ISAH KASSIM v. THE STATE

CORAM

PARTIES

ISAH KASSIM APPELLANTS

THE STATE RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant was the accused person in charge No. K/19c./2012 at the Kano Judicial division of the High Court of Kano State. In the one count charge, it was allege that he committed the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code (cap. 105) Laws of Kano State 1991 in that on or about 15/1/2009 at about 1600 hrs., at Hotoro quarters Kano, he stabbed one Akaraja Musbahu with a knife on 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 and the Appellant gave evidence in defence of the charge without calling any additional witness. The evidence of the prosecution witnesses 1 and 2 is that on 15/1/2009 at about 4:20pm to 4:30pm there was a quarrel between the Appellant and one Akaraja Musbahu, who the Appellant had tried to prevent from fetching water at a water tap in a house at Hotoro, Kano where both of them were working. The quarrel resulted in a fight and in the course of which the Appellant stabbed Akaraja Musbahu with a knife at his back, he was taken to hospital where he died later that day. The Appellant was taken to the Police Station and thereafter to the State Criminal Investigation Department of the Police in Kano. In the considered judgment of the High Court of Kano State, the Appellant was found guilty of the offence as charged, convicted and sentenced to death by hanging. The learned judge however took cognizance of the age of the Appellant among other circumstances and recommended him for mercy by the Governor of Kano State. Not satisfied with the judgment of the trial court, the Appellant filed a Notice of Appeal.

HELD

Appeal Dismissed.

ISSUES

Whether in the absence of cogent and compelling evidence by the Respondent to establish the guilt of the Appellant, the learned trial judge was right to convict the Appellant for the offence charged?

RATIONES DECIDENDI

RECORD OF PROCEEDINGS – DUTY ON AN APPELLATE COURT TO RELY ON THE RECORD OF PROCEEDING IN DETERMINING THE STRENGTH OF THE APPELLANT’S CASE

“The appellate Court is to rely on the record in determining the strength of appellant’s case in the matter of proof of the case, and not arguments in the brief no matter how dexterous they may be; Nabature V. Mahuta (1992) 9 NWLR (Pt. 263) 85.”

GUILT OF AN ACCUSED PERSON – ON WHO LIES THE BURDEN OF PROVING THE GUILT OF ACCUSED PERSON

“It has indeed become settled by virtue of the relevant provisions of our law that the burden is always on the prosecution to proof the guilt of an accused person. This burden rests squarely on the prosecution by the presumption of innocence guaranteed to an accused person under Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and does not shift except in the recognized instances.”

STANDARD OF PROOF – STANDARD OF PROOF WHERE THE COMMISSION OF A CRIME IS IN ISSUE

“Also the standard of proof cast on the prosecution by section 135 (1) of Evidence Act, 2011 is beyond reasonable doubt. That sub-section provides that:
“If the commission of a crime by a party to any proceedings is directly in issue in any proceedings Civil or Criminal, it must be proved beyond reasonable doubt”.
–

BURDEN OF PROOF – MODE OF DISCHARGING THE BURDEN OF PROVING THE GUILT OF AN ACCUSED PERSON

“It is thus generally the law that the burden of proving that a person is guilty of the commission of a crime is on the prosecution, and to discharge this burden, the prosecution must proof the guilt beyond reasonable doubt. See Udosen V. The State (2007) 4 NWLR (Pt. 1023) 125; The State V. Azeez & Ors(2008) 4 SC 188; Igabele V. State (2006) 6 NWLR (Pt. 975) 100; Jua V. State (2010) 4 NWLR (Pt. 1184) 217; Okoro V. The State(1988) 12 SC (Pt.11) 88; Bakare V. The State (1987) 3 SC 1.”

PROOF OF CRIME – WAYS OF PROVING THE COMMISSION OF AN OFFENCE

“It is the law that the commission of an offence by accused person may be proved by all or any of the following means; (1) by the confession of the accused; (2) by evidence of an eye witness, and (3) by circumstantial evidence. See Haruna V. Att. Gen. Fed.(2012) 9 NWLR (Pt. 1306) 419; Adekoya V. State (2012) 9 NWLR (Pt. 1306) 539.”

ADMISSIBILITY OF A DOCUMENT – APPROPRIATE TIME TO RAISE AN OBJECTION TO THE ADMISSIBILITY OF A DOCUMENT

“The law is clear that an objection to the admissibility of a document is taken when the document is sought to be tendered. In the judgment of this Court in Hon. Godwin Udo King V. INEC & Ors. (2008) PLELR 4403 (CA), JEAN OMOKRI JCA (OF BLESSED MEMORY) stated the position as follows:
“It is also instructive to note that the appellant who was present at the Tribunal did not even object to the admissibility of exhibits R1 and R2 when they were tendered by RW1, Eme Bassey Eyo at page 382 – 383 of the record. So what is appellant complaining about. The current and correct state of the law was robustly settled in Ezomo V. NNB PLC (2006) 14 NWLR (Pt. 1000) 442 at 651 – 658, where it was held that;
“It is a cardinal rule of evidence and practice in civil and criminal cases that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence.”

ADMISSIBILITY OF DOCUMENT – INSTANCE WHERE A DOCUMENT WHOSE ADMISSIBILITY IS SUBJECT TO THE FULFILLMENT OF SOME CONDITIONS WOULD BE ADMISSIBLE

“In Arinze V. First Bank (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) 78; Olagunju JCA said:
‘In any case the law is that where a document is not inadmissible per se 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) 7 ALL NLR 50, 53 – 5…; Anyaebosi V. R.T. Brisco (Nigeria) Ltd. (1987) 3 NWLR (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 I) 13, 22 – 23; and Attorney General Of Oyo State V. Fair Lakes Hotel Ltd. (1989) 5 NWLR (Pt 121) 255; (1999) 12 SCNJ 11″.”

ADMISSIBILITY OF DOCUMENTARY EVIDENCE – INSTANCE WHEN AN APPELLATE COURT WOULD ENTERTAIN A COMPLAINT ON THE ADMISSIBILITY OF DOCUMENTARY EVIDENCE

“The situation in which the Court of Appeal will entertain a complaint on admissibility of documentary evidence by a trial Court even without objection is where the document was unlawfully received in evidence at the trial or the document is by law inadmissible in any Court and in all circumstances. See the Supreme Court case of Osho V. Ape (1998) 8 NWLR (Pt. 562) 492; (1998) 6 SC 121.”

DOCUMENTARY EVIDENCE – PRINCIPLES GUIDING DOCUMENTARY EVIDENCE

“The principles relating to reception of evidence in our Courts are guided by the Evidence Act, which is currently the Act of 2011 and specifically in relation to proof of contents of documents, Section 85 of that Act provides that, the contents of documents may be proved either by primary or by secondary evidence. Indeed by section 88 of the Act, documents are to be proved by primary evidence except in the cases mentioned therein which are enumerated in Section 89 and in which circumstances secondary evidence may be given of the existence, condition and content of a document. While primary evidence according to Section 86means the document itself produced for inspection of the Court, secondary evidence, according to Section 87 means a copy thereof or oral accounts of the contents of a document given by person who has himself seen the document. Documents are under Sections 102 and 103 of the same Evidence Act 2011 classified further into Public and Private Documents. Public documents by Section 102 are,
(a) Documents forming the official acts or records of the 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.
By Section 103, all documents other than public documents are private documents.
On the admissibility of secondary evidence, a distinction is drawn under Section 90 (1) of the Act between public and private documents whereby in the matter of public documents it is provided in 90 (1) (c) that what is receivable as secondary evidence is a certified copy of the document, but no other secondary evidence is admissible. Thus by the combination 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.”

PROOF OF CRIME – CIRCUMSTANCES WHEN A PROSECUTION WILL SECURE CONVICTION

“On the further argument of the learned Counsel for the appellant on the proof of the case, it is quite settled as submitted by the respondent’s Counsel that the prosecution will secure conviction where the ingredients of the alleged offence have been proved beyond reasonable doubt. See Alabi V. State (1993) 7 NWLR (Pt. 307) 511.”

PROOF BEYOND REASONABLE DOUBT – MEANING OF PROOF BEYOND REASONABLE DOUBT

“The correct legal position is that proof beyond reasonable doubt does not mean proof to the hilt or proof beyond all shadows of doubt. See Miller V. Minister Of Pensions (1947) 3 ALL ER 373; Agbo V. State (2006) 6 NWLR (Pt.977) 545.The prosecution is required to prove the ingredients of the offence beyond reasonable doubt.”

MEDICAL REPORT – WHETHER A MEDICAL REPORT IS NECESSARY TO PROVE CAUSE OF DEATH IN THE ABSENCE OF AN INTERVENING ACT

“It is pertinent to state here that the evidence on record is that following the stabbing with knife by the appellant, the deceased died at the hospital shortly after admission and even before the prescribed drugs could be administered. In other words that there was no intervening act, and 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 (1968) NWLR 163.”

CULPABLE HOMICIDE – INGREDIENTS THAT MUST BE ESTABLISHED IN A CHARGE OF CULPABLE HOMICIDE

“The ingredients of the charge of culpable homicide punishable under Section 221 (b) of the Penal Code as well stated by the learned trial judge on page 45 of the record of appeal are;
(1) That there has been death of a person
(2) That the death was as a result of the act of the accused, and
(3) That the act was done with the intention of causing death or the intention of causing such injury that death would be the probable result.
See Ubani V. The State (2003) 16 NSCQR 265; Igago V. The State (1999) 14 NWLR (Pt.637) 1; Edoho V. The State (2010) 14 NWLR (Pt. 1214) 651 Ogbu & Anor V. The State (2007) 4 SCM 169; (2007) 3 SC (Pt. 11) 273; State V. Danjuma (1997) 5 NWLR (Pt. 506) 512.”

PUBLIC DOCUMENTS – NATURE OF PUBLIC DOCUMENTS THAT ARE ADMISSIBLE

“It is only when primary evidence of a public document is not available that certified true copies of these documents, as contemplated in Section 104 of the Evidence Act, are required. The Apex Court, in the recent case of P.D.P v INEC (2014) 17 NWLR part 1437 Page 525 at 562 had reason to pronounce on whether primary evidence which is a public document requires certification under Section 104 of the Evidence Act. In the appeal before them the argument was whether the original of a letter from INEC was properly tendered without the necessity of subjecting it to certification. Reading the lead Judgment, His Lordship, Okoro JSC, at Pages 562 to 563 Para E-C held as follows:
“The learned Senior Counsel for the 1st – 24th respondents however submitted that the letter written by Independent National Electoral Commission to the 25th respondent was properly tendered by him without the necessity of subjecting it to certification since it was in his custody. He cited and relied on the case of Iteogu V. LPDC (2009) 17 NWLR (Pt.1171) at 684 paragraphs G – H.
‘There is no doubt that Exhibit W05 was written by Independent National Electoral Commission Commissioner and addressed to the 25th respondent who had custody of it up to the point of tendering some.
Was this document of a character that ought to have been certified before tendering Section 102 of the Evidence Act 2011 makes the following documents public documents. It says:
“The following ore public documents:
(a) Documents forming the official acts or records of the official acts,
(i) Of the sovereign authority,
(ii) Of official bodies and Tribunals,
(iii) Of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere.
(b) Public records kept in Nigeria of private documents.”
By Section 103 of the Act, all documents other than public documents are classified as private documents. Exhibit WOs, the subject of this issue was the original correspondence between the 25th respondent and Independent National Electoral Commission. The said letter was in the custody of the 25th respondent and remained so up to the point ‘there it was tendered. It is my view that was no need to certify the original copy of the letter even though it was issued to him by o public officer. It is the public officer who keeps the original of a public document who certifies o copy of it which con be tendered where the original cannot be tendered. Put differently, the only categories of public documents that ore admissible ore either the original document itself or, in the absence of such original, certified copies and no other.” Emphasis Mine.”

PUBLIC DOCUMENTS – WHETHER THE ORIGINAL COPY OF A PUBLIC DOCUMENT REQUIRES CERTIFICATION BEFORE IT IS ADMISSIBLE

“It is patent therefore, that where the original copy of a document is available, it is admissible without the requirement for certification. See also Daggash V Bulama (2000) 14 NWLR PART 892 PAGE 144.”

Legalpedia Citation: (2015) Legalpedia (CA) 51155

In the Court of Appeal

HOLDEN AT KADUNA

Thu Mar 19, 2015

Suit Number: CA/K/162/C/2014