity. The appellant, testifying as DW.1, averred that he had a scuffle with the deceased on 15th January, 2009. Part of his evidence-in-Chief runs, thus:
“Akaraja insisted that he must enter the house and fetch water. I prevented him (Akaraja) from entering the house and I hit him with a cable twice and he snatched the cable from me and also hit me twice. He then held my gown by the neck and I pleaded with him to leave me alone but he refused. There was nobody at the scene to separate us. When I tried

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to free myself from Akaraja but failed, I remembered I had a knife with me. I brought out the knife and showed it to Akaraja warning him to leave me alone. When Akaraja refused to release me, I stabbed him with the knife once at his back. Akaraja release me and sat down.”
The appellant maintained this stance in Exhibits 2 & 3. He never lost his senses throughout, according to his evidence under cross-examination. That eliminates provocation and establishes that he knew what he was doing.
I notice also that both the deceased and the appellant were watchmen at Alhaji Yahaya’s house. The portion of evidence I reproduced earlier suggests that the appellant was the aggressor. He was preventing the deceased from entering the house to fetch water. He hit the deceased twice with the cable. The deceased seized the cable from him and hit him twice with it. The appellant further testified that the deceased, then held his “gown by the neck”. He pleaded with the deceased to leave him, and the deceased failed to release him, he showed him the knife he had and thereafter stabbed the deceased at the back. It is difficult for me to make out a plea of self-defence out of this evidence. There was no immediate threat or danger to his life to warrant his resort to the knife and the stabbing.
There was no eye witness, except the PW.1, the stabbing having taken place before some of the other people came into the scene. The PW.2, Alhaji Yahaya’s driver, was on hand immediately. The deceased was rushed to Abdullahi Wase Hospital, Nassarawa, where he was confirmed dead. Exhibit 1 confirmed the stab wound as “an open laceration 4cm x 2cm”, and that it caused “(Rt) haemotherax in px with hypovolemic shock following a penetrating stab wound on the back (T5 level)”. Exhibit 1 further affirms that the condition of the deceased “deteriorated suddenly” despite “cardio pulmonary resuscitation” instituted by four (4) doctors, and all efforts at resuscitating the deceased “all proved abortive” and the deceased died at 6.30 p.m. that same day.
The PW.1 did not know what caused the scuffle between the appellant and the deceased. He only saw the appellant stab the deceased “around the deceased’s shoulders at his back”. The description of the position of the stab wound is consistent with the description in Exhibit 1 and the evidence of the DW.1, the appellant. From the chain of events, and it was rapid too, the deceased died as a result of the stab wound on the shoulder area at the back. The deceased was stabbed at about 4.30 pm. on 15th January, 2009 according to PW.1 and PW.2. The deceased was rushed to the hospital immediately. He died at about 6.30p.m that day, just about 2 hours after the attack by the deceased. Even without medical expert evidence it can be inferred that the cause of death of the deceased was the direct result of the unlawful act of the appellant that is the stabbing of the deceased by the appellant. No other reasonable cause has been suggested to be the cause of death of the deceased. There was no intervening period within the short time between the stabbing and the death of the deceased that was just about two hours in between. I have no difficulty inferring that the act of the appellant caused the death of the deceased. This inference is reasonable as can be seen from BAKORI v. THE STATE (1980) 8 – 11 SC 81; REX v. NWOKOCHA 12 WACA 453.
From the foregoing it is not in dispute that one Akaraja, a watchman in the house of Alhaji Yahaya, was on 15th January, 2009 stabbed at the back on the shoulder region at about 4.30pm, and he died at about 6.30pm. the same day. I have no doubt that the death of Akaraja has been established. It has also been established that his death was caused by the appellant.
That act of the appellant of stabbing Akaraja at the back on the shoulder region alone was what caused the death of Akaraja.
The duty of every appellant is to show and or establish that the decision he has appealed was wrong or unreasonable. Every decision of a Court of law, a judicial act, done in a manner substantially regular is presumed to be correct and that formal requisites for its validity were complied with. The presumption of regularity under Section 167(1) of the Evidence Act, 2011is all about this.
At page 47 of the Record the trial Court made a finding of fact that was affirmed on appeal by the Court below. The learned trial Judge found thus –
“By stabbing the deceased at the back with a knife, in the circumstance of this case, it could be safely inferred that the accused did the same with the intention of causing the death of the deceased or with the intention of causing such bodily

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injury on the deceased with knowledge that death would be the probable and not only the likely consequence of his act, or with knowledge that death (the) death of the deceased would be the probable not only the likely consequence of any bodily injury which the act was intended to cause.”
This finding of fact was affirmed by the Court below. In this further appeal, the appellant, through his counsel made no effort, albeit feeble, to dislodge or displace the concurrent finding of fact. Unless the appellant establishes, and convinces this Court, that the concurrent findings of fact by the two Courts below were perverse, this Court will not readily intervene to disturb such concurrent findings of fact. See BASHAYA & ORS. v. THE STATE (1998) 4 SC 199; (1998) 5 NWLR (pt.550) 351; OGBU v. THE STATE (1992) 10 SCN 88; (1992) NWLR (pt. 259) 255. The principle is so trite and as such a settled principle in our appellate Court jurisprudence or practice that counsel planning or conceiving an appeal should be very conscious of. Alas, it completely eluded the appellant in the instant case.
Coming as I do to this conclusion it is my view that in this appeal it cannot be said that the guilt of the appellant was not proved beyond reasonable doubt. Each ingredient of the offence charged under Section 221(b) of the Penal Code Law of Kano State has been established satisfactorily. I cannot fault the concurrent findings of fact.
There is no substance in this appeal. The appeal is accordingly dismissed. The conviction and sentence of the appellant by the trial Court in the charge No. K/19c/2012, which conviction and sentence were affirmed by the Court of Appeal in its judgment delivered in the appeal No. CA/K/162/2012 on 20th March, 2015 are further affirmed. Appeal dismissed.
CLARA BATA OGUNBIYI, J.S.C.: The appellant in a one count charge dated 15th February, 2012, was alleged to have committed an offence of culpable homicide punishable with death under Section 221(b) of the Penal Code (Cap 105) Laws of Kano State 1991. The charge against him (appellant) was that on or about 15/1/2009 at about 1600 hrs at Hotoro quarters, Kano he stabbed one Akaraja Musbahu with a knife in his back till he died, with the knowledge that death would be the probable consequence of his act.
The appellant pleaded not guilty to the charge whereupon the prosecution called four witnesses as PW1 – PW4 and the appellant gave evidence in defence of the charge without calling any additional witness.
In a considered judgment of the High Court of Kano State delivered by Hon. Justice Wada Abubakar Omar on 19th November 2013, the appellant was found guilty of the offence as charged, convicted and sentenced to death by hanging. The learned trial judge however took cognizance of the age of the appellant among other circumstances and recommended him for prerogative of mercy by the Governor of Kano State.
The appellant was dissatisfied with the aforesaid judgment and he lodged an appeal against same to the Court below. In their judgment delivered on 20th day of March, 2015, the learned justices of the Court below affirmed the judgment of the trial Court. Hence the further appeal now before this Court via notice of appeal and raising three (3) grounds filed on 20th April, 2015, lodged against the judgment of the Court below. The lone issue raised for determination reads:-
Whether the learned justices of the Court below were right to place reliance on inadmissible evidence to affirm Appellant’s conviction and sentence, notwithstanding the failure by the Respondent to prove the guilt of the appellant beyond reasonable doubt with cogent, credible and compelling evidence. Raised from grounds 1, 2 and 3. 
It is submitted by the appellant’s counsel that the Respondent failed to adduce sufficient evidence to establish the alleged offence and to warrant the conviction of the appellant. Counsel submitted further that exhibit 1, being medical report from government hospital and exhibits 2 and 3, the documents from Nigeria Police are Public in nature within Sections 102, 104 and 105 of Evidence Act 2011 for the purpose of being used in Court. Counsel was emphatic that being public documents contemplated under Section 102 (a) (iii) of the Evidence Act, 2011 the exhibits are admissible

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as secondary evidence and therefore only certified true copies thereof are admissible by virtue of Sections 104 (1) – (3) and 105 of the Evidence Act, 2011.
Contrary to the argument by the learned counsel for the appellant on the inadmissibility of exhibits 1, 2 and 3, the respondent’s counsel argued that those documents are not public documents under Section 102 (a) (b) of the Evidence Act 2011. The learned counsel for the respondent urges this Court to hold that Exhibits 1, 2 and 3 are admissible documents and which were rightly admitted; that there is no provision in the Evidence Act which specifically provides for the certification of original public document before it can be admitted.
The appellant’s counsel is very adamant in his argument on the admissibility of exhibits 1, 2 and 3, that is, the medical Report and the two statements made by the appellant, to the police which, as correctly stated by the respondent’s counsel, were original documents admitted without objection from the appellant or the learned counsel who appeared for him. The implication in the circumstance is obvious wherein they have consented to the admissibility of the documents.
The law is clear that an objection to the admissibility of a document is taken when it is sought to be tendered. See the persuasive decision of the case of Hon. Godwin Udo King v. INEC & Ors (2008) LPELR 4403. Also persuasive is the case of Arinze v. First Bank (Nig.) Ltd. (2000) 1 NWLR (Pt.639) 78, where it was held that:
“In any case, the law is that where a document is not in admissible perse but its admissibility is subject to the conditions that had not been fulfilled when it was tendered, its admission in evidence without objection constitutes a waiver of the unfulfilled condition. See Okeke v. Obidife (1965) 1 All NLR 50, 53 – 5; Anyaebosi v. R. T. Brisco (Nigeria) Ltd. (1987) 3 NWLP. (Pt. 59) 84: (1987) 6 SCNJ 9, 32 – 33: Oguma Associated Companies (Nigeria) Ltd v. International Bank for West Africa Ltd (1988) 1 NWLR (pt.73) 658: (1988) 3 SCNJ (Pt. 1) 13, 22 – 23 and Attorney General of Oyo State v. Fair Lakes Hotel Ltd. (1989) 5 NWLR (Pt. 121). 255: (1989) 12 SCNJ 11.”
By the combined effect of Sections 86, 87, 88, 89, 90, 102 and 103 of the Evidence Act, 2011, documents (Public or Private) may be produced in Court by tendering either the original of the document itself or the copy thereof known as secondary evidence: but a party relying on secondary evidence of a public document must produce the certified true copy and no other copy thereof is admissible. See Kwara State Ministry of Agriculture and Water Resources & Ors. v. Societe Generale Bank Nig. Ltd. (1998) 11 NWLR (Pt. 575) 574: Daggash v. Bulama(2004) 14 NWLR (Pt.892) 144; P.D.P. V. INEC (2014) 17 NWLR (PT. 1437) 525.
As rightly held by the two lower Courts, I am of the firm view also that exhibits 1, 2 and 3 are admissible documents and they were rightly so admitted. Therefore, there is no basis for their rejection also by this Court.
On the further argument by the learned counsel for the appellant on the absence of proof against his client, it is settled law that for the prosecution to secure conviction, it must prove beyond reasonable doubt, the alleged offence, against the appellant.
See Alabi v. State (1993) 7 NWLR (Pt. 307) 511. Proof beyond reasonable doubt does not mean proof to the wilt or proof beyond all shadow of doubt. See Miller v. Minister of Pensions (1947) 3 All NLR 373 and Agbo v. State (2006) 6 NWLR (Pt. 977) 545.
It is pertinent to state that the evidence on record reveals that following the stabbing of the deceased by the appellant, he (the deceased) died at the hospital shortly after admission and even before the prescribed drugs could be administered. There was therefore hardly any intervening act. In such circumstance a postmortem or medical report is not an absolute requirement or necessity, though it may be desirable.
See Bakare v. The State (1986) NSCC 772.
On the totality of the evidence contained in the record and in addition to exhibit 1, 2 and 3 the trial Court further considered and relied on the oral evidence of the PW1, who was an eye witness to the act of stabbing the deceased with a knife by the appellant. The PW2 who also conveyed the deceased to the hospital did confirm that the deceased died shortly after arriving. There was also the confession made by the appellant to the act of stabbing

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which he attested to in his oral testimony. While the prosecution did prove all the ingredients of the offence, there is nowhere that the appellant brought himself within any of the exceptions or defences under the law. See Oteki v. Attorney-General Bendel State (1986) 2 NWLR (Pt. 24) 648. See also Udosen v. The State (2007) 4 NWLR (Pt. 1023) 125. The State v. Azeez & Ors (2008) 4 SC. 188: 1, Igabele v. State (2006) 6 NWLR (Pt. 975) 100: Jua v. State (2010) 4 NWLR (Pt. 1184) 217 and Okoro v. The State (1988) 12 SC (Pt. 11) 88.
The lower Court, I hold could not be faulted when it affirmed the judgment by the trial Court, who in my view rightly convicted and sentenced the appellant accordingly. I also endorse the said judgment.
My learned brother Ejembi, Eko JSC has done justice to the appeal and I adopt his reasoning and conclusion as mine.
With the few words of mine therefore and while relying on the comprehensive lead judgment of my brother, I hereby also dismiss this appeal as lacking in merit.
The conviction and sentence of the appellant by the two lower Courts are affirmed by me also.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother, EJEMBI EKO, JSC just delivered. The reasoning and conclusion are in tandem with my views in this appeal. I am in full agreement with my learned brother that the appeal lacks merit and deserves to be dismissed.
A careful perusal of the appellant’s brief in this appeal reveals that learned counsel relies substantially on the success of his argument in relation to the admissibility of Exhibits 1, 2 and 3. Indeed paragraphs 4.1 – 4.14 at pages 5 – 16 of the brief are devoted to this. The arguments in paragraphs 4.15 – 4.24 at pages 16 to 20 of the brief are essentially to the effect that the appellant was convicted based on his own admission that he committed the offence. It is argued that by virtue of Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, the appellant is entitled to the benefit of the presumption of innocence guaranteed thereunder. It is further contended that even where an accused person pleads guilty to the charge (not in this case) the prosecution still has the burden of proving its case beyond reasonable doubt.
With regard to the admissibility of Exhibits 1, 2 & 3 and the contention of learned counsel for the appellant that only certified true copies of public documents are admissible in evidence and therefore the original documents tendered in this case are inadmissible. I adopt as mine, the exhaustive analysis of the relevant provisions of the Evidence Act, 2011 carried out by my learned brother, Ejembi Eko, JSC in the lead judgment. In addition, I refer to a similar exercise carried out by me in the recent case of Uwua Udo V. The State (2016) 2-3 SC (Pt. III) 29 @ 47 – 54wherein I held that a public document tendered in its original form is admissible in evidence by virtue of Sections 85 and 86(1) of the Evidence Act, 2011. I therefore hold that Exhibits 1, 2, & 3 were properly admitted in evidence in this case. The contention that the appellant was convicted because he admitted stabbing the deceased is misconceived.
In a charge of culpable homicide punishable with death under Section 221(b) of the Penal Code, Cap. 105, Laws of Kano State 1991, the prosecution has the onus of establishing the following facts beyond reasonable doubt:
1. That the deceased died.
2. That his death was caused by the accused.
3. That the act of the accused which caused the death was intentional having the knowledge that death or grievous bodily harm was the probable consequence of the act.
See: The State V. Danjuma (1997) 5 NWLR (Pt.506) 512; Ochemaje V. The State (2008) 15 NWLR (Pt. 1109) 57; Ochiba V. The State (2011) 17 NWLR (pt. 1277) 663.
In proof of the prosecution’s case, there was the eye witness account of PW1, who witnessed the quarrel between the appellant and the deceased and tried to intervene to no avail. He testified that he saw the appellant stab the deceased with a knife around the shoulders at his back. His evidence was not discredited under cross-examination. PW2 arrived on the scene after the stabbing but assisted in conveying the deceased to the hospital where he eventually died.
Exhibit 1, the medical report established the fact that the deceased had a penetrating stab wound on his back (T5 level) and that he eventually died of his injuries. Exhibits 2 & 3 are confessional statements wherein the appellant admitted

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stabbing the deceased twice with a knife. It is pertinent to note that all the exhibits were admitted in evidence without objection. The trial Court found PW1, the eye witness to be a credible witness.
In his defence, the appellant admitted stabbing the deceased. Under cross-examination he said he knew that a person stabbed in the neck, chest or abdomen near the navel may die. At the conclusion of the hearing, learned counsel for the appellant had nothing to urge on the Court.
I am of the view and I do hold that the finding of the trial Court affirmed by the Court below that all the ingredients of culpable homicide punishable with death were established by the prosecution beyond reasonable doubt, cannot be faulted. The learned trial Judge did not base the appellant’s conviction solely on his admission (which he was entitled to do) but considered the totality of the evidence before the Court.
Neither the defence of provocation nor self defence availed the appellant in the circumstances of this case. The evidence before the Court established the fact that it was the appellant who started the fight by hitting the deceased with a cable. There was no evidence that the deceased was armed or that the appellant feared for his life. It was also the appellant who produced the knife with which he stabbed the deceased.
As for the defence of provocation, one of the main elements of the defence is that the accused person acted on the spur of the moment in the heat of passion and before his passion had time to cool. In other words that he temporarily lost his reason as a result of extreme provocation either verbal, physical or by conduct from the deceased. See: Akalezi V. The State (1993) 2 NWLR (Pt. 273) 1: Stephen V. The State (1986) 5 NWLR (Pt. 46) 978; Oladiran Vs The State (1986) 1 NWLR (Pt.14) 75.
Under cross-examination, the appellant stated categorically that he did not lose his senses during the fight. This admission forecloses the defence of provocation. The appellant was therefore rightly convicted by the trial Court and the conviction and sentence rightly upheld by the Court below. I find the concurrent findings of the two Courts beyond reproach. The appellant has failed to adduce any exceptional circumstance to warrant interference by this Court.
It is for these and the more comprehensive reasons ably advanced in the lead judgment that I find no merit in this appeal. It is accordingly dismissed. The judgment of the lower Court is affirmed.
Appeal dismissed.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my learned brother EKO JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. The facts of this case are clearly set out in the lead judgment. It is therefore unnecessary to reproduce them in this judgment. From the evidence available before the trial Court it is very clear that the death of Akaraja Musbahu had occurred and that it was the Appellant who killed him by stabbing him on the back with a knife on the 15th January, 2009. I agree with the Court of Appeal when it accepted the finding of the trial Court that by stabbing the deceased at the back with a knife, the Appellant either intended to cause the death of the deceased or he had the intention of causing such bodily injury with the knowledge that death would be the probable and not only a likely consequence of his act. I find no mitigating factor or any defence that would avail the appellant in the circumstance of this case. The trial Court and the Court of Appeal have in my view done justice to this case and it is not in the character of this Court to disturb the concurrent findings of the two lower Courts.
With these few words and the more detailed reasoning in the lead judgment this appeal shall be and it is hereby dismissed for lack of merit
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Ejembi Eko, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything
useful to add. The appeal lacks merit, and it is accordingly dismissed by me. I abide by all the orders contained in the lead Judgment.

Appearances

Wilson D. Diriwari, Esq. For Appellant

AND

D. I. Oladumoye, Esq. For Respondent

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