CORAM

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE OF THE SUPREME COURT OF NIGERIA

UWANI MUSA ABBA AJI JUSTICE OF THE SUPREME COURT OF NIGERIA

HELEN MORONKEJI OGUNWUMIJU JUSTICE OF THE SUPREME COURT OF NIGERIA

TIJIANI ABUBAKAR JUSTICE OF THE SUPREME COURT OF NIGERIAUBA

EMMANUEL AKOMAYE AGIM JUSTICE OF THE SUPREME COURT OF NIGERIA

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PARTIES

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ABUBAKAR ABDULLAHI

 

APPELLANTS 

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THE STATE

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The appellant and PW1 were friends and the appellant impregnated PW1 who gave birth to a child named Abdullahi. The appellant agreed to pay 5000 Naira monthly for the maintenance of his said child by PW1 but defaulted to pay the monthly maintenance amount for two months.

PW1 on 13-06-2017 called the appellant by phone to inform him that their son had fallen sick and requested him to come and see her and, upon arriving, he gave PW1 2000 Naira to take the child to the hospital. PW2, the brother of PW1 arrived the scene and expressed his dissatisfaction with the appellant’s lack of care for his child by his sister and ordered the sister, PW1, to handover the custody of the child to the appellant to take over full custody and care of his child which PW1 reluctantly obeyed but proceeded to report the nw development to her mother in tears. When her mother and a neighbor, PW3 ran out of the house to retrieve the baby from the appellant, they realized the Appellant had left and proceeded to the appellant’s family house but he wasn’t there and neither was the baby. While they were waiting for the appellant, he came in with his son in his arms about an hour later, opened his door, entered his room, and locked the door after refusing PW1's plea to give her the child. He remained locked in the room with the child for some hours and when he finally opened the door of his room, the women rushed into the room and found the child lifeless with the mouth open and the tongue hanging out. PW3 carried the child and observed that he was lifeless.

​ The Appellant was arraigned on the 19th of October, 2017 before the trial Court on a one Count charge of Culpable Homicide punishable with death under Section 221(b) of the Penal Code Law, Cap. 102, Laws of Borno State, 1994 for causing the death of his ’10’ months old baby one Abdullahi who was born out of wedlock with PW1. The Prosecution called a total of seven (7) witnesses and tendered two Exhibits ST1 and ST2, while the Defendant (Appellant in this Court) testified in his defence and did not call any witness or tender any exhibit.

The trial court found him guilty of culpable homicide punishable with death and sentenced him to death. The Court of Appeal reaffirmed the decision of the trial court but still dissatisfied, the Appellant filed the instant appeal

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether having regards to the evidence led at the trial, the Court of Appeal was right in affirming the decision of the trial Court that the charge of culpable homicide punishable with death was proved against the appellant?

 

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RATIONES DECIDENDI

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APPEAL – WHERE THERE IS NO COMPLAIN AGAINST THE REASONS OR FINDINGS OF FACT IN AN APPEAL

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These two grounds of appeal are general and vague as they do not complain against any particular specific finding of fact or any other part of the decision of the Court of Appeal. The main body of each ground disclose no arguable complain. They are complaining against the conclusions of the Court of Appeal derived from of its findings of fact. In the absence of any complain against the reasons or findings of facts from which the conclusions that the  prosecution proves its case and that the appeal lacks merit are derived, the appeal is empty and baseless or groundless. Without appealing against the findings of facts or reasons from which a conclusion was made, an appeal against only the conclusion is not arguable and is incompetent.

This is because by not appealing against the specific findings of facts, the appellant accepts them as correct, conclusive and binding upon it. See Iyoho v Effiong, (2007) 7 SC (Pt. 111) 90, Dabup v Kolo, (1993) 12 SCNJ 1. Having accepted the findings of facts or reasons as correct, the appellant cannot be heard to validly appeal or argue against the conclusion that logically flows from such unchallenged findings of fact. Such an appeal is clearly an absurdity and an illusory exercise. – Per E. A. Agim, JSC

 

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CRIMINAL CHARGE – WAYS OF PROVING A CRIMINAL CHARGE

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As correctly argued by both appellant and the State, a criminal charge can be proved by direct evidence of eyewitnesses to the crime, by confession of the accused and or by circumstantial evidence. Aigbadion v. The State (2006) 4 SCNJ 1, Agboola v. The State (2014) 10 ACLR 328 @ 411.

…For circumstantial evidence to sustain a conviction it must point positively and unequivocally to the conclusion that the accused person and one other committed the offence. – Per E. A. Agim, JSC

 

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CONCURRENT FINDINGS – CONDUCT OF THE SUPREME COURT TO CONCURRENT FINDINGS OF FACTS

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It is settled that this Court does not make a habit of interfering with concurrent findings of fact unless they are shown to be perverse or/to have occasioned a miscarriage of justice. The appellant must satisfy the Court that special circumstances exist to warrant a third evaluation of the facts of the case. See Asset Management Nominees Ltd. & Anor Vs Forte Oil Plc & Ors (2023) LPELR – 60186 (SC) @ 42 A – F, Ganiyu vs The State (2023) LPELR – 60156 (SC) @ 42 B – C, Tobi vs The State (2019) LPELR – 46537 (SC) @ 33- 34 C – A, Itu vs The State (2016) 5 NWLR (Pt. 1506) 443. – Per K. M. O. Kekere-Ekun, JSC

 

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PROSECTUTION – METHODS THE PROSECUTION CAN RELY ON TO DISCHARGE BURDEN OF PROOF OF THE COMMISSION OF A CRIME

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It is settled law that in the discharge of the burden of proof of the commission of a crime beyond reasonable doubt, the prosecution may rely on one or more of the following methods:

(a) Direct evidence of eye witness;

(b) Circumstantial evidence, and/or;

(c) Confessional statement of the accused. See Abirifon vs The State (2013) 6-7 SC (Pt.III) 81; (2013) LPELR – 20804 (SC) @ 7-8 B – A; Igabele vs The State (2006) 6 NWLR (Pt.975) 100; Ojo vs FRN (2023) LPELR – 59970 (SC) @ 13-14 D – B. – Per K. M. O. Kekere-Ekun, JSC

 

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‘LAST SEEN’ – THE DOCTRINE OF ‘LAST SEEN’ EXPLAINED

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Explaining the doctrine of "last seen, this Court per Adekeye, JSC in Madu vs The State (2012) 15 NWLR (Pt. 1324) 405 @ 456 F – G, held thus:

‘The doctrine of last seen means that the law presumes that the person last seen with the deceased bears full responsibility for his or her death. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the accused person to give an explanation relating to how the deceased met his or her death. In the absence of an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that the accused person killed the deceased.”

See also Kwenev Vs The State (2022) LPELR-57561 (SC) @ 39-40 F – D 84-85 D – A, Archibong vs The State (2006) 14 NWLR (Pt. 1000) 349. This is one of the limited circumstances in Criminal Prosecution in which the accused person is required to give an explanation as to the cause of death of the deceased. – Per K. M. O. Kekere-Ekun, JSC

 

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GUILT – HOW THE GUILT OF AN ACCUSED CAN BE PROVED

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The guilt of a defendant can be proved by direct evidence, by confession of the defendant or by circumstantial evidence. See AIGBADION v. THE STATE (2006) 4 SCNJ 1, AGBOOLA v. THE STATE (2014) 10 ACLR 328 @ 411. Since there is no direct eye witness to the murder of the deceased, the Court will have to rely on circumstantial pieces of evidence. See ADDO v. STATE (2020) LPELR-55521(SC) (Pp. 16 paras. C). – Per H. M. Ogunwumiju, JSC

 

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CIRCUMSTANTIAL EVIDENCE – HOW CIRCUMSTANTIAL EVIDENCE IS USED OR ESTABLISHED – THE EEFECT OF CIRCUMSTANTIAL EVIDENCE

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On the issue of circumstantial evidence, this Court in PAUL v. STATE (2019) LPELR-47386(SC) Pp. 27-28 paras. B held per AUGIE JSC as follows:

“… “Circumstantial evidence, on the other hand, requires an inference to be made to establish a fact. “Inference” is’ a conclusion reached by considering other facts and deducing a logical consequence from them” – Black’s Law Dictionary, 9th Ed. Circumstantial evidence, however, does not point directly to a fact. In other words, an inference must be made, which would link the circumstantial evidence to the fact that the party using it, is trying to prove which can make it a lot more powerful than direct evidence – see Lori & Anor V. State (1980) NSCC (Vol. 12) 269, wherein this Court, per Nnamani, & SC, expatiated on this principle and aptly too as follows: Circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances, which by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. But the circumstantial evidence sufficient to support a conviction must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner, and no one else, is the murderer. The facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.” ; – Per H. M. Ogunwumiju, JSC

 

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‘LAST SEEN’ – THE ‘LAST SEEN’ DOCTRINE EXPLAINED

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In UMAR v. STATE (2018) 7 NWLR (Pt. 1617) 72 @ 90-91 this Court per Nweze JSC explained the doctrine of last seen thus:

“… where an accused person was the last person to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death. In the absence of such an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that he (the accused person) killed the deceased person”. – Per H. M. Ogunwumiju, JSC

 

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‘LAST SEEN’ – DUTY OF THE ACCUSED WHERE HE WAS THE PERSON LAST SEEN WITH A DECEASED PERSON

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This Court per John Inyang Okoro JSC in STATE v. SUNDAY (2019) LPELR-46943(SC) has held that:

“…Therefore, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to an irresistible conclusion that it was the accused that was last seen with the deceased and no other person, and then there is no room for an acquittal. A trial Court can safely convict on such evidence. It is the duty of an accused person who is faced with compelling and damnifying circumstantial evidence to give explanation relating to how the deceased met his death and in the absence of such explanation, a trial Court will be justified to hold that it was the accused who killed the deceased being the person last seen with him. See IGABELE v. THE STATE (2006) 6 NWLR (PT 975) 100, GABRIEL v. THE STATE (1989) 3 NWLR (PT. 122) 457, IGHO V THE STATE (1978) 3 SC 87, MADU v. THE STATE (2012) 15 NWLR (PT 1324) 405, TAJUDEEN ILIYASU v. THE STATE (2015) LPELR – 24403 (SC)”. (emphasis mine) – Per H. M. Ogunwumiju, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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1. Penal Code Law, Laws of Borno State 1994

 

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