Legalpedia Citation: (2024-03) Legalpedia 15969 (CA)

In the Court of Appeal

Holden At YOLA

Fri Mar 15, 2024

Suit Number: CA/YL/30C/2022

CORAM

Ita George Mbaba Justice

Patricia Ajuma Mahmoud Justice

Peter Oyinkenimiemi Affen Justice

PARTIES

OBADIAH MATO

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

At the Lower Court, the appellant and his co-accused (Denis Yohanna Baba Laam, Ishaya Dimas Dillas, Titus Haruna) were arraigned for criminal conspiracy, culpable homicide, and inciting public disturbance on or about the 23rd day of May 2018, at Pantisawa Village, Yorro L.G.A., Taraba State, where civil disturbances occurred, leading to violent attacks and conflicts allegedly resulting in the deaths of Ishaya Ali, Jibrin Barade, Dahiru Umar, Albasu Barade, Mustapha (Mustafa) Abubakar, and Hamman-Adamu Abubakar.

Two prosecution witnesses identified the appellant among those seen at the scene of the violent disturbances and attacks, stating that the appellant was the one blowing a horn. The appellant pleaded not guilty to the charge on being arraigned. He denied knowledge of the extra-judicial statement credited to him, which was marked as “Rejected.” He also raised a defense of alibi when arrested, but it was never investigated.

At the end of the trial and consideration of the evidence and addresses of Counsel, the trial court convicted the appellant, along with two other accused persons, for the offenses of criminal conspiracy, inciting public disturbance, and culpable homicide punishable with death, contrary to Section 97(1), 114, 221(a) of the Penal Code, Laws of Taraba State, and sentenced him to 7 years, one year, and life imprisonments, respectively.

The appellant was aggrieved by the decision, hence the instant appeal.

HELD

Appeal allowed in part

ISSUES

1. Whether the learned trial judge of the lower court was right when it held that the prosecution has sufficiently proved the offenses of criminal conspiracy, culpable homicide not punishable with death, and inciting public disturbance against the appellant beyond reasonable doubt?

RATIONES DECIDENDI

GROUND OF APPEAL – WHEN A GROUND OF APPEAL IS DEEMED ABANDONED – WHERE A GROUND OF APPEAL IS ABANDONED

Appellant did not raise any issue from ground 2 of the Appeal, which was on the defence of alibi. The said ground 2 is hereby struck out, having been abandoned, the law being that a ground of Appeal from which no issue is distilled for determination, is deemed abandoned and must be struck out. See PDP VS. INEC (2014) LPELR – 23808 (SC); OSASERE IGBINOVIA VS. THE STATE (2021) LPELR – 54569 (CA). – Per I. G. Mbaba, JCA

GROUND OF APPEAL – WHETHER A COMPETENT GROUND OF APPEAL CAN BE ARGUED TOGETHER WITH AN INCOMPETENT GROUND OF APPEAL – THE EFFECT OF ARGUING AN INCOMPETENT GROUND OF APPEAL WITH A COMPETENT ONE

The law is settled that a competent ground of appeal cannot be argued together with an incompetent ground as an issue in appeal. The virus of the defective ground of appeal has defiled the competent ground and the entire argument thereof. In North West Petroleum & Gas Co. Ltd & Anor v. Iloh & Ors (2021) LPELR – 55509 (CA), we held:

“The law is trite that arguing a valid ground(s) of appeal (or issue distilled therefrom) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because the inclusion of the defective ground(s) or issue(s) in the argument vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or issue and the entire argument. In Augustine & Anor v. Apugo & Ors (2019) LPELR – 48822 (CA), it was held: ‘1st Respondent argued issues 2 and 3 together, and I think that corrupted the issue 2, having earlier held that the issues 3 and 5 for determination (of the Appeal) are incompetent for proliferation of issues. A party, in my view, cannot argue an invalid issue for determination of appeal with a valid one. Even by joining the said ground two with ground one, to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR -42073 (CA)… The law is trite, that combining an incompetent ground of appeal with a valid one to raise and argue an issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.’ See Akpan vs. Bob &Ors (2010) LPELR – 376 SC; (2010) 17 NWLR (pt. 1223) 42. See also Afolabi Vs The State (2016) LPELR – 40300 (SC):

“Although the learned counsel for the appellant in paragraph 5.01 of his brief states that he would argue issues 2 and 3 together, he reneged and argued them separately. For, whereas issue two spans pages 11 to 16, at paragraph 5.14, issue 3 starts from paragraph 5.15 on page 16. It will be recalled that issue 3 had earlier been adjudged incompetent not having derived from any of the grounds of appeal. So arguing the incompetent issue with the competent issue 2 would have created problems since the Court would not be in a position to pick, choose and/or decipher which argument is for which issue. It is not the duty of the Court to sift submissions by learned counsel made on issues raised from competent and incompetent/non-existent grounds of appeal.”

Per OKORO, JSC (Pp. 15-16, paras. E-C). – Per I. G. Mbaba, JCA

SELF HELP – WHETHER THE LAW ALLOWS FOR SELF HELP

The law does not allow for self-help, as no aggrieved person is permitted to take the law into their hands and resort to violence, war, or attrition. The law provides civil remedies through the courts, even when the police fail to act, and every aggrieved person is expected (and should be advised) to channel their anger and frustration through lawful means to seek redress. The mob culture or action that led to the burning of houses/property and the killing of six precious lives remains condemnable, whatever the underlying cause and infractions.

Per I. G. Mbaba, JCA

CULPABLE HOMICIDE – INGREDIENTS OF THE OFFENSE OF CULPABLE HOMICIDE

In a charge of culpable homicide, there must be evidence to establish:

1. The death of the deceased, a human being;

2.That the appellant was the cause of the death, i.e., his act or omission directly caused the death of the deceased; and

3. He intended the said outcome, that is, the death or grievous bodily harm of the victim-deceased.

See the case of JOJI VS. COP (2023) LPELR – 60379 (CA); GALADIMA VS. STATE (2017) LPELR – 43469 (SC); OLANREWAJU VS. STATE (2023) LPELR – 59947 (SC); STATE VS. WADARI (2023) LPELR – 61564 (CA); ISAH VS. THE STATE (2017) LPELR – 43472 (SC).

Of course, for the act or omission of the accused person to cause or result in the death of the deceased, the said act or omission must be capable of physical and feasible contact and impact on the body or person of the deceased, not metaphysically, magically, or spiritually manipulated. There must be proof of the mens rea, that the accused intended the death or grievous bodily harm of the deceased by the alleged act inflicted on the deceased.

Per I. G. Mbaba, JCA

EVIDENCE – WHETHER THE ACCUSED IS REQUIRED TO GIVE EVIDENCE TO PROVE HIS INNOCENCE – BURDEN OF PROOF IN CRIMINAL LITIGATION

Of course, an accused person has the right to remain silent in court if he elects not to give any evidence at all, and that cannot be inferred as complicity in the offense charged, since the duty remains on the prosecution to establish the offense against the accused person at all times. The accused is never required to lead evidence to establish his innocence. See Adamu Garba Vs. The State (1997) LPELR – 1308 (SC), where it was held:

“Section 236(1)(c) provides thus: ‘An accused person shall be a competent witness on his own behalf in any inquiry or trial, whether he is accused solely or jointly with another person or persons, and his evidence may be used in proceedings against any person or persons tried jointly with him; and the following provisions shall have effect: (a) … (b) … (c) the failure of the accused to give evidence shall not be made the subject of any comment by the prosecution, but the Court may draw such inference as it thinks fit.’ While Section 33(11) of the 1979 Constitution enacted as follows: ’33(ii). No person who is tried for a criminal offense shall be compelled to give evidence at the trial.’ There is nothing in Section 33(11) above which either directly or impliedly suggests that a Court cannot or should not comment or draw justifiable inference from the evidence when an accused person elects to take advantage of the provision of Subsection (11) of Section 33 of the Constitution. The subsection is very clear and unambiguous in that it prohibits the compelling of any person who is being tried for a criminal offense from giving evidence unless he voluntarily elects to do so. Section 236(1)(c) of the CPC is not in conflict with Section 33(11) of the Constitution, and there is great wisdom in that provision when it prohibits the prosecution from commenting on an accused person’s failure to give evidence to avoid influencing the Court’s approach in deciding the case. It will be absurd to accept the learned Senior Advocate’s suggestion that the comment or inference drawn by the learned Justice of the Court of Appeal of the appellant’s failure to give evidence is a violation or infringement of the appellant’s fundamental human rights guaranteed by Section 33(11) of the 1979 Constitution (supra). Our Law Reports are replete with the decisions of our superior Courts of record containing inference drawn from the accused person’s failure to give evidence in explanation to some proved facts which only he can offer. See Mandilas & Kamberis Ltd. v. I.G.P. (1958) SCNLR 335 which both parties referred to in their respective briefs.”

Per WALI, JSC (Pp. 9-10, paras. A-C)

An accused person is never required to lead evidence to prove his innocence. See Okoro Vs. State (1988) LPELR – 2494 (SC); Mumuni & Ors. Vs. State (1975) LPELR – 1926 (SC); Olarewaju Vs. State (Supra) and Williams Vs. State (1992) LPELR – 3492 (SC), where it was held:

“There is no doubt whatsoever that under our system of criminal justice, an accused person is presumed innocent until he is proved guilty. There is therefore no question of an accused proving his innocence before a law Court. For the duration of a trial, an accused person may not utter a word, he is not bound to say anything. The duty is on the prosecution to prove the charge against an accused person beyond reasonable doubt.”

Per KUTIGI, JSC (P. 9, paras. D-E)

There must, therefore, be a causal link between the accused person and the death of the deceased. See the case of Polycap Vs The State (2020) LPELR – 49631 CA:

“There must, therefore, be a causal link between the accused person and the death of the deceased, without any intervening cause. Of course, where the death of the deceased resulted immediately from the acts or omissions of the accused person, for instance, the deceased died at the spot of the fight upon being slapped by the accused person, the inference would be strong that the slap or act of the accused person caused the death of the deceased. See the case of State Vs Sunday (supra); Ozo Vs The State (1971) ANLR 112; Ben Vs The State (2006) 16 NWLR (Pt.1006) 582; Nwachukwu Vs The State (2002) 12 NWLR (Pt.782) 543. (In which case, medical report may not even be necessary to prove culpability).

In the case of Ochiba Vs State (2011) LPELR-8245 (SC), it was held:

‘In every case where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established, proved beyond reasonable doubt. In the cause of events, the cause of death must just be proved. Where the cause of death is ascertained, the nexus between the cause of death and the act or omission of the accused alleged to have caused it must be established.'”

Per I. G. Mbaba, JCA

CRIMINAL FROLIC – LIABILITY WHERE AN ACCUSED AGREED AS TO THE CRIMINAL FROLIC

Of course, that is the law in a situation where the accused persons agreed to the criminal frolic, intending the outcome of their common criminal pursuit. Like a gang of armed robbers on a mission/operation, where the act of one of them, in the course of actualizing their mission, is seen as the act of all of them. See Mohammed Vs The State (2022) LPELR – 57830 (SC), where it was held:

A similar presentation occurred in the case of State V Michael Omo Fadezi (supra) and Peter-Odili JSC stated thus: “It is salient that the two accused persons each carried a gun at the time of the violent robbery incident even though it is not material who of the participating robbers had a gun so long as they were together acting in concert. I place reliance on Iregbu v The State (2013) 12 NWLR (Pt.1367) 92; Jimmy v The State (2013) 18 NWLR (Pt.1386) 229.” The fact that the appellant denies wielding the knife does not absolve him from guilt of the offence. It is, in fact, not necessary to prove that an accused was armed. It will suffice if it is shown that he is a member of an armed gang. See Emmanuel Okpulor v. The State (1990) 7 NWLR (pt.164) 581 @ 590.

Per I. G. Mbaba, JCA

DYING DECLARATION – THE CONDITIONS FOR A DYING DECLARATION TO BE VALID – CONDUCT OF COURTS TO DYING DECLARATIONS

A dying declaration must fix the accused person at the scene of the crime. See the case of Enebeli Vs The State (2021) LPELR – 54990 SC:

“I am of the view that the dying declaration of the deceased as testified to by PW1 qualified as a dying declaration and same fixes the Appellant at the crime scene. It is well established in our law that a statement made by a person in imminent fear of death, and believing at the time it is made that he or she was going to die is admissible as a dying declaration. See Section 40 of the Evidence Act; AKINFE V. STATE (1988) 3 NWLR (PT.83) 729; OKOKOR V. STATE (1967) NMLR 189; KING V. STATE (2016) LPELR – 40046 (SC); OKEREKE V. STATE (2016) LPELR – 40012 (SC) at 37; EZEKWE V. STATE (2018) LPELR – 44392 (SC) at 25 – 26. Strict proof of the actual words used by the deceased is generally required in proof of the dying declaration to avoid any uncertainties. The Respondent in the instant appeal through the testimony of PW1 led evidence as to actual words said as the dying declaration by the deceased and the said statement was a verifiable direct statement by the deceased, directed at the Appellant. PW1 in his evidence at trial said the deceased shouted: ‘Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body’. The statement of the deceased when the Appellant poured acid on her as recounted by PW1 amounts to a dying declaration by the standard of the law of evidence.”

Per JAURO, JSC (Pp. 28-29, paras. D)

A dying declaration cannot be founded on speculation or fishing evidence by the PW6. Thankfully, the extrajudicial statement/evidence of PW6 was tendered in this case to compare with his later evidence in Court, to expose the damage the later evidence sought to do to the Appellant. The effect of contradictions between the extrajudicial statement of a witness and his evidence in Court has been clearly stated by our Courts, that one vitiates the other. See Lalapu Vs C.O.P. (2019) LPELR – 47814 (SC):

Per I. G. Mbaba, JCA

COURTS – CONDUCT OF COURTS WHERE THERE IS CONTRADICTION IN THE TESTIMONY AND WRITTEN STATEMENT OF A WITNESS

The rule is that without explanation or satisfactory explanation for the contradiction between the PW.2’s testimony and his previous statement in writing, the learned trial Judge cannot pick and choose which of the versions to believe or disbelieve: BOY MUKA v. THE STATE (1976) 10 SC 305. The PW.2 had been seriously discredited by the cross-examination and Exhibit C. See also Christopher Vs State (2023) LPELR – 61563 (CA):

“In a criminal trial, the statement made by a witness to the police at the earliest opportunity, when the event or account of the commission of the offense is fresh in his mind, is material. And where the statements made by a witness on a case to the police are in conflict with his evidence in Court, once that earlier statement is properly produced and made evidence at the trial, the Court has a duty to consider the same to determine the credibility of the witness. Of course, in such cases, the credibility of the witness is questioned. See the case of Amadi Vs A.G. Imo State (2017) LPELR – 42013 (SC), where it was held: In all the cases where the previous written statement of the witness, made extra-judicially by him, was held to be a contradiction of his testimony in Court, the previous statement was produced for inspection of the trial Court and was duly admitted in evidence as exhibit. In OLADEJO v. THE STATE (1987) 4 SC 96; (1987) NWLR (pt.61) 419, the extra-judicial statements of the witness which contradicted his testimony on oath were produced and admitted in evidence as Exhibits B and D. In EMOGA v. THE STATE (1997) 1 NWLR (pt.483) 615, the Appellant’s extra-judicial statement, Exhibit A, was produced and admitted in evidence in the course of his being cross-examined to show his inconsistency. In OBIRI v. THE STATE (1997) 7 NWLR (pt.513) 352, the Supreme Court on the application of the appellant allowed the extra-judicial statement of the PW.1, which was very vital for the resolution of a material issue as to whether the PW.1 was an eyewitness of the alleged murder, was admitted in evidence as Exhibit SC.1. It was found that Exhibit SC.1 violently and substantially contradicted the testimony of the PW.1. It was held that the PW.1 was an unreliable witness, whose evidence could not be relied upon for the conviction and sentence of the appellant. In the circumstance where both sets of evidence from the PW.1 were mutually contradictory in materia particula, it was not safe for the Court to pick and choose which of them was reliable and which was the unreliable version of the incident. See: BOY MUKA v. THE STATE (1976) 10 SC. 305. The law is settled that before the credit of a witness is to be impeached by his previous statement, such previous statement must be produced and put in evidence as an exhibit after the attention of the witness is drawn to it. See SUNDAY v. THE STATE (2010) 18 NWLR (pt. 1224) 223 at 241.” Per EKO, JSC (Pp. 14-17, paras. F-B) See also Tyom Vs State (2021) LPELR – 56599 CA: “It is settled law that where there is a conflict between the written statement made to the police by a witness and his oral evidence in Court, the trial Court ought to hold that the witness is unreliable and his evidence ought not to be relied upon.

Per I. G. Mbaba, JCA

SCENE OF CRIME – WHETHER BEING FOUND IN THE SCENE OF CRIME AUTOMATICALLY AMOUNTS TO IMPLICATION IN THE CRIME

Of course, being found at the scene of a crime does not, without more, amount to implication in the crime. See the case of CHRISTOPHER VS STATE (2023) LPELR – 61563 CA:

“Being found at the scene of the crime does not make one implicated in the crime, without more. See Nwachukwu Vs The State (2014) LPELR – 22531 (CA): “It is the law that the fact that somebody was at the scene of a crime does not make him an accomplice or a party to it. In AGBOPA V. STATE (1981) 2 N.C.R 59 AT 66, the Court explained: “Finally, it is my view that apart from being present at the scene as one of the watchmen, there is no evidence against the second appellant that he took part in the killing of the deceased. It has been held in AKANNI V. R(2) that mere presence at the place where a crime is being committed is not sufficient to make a person a party to the offence…” Per ABBA AJI, JCA (P. 33, paras. C-E) See also Asakpa Vs State (2022) LPELR – 58425 (CA): The mere presence of the accused person at the scene of the crime is not conclusive that he committed the offence.”

Per I. G. Mbaba, JCA

COURTS – CONDUCT OF COURTS WHERE A STATUTE FIXES MANDATORY PUNISHMENT FOR AN OFFENCE

The decision of the trial Court was, in my view, therefore wrong and became scandalous when it sentenced the Appellant to six years imprisonment without the option of fine, considering that the alleged offence, as per the statute, attracts only six (6) months imprisonment. See Section 97(2) of the Penal Code Law of Taraba State, 1997.

In the case of The State Vs Wadari (2023) LPELR – 61564 (CA), we held: “Where the statute fixes mandatory punishment for the offence, the trial Court has no discretion to reduce or increase the sentence.”

Per I. G. Mbaba, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Penal Code, Laws of Taraba State
3. Evidence Act, 2011
   

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