CORAM

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John Inyang Okoro-Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

Habeeb Adewale Olumuyiwa Abiru-Justice of the Supreme Court of Nigeria

Jamilu Yammama Tukur -Justice of the Supreme Court of Nigeria

Mohammed Baba Idris-Justice of the Supreme Court of Nigeria

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PARTIES

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MU’AMMAR TUKUR

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW AND PROCEDURE, EVIDENCE, CULPABLE HOMICIDE, DOCUMENTARY EVIDENCE, EYEWITNESS TESTIMONY, APPEAL, PRACTICE AND PROCEDURE, CONSTITUTIONAL LAW

 

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SUMMARY OF FACTS

The Appellant, Mu’ammar Tukur, was arraigned before the High Court of Justice, Katsina State, Funtua Judicial Division on a one-count charge of culpable homicide punishable with death under Section 221(a) of the Penal Code. The prosecution alleged that the Appellant stabbed one Shafir Muktar with a knife on his chest and neck, knowing that death would be the probable consequence of his act.

The prosecution presented five eyewitnesses (PW1-PW5) who testified that they witnessed the incident. According to their evidence, a fight initially occurred between the Appellant on one side and PW1, PW2, PW3, and the deceased on the other side. After the fight, the Appellant returned and confronted the deceased, asking if he was among those who had beaten him. The deceased denied involvement, whereupon the Appellant stabbed him with what witnesses variously described as either a “white iron” or a knife. The deceased cried out that the Appellant had killed him and subsequently died from the wounds.

The incident occurred at night, and there was no electricity at the material time, though witnesses testified there was bright moonlight. The prosecution tendered exhibits including photographs of the deceased (Exhibits 1 and 2), a postmortem examination report (Exhibit 3), and a medical report (Exhibit 4) through PW6, the Investigating Police Officer (IPO), rather than through their respective makers.

The trial Court convicted and sentenced the Appellant to death. Dissatisfied, the Appellant appealed to the Court of Appeal, Kaduna Division, which dismissed his appeal and affirmed the trial Court’s decision on February 14, 2019. The Appellant then appealed to the Supreme Court, raising issues concerning the admissibility of documentary evidence, contradictions in witness testimony regarding the weapon used, and the circumstances under which the incident occurred at night without electricity.

 

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HELD

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1. The appeal was dismissed.

2. The Supreme Court affirmed the judgment of the Court of Appeal delivered on February 14, 2019, which had upheld the conviction and sentence of death passed on the Appellant by the trial Court.

3. The Court held that the prosecution successfully proved beyond reasonable doubt all three ingredients of culpable homicide: (a) that the deceased died, (b) that the Appellant caused the death, and (c) that the Appellant intended to either kill the deceased or cause him grievous bodily harm.

4. The Court held that Exhibits 1, 2, 3, and 4 were properly admitted in evidence pursuant to Sections 55(1) and 83 of the Evidence Act, 2011, notwithstanding that they were not tendered by their makers.

5. The Court held that contradictions in witness testimony regarding whether the weapon was a “white iron” or a “knife” were immaterial and did not affect the substantive proof of the offence.

6. The Court held that the absence of electricity at night did not vitiate the eyewitness testimony, as there was evidence of bright moonlight at the scene.

7. The Court held that failure to tender the actual weapon used in the commission of the crime was not fatal to the prosecution’s case where there was cogent eyewitness evidence linking the Appellant to the crime.

 

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ISSUES

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1. Whether the Court of Appeal was right when it affirmed the decision of the trial Court which admitted in evidence and relied on Exhibits 1, 2, 3, and 4 to convict and sentence the Appellant to death even though the said exhibits did not meet the conditions of admissibility under the Evidence Act, 2011.?

2. Whether the Court of Appeal was right in affirming the decision of the trial Court which convicted and sentenced the Appellant to death on the alleged offence of culpable homicide under Section 221(a) of the Penal Code without taking into consideration the issue of material time of the commission of the alleged offence.?

3. Whether the Court of Appeal was right when it affirmed the conviction and sentence of the Appellant for the offence of culpable homicide under Section 221(a) of the Penal Code despite the contradictory evidence of the prosecution’s witnesses as to the nature of the weapon used in the commission of the alleged crime.?

 

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RATIONES DECIDENDI

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INGREDIENTS OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH – BURDEN OF PROOF ON THE PROSECUTION:

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“Generally, and it is already established in our criminal justice system that in a charge of murder, the prosecution has the burden to prove certain elements or ingredients of the charge beyond reasonable doubt. These are: That a human being has died; That the death of the deceased was caused by the accused; and That the accused intended to either kill the victim or cause him grievous harm which resulted to death.” – Per Tijjani Abubakar, JSC

 

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EYEWITNESS EVIDENCE – LEGAL STATUS AND EVIDENTIARY VALUE:

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“It admits of no argument that the law now treats and ascribes to the evidence of a victim as that of an eyewitness, see Giki v. State (2018) 6 NWLR (Pt, 1615) 237, Chidozie v. COP (2018) 6 NWLR (Pt.1615) 373, Ogu v. COP (2018) 8 NWLR (Pt. 1620) 134. In the mind of the law, an eyewitness denotes a person who can testify as to what he has seen from his personal observations, see Ude v. State (2016) 14 NWLR (Pt, 1531) 122. The evidence of an eyewitness, in the eyes of the law, qualifies as one of the three ways to prove commission of a crime. An eyewitness testifies to what he has seen or observed personally from any of his senses. It ranks second in the methodical ladder of proof of crimes. It concedes the first rung to a confession.” – Per Tijjani Abubakar, JSC

 

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EYEWITNESS EVIDENCE – RELIABILITY AND QUALITY:

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“The law is trite that the best form of evidence is where the eye witness is direct and his evidence gives an on the spot narration of the event as it happened. See AKINLOLU v. STATE (2015) LPELR-25986(SC) (PP. 41-42, PARAS. F-A). Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw. It is almost impossible to dislodge such evidence. See UDO v. STATE (2018) LPELR-43707(SC) (P. 22, PARAS. A-B).” – Per Tijjani Abubakar, JSC

 

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ADMISSIBILITY OF DOCUMENTARY EVIDENCE – GENERAL RULE AND EXCEPTIONS:

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“The law is settled that a document should be tendered through the maker by virtue of Section 83(1) of the Evidence Act, 2011. This is because, it is only the maker who can answer questions regarding the contents of the document especially under cross examination. However, there are certain exceptions stipulated by the proviso to Section 83(1) of the Evidence Act (supra). The conditions are that, if the maker is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.” – Per Tijjani Abubakar, JSC

 

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MEDICAL REPORTS – ADMISSIBILITY WITHOUT MAKER UNDER SECTION 55(1) OF THE EVIDENCE ACT:

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“However, by way of an exception to the general proposition of the law under Section 83(1) of the Evidence Act, 2011 (supra), the law is equally trite that a document such as Exhibit I (the Medical Report) may not have to be tendered vide the maker thereof. See Section 55(1) of the Evidence Act, 2011 (supra) which provides unequally: ’55(1) Either party to the proceedings in any criminal case may produce a certificate signed by the Government pharmacist, the Deputy Government pharmacist, an Assistant Government pharmacist, a Government pathologist or entomologist or the Accountant-General, or any other pharmacist so specified by the Government pharmacist of the Federation or of a State or any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State, or any accountant specified by the Account-General of the Federation or of a State (whether any such officer is by that or any other title in the service of the State or of the Federal Government) and the production of any such certificate be taken as sufficient evidence of the facts stated in it.'” – Per Tijjani Abubakar, JSC

 

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CONTRADICTIONS IN PROSECUTION EVIDENCE – MATERIALITY TEST:

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“I agree with the concurrent findings of the lower and intermediate Courts that the contradictions if any are no material and therefore not fatal to the case of the Respondent. On whether the deceased died as a result of stab wounds sustained from attack by the Appellant whether with white iron or knife, the fact that remains relevant and fully established remains that the deceased was savagely and brutally attacked by the Appellant and the Appellant died as a result of the wounds inflicted on him by the Appellant as established by the medical report and found by the trial and the intermediate Courts.” – Per Tijjani Abubakar, JSC

 

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WEAPON USED IN COMMISSION OF CRIME – NON-TENDERING NOT FATAL TO PROSECUTION’S CASE:

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“There is no principle of law known to me which requires the prosecution to tender the weapon used in an alleged crime to establish the guilt of the accused person. The law is very well settled that where there is cogent evidence of use of a weapon or weapons in the commission of a crime and cogent evidence linking the accused person with the use of the said weapon or weapons in the commission of the said crime, failure to tender the weapon, or doubt as to the identity of the weapon, in the instant case ‘white iron or knife’ is absolutely of no consequence, such wild goose chase by the Appellant cannot in anyway vitiate the judgment of the lower Court.” – Per Tijjani Abubakar, JSC

 

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PROOF BEYOND REASONABLE DOUBT – STANDARD IN CRIMINAL CASES:

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“Therefore, from the unchallenged evidence of PW1, PW2, PW3, and PW4 and Exhibit 1, 2, 3, and 4, no reasonable doubt exists in the case before the trial Court that the Appellant was guilty of the offence of culpable homicide as charged. The trial Court dutifully, properly and rightly reviewed and evaluated the evidence placed before it by the Respondent and the Appellant before reaching the correct decision to convict and sentence the Appellant.” – Per Tijjani Abubakar, JSC

 

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INTERFERENCE WITH CONCURRENT FINDINGS OF FACT – WHEN APPELLATE COURT WILL INTERFERE:

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“The learned Counsel for the Appellant fought tooth and nail for the Appellant but failed woefully to demonstrate that the concurrent findings of facts based on the evidence before the Court are either perverse, made on wrong principles of law; substantive or procedural or that a miscarriage of justice occurred against the Appellant to justify interference. I will therefore let the decision of the lower Court remain intact because the Appellant has not established a legitimate claim to interference by this Court. Where there is proper concurrent findings of facts, Appellate Court must refrain from interfering which such findings.” – Per Tijjani Abubakar, JSC

 

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CULPABLE HOMICIDE PUNISHABLE WITH DEATH – STATUTORY PROVISION AND REQUIREMENTS:

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“Except in the circumstances mentioned in Section 222 culpable homicide shall be punished with death- (a) – if the act by which the death is caused is done with the intention of causing death; or (b) – if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.” – Per John Inyang Okoro, JSC

 

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INGREDIENTS OF CULPABLE HOMICIDE – WHAT PROSECUTION MUST ESTABLISH:

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“Against the backdrop of the above provision, the law is trite that to prove the offence against an accused person, the prosecution must establish the following ingredients beyond reasonable doubt: (a) that the deceased has died, (b) that the accused person caused the death of the deceased, and [c] that the accused person intended either to kill the deceased or cause him grievous bodily harm.” – Per John Inyang Okoro, JSC

 

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FAILURE TO TENDER WEAPON – EFFECT ON PROOF OF CRIME:

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“The ingredients of the offence having been established against the Appellant, the arguments that Exhibits 1, 2, 3 and 4 were wrongly admitted in evidence and that failure to tender the homicide weapon is fatal to the case of the prosecution are of no moment. The exhibits in question were pictures showing that the deceased actually died. Putting them in evidence did not in any way alter the probity and cogency of the evidence that the deceased had died. On the second argument, the well settled position of the law is that failure to tender weapon used in commission of crime would not affect the proof once other parameters exist in the evidence.” – Per John Inyang Okoro, JSC

 

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UNCHALLENGED EYEWITNESS EVIDENCE – EVIDENTIARY VALUE IN CRIMINAL TRIALS:

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“In proving the charge against the Appellant, the Respondent called five witnesses who were present when the Appellant attacked the deceased and inflicted the fatal injuries on the deceased and they gave eye witnesses’ accounts of the attack. The evidence of the witnesses were not challenged, disparaged or dented under cross-examination. The law is trite that the best form of evidence is where the eye witness is direct and his evidence gives an on the spot narration of the event as it happened. Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw. It is almost impossible to dislodge such evidence.” – Per Habeeb Adewale Olumuyiwa Abiru, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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• Penal Code, Section 221(a)

• Penal Code, Section 222

• Evidence Act, 2011, Section 55(1)

• Evidence Act, 2011, Section 83(1)

• Evidence Act, 2011, Section 83(2)

• Evidence Act, 2011, Section 84

• Evidence Act, 2011, Section 135(1)

• Criminal Procedure Code, Section 206

• Criminal Procedure Code, Section 249(3)

 

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OTHER CITATIONS

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