CORAM
PARTIES
P. C. ABBA JESSY APPELLANTS
THE STATE RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant was arraigned before the lower Court for culpable homicide punishable with death under Section 221 of the Penal Code. The Appellant was alleged to have, on or about the 1st of September 2004, at the Mobile Police Force Barracks in Kwami Village along Gombe-Dukku Road, caused the death of one Barrister Mado Sule Yaro by shooting him on the head with a FNC Rifle with the knowledge that death would be a probable consequence. The Appellant pleaded not guilty, and the matter proceeded to trial. in the course of which the Respondent called eight witnesses and tendered seven exhibits in proof of its case while the Appellant testified as the sole witness in his defence. At the conclusion of trial and after the rendering of final addresses by Counsel to the parties, the lower Court entered judgment wherein it found the Appellant guilty as charged and sentenced him to death by hanging. The Appellant was dissatisfied with the judgment, and has now filed an appeal before this court.
HELD
Appeal Dismissed
ISSUES
Whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offence of culpable homicide punishable with death beyond reasonable doubt. Whether the lower Court was correct when it found that the defence of alibi was unavailable to the Appellant in the circumstances of this case.
RATIONES DECIDENDI
APPEAL, CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE
DISMISSAL OF AN APPEAL – CONDITIONS UPON WHICH AN APPEAL WOULD BE DISMISSED IN CRIMINAL MATTER
“Now, it is trite law that an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment answers the following questions positively: (i) did the prosecution prove the essential elements of the offence; (ii) was the case proved beyond reasonable doubt; and (iii) was the evaluation of the evidence of the prosecution and defence witnesses properly done Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360.”
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
CULPABLE HOMICIDE- INGREDIENTS THAT MUST BE ESTABLISHED TO SECURE A CONVICTION FOR CULPABLE HOMICIDE
“It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence.”
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ONUS OF PROOF – NATURE OF THE ONUS OF PROOF IN CRIMINAL PROCEEDINGS
“The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted Sabi Vs State(2011) 14 NWLR (Pt 1268) 421, Obi Vs State (2013) 5 NWLR (Pt 1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt 1391) 298. It must, however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt Adeleke Vs State (2013) 16 NWLR (Pt 1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER 372 at 373 thus:
Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable the case is proved beyond reasonable doubt but nothing short will suffice.”
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
PROOF OF CAUSE OF DEATH – MODE OF ESTABLISHING CAUSE OF DEATH IN A CHARGE OF CULPABLE HOMICIDE
“On the second ingredient of the offence of whether it was the act of the Appellant that caused the death of deceased person, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant Udosen Vs State (2007) 4 NWLR (Pt 1023) 125, Oche Vs State (2007) 5 NWLR (Pt 1027) 214, Ekpoisong Vs State (2009) 1 NWLR (Pt 1122) 354, Iliyasu Vs State (2014) 15 NWLR (Pt 1430) 245. This point was made by the Supreme Court in Oforlete Vs State (2000) 12 NWLR (Pt 631) 415 thus:
In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence.”
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
PROOF OF CAUSE OF DEATH – INSTANCE WHEN MEDICAL EVIDENCE WILL BE UNNECESSARY IN PROVING CAUSE OF DEATH
“It is trite that where there is evidence that a deceased person was hale and hearty before the occurrence of an offending act and death is instantaneous or nearly so and there is no break in the chain of events from the time of the act that caused the injury to the deceased to the time of the death, the death of the deceased will be attributed to that act, even without medical evidence of the cause of death Essien Vs State (1984) 3 SC 14, Adekunle Vs State (1989) 5 NWLR (Pt 123) 505, Azu Vs State (1993) 6 NWLR (Pt 299) 303 and Akpa Vs State (2008) 14 NWLR (Pt 1106) 72. Thus, in Ben Vs State (2006) 16 NWLR (Pt 1006) 582, where the deceased was struck on the head with a stick and he fell down unconscious and never regained consciousness until he was pronounced dead some hours later in the hospital, the Supreme Court held that the trial Court rightly found that the cause of death was the lethal blow to the head without a need for medical evidence. In Adekunle Vs State (2006) 14 NWLR (Pt 1000) 717, where the deceased was shot by the defendant and was rushed to the hospital for treatment and died on the next day, the Supreme Court held that medical evidence was unnecessary and that the gun shot was the cause of death. The rationale for this position, which is founded on sound logic and common sense, is that since that act is the most proximate event to the death of the deceased, it should be regarded as the deciding factor even where it may be taken as merely contributory to the death of the deceased. Jeremiah Vs State (2012) 14 NWLR (Pt 1320) 248.”
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
GUILT OF AN ACCUSED PERSON- METHOD OF PROVING THE GUILT OF AN ACCUSED PERSON IN CRIMINAL TRIAL
“It is settled law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any or all of the modes Emeka Vs State (2001) 14 NWLR (Pt 734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt 1066) 300, Mbang Vs State (2010) 7 NWLR (Pt 1194) 431, Dele Vs State (2011) 1 NWLR (Pt 1229) 508, Ilodigwe Vs State (2012) 18 NWLR (Pt 1331) 1.”
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
EVIDENCE – INSTANCE WHEN A DEFENCE CAN CHALLENGE EVIDENCE LAWFULLY ADMITTED AT TRIAL
“It is a settled principle in criminal litigation that where a confessional statement of an accused defendant is tendered in evidence without any objection or protest from the accused defendant or his Counsel, the confessional statement will be deemed to have been made voluntarily and its contents will be deemed true Osung Vs State (2012) 18 NWLR (Pt 1332) 256, Ajibade Vs State (2013) 6 NWLR (Pt 1349) 25 at 44 E-H, Stephen Vs State (2013) 8 NWLR (Pt 1355) 153 at 173 D-H. Additionally, the records of appeal show that at no time during the cross-examination of the fifth prosecution witness did the Counsel to the Appellant put the witness to task on whether or not the Appellant made the statement. The law is that, in such circumstances, the testimony of the witness will be believed and any subsequent retraction of the confessional statement by the accused defendant is to be treated as an afterthought. Oforlete Vs State (2000) 12 NWLR (Pt 681) 415, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119, Chukwu Vs State (2013) 4 NWLR (Pt 1343) 1, Egwumi Vs State (2013) All FWLR (Pt 678) 824. This point was succinctly made by Belgore, JSC (as he then was) in Okosi Vs State (1989) 2 SCNJ 183 at 188-189 thus:
In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination. This is the only way to attack any evidence lawfully admitted at trial. For when evidence is primary, admissible in the sense that it is not hearsay or opinion and not that of an expert, and an accused person wants to dispute it, the venue for doing so is when that witness is giving evidence in the witness box. The witness should be cross-examined to elucidate fact disputed, for it is late at the close of the case to attempt to negative what was left unchallenged; it is even an exercise in futility to demolish it on appeal and it is like building a castle in the air to find fault in such evidence in this court.”
CRIMINAL LAW AND PROCEDURE, COURT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
RETRACTED CONFESSIONAL STATEMENT- TESTS A RETRACTED CONFESSIONAL STATEMENT MUST BE SUBJECTED TO BEFORE COURTS CAN ACT ON SAME
“It is settled law that where an accused person retracts his confessional statement, as the Appellant sought to do in this case, what is required is that before a trial court would believe and act on the confession it should subject the confessional statement to the following tests:
i. whether there is anything outside the confession which shows that it may be true;
ii. Whether it is corroborated in any way;
iii. Whether the relevant statements of facts made in it are mostly true as far as they can be tested;
iv. Whether the defendant had the opportunity of committing the offence;
v. whether the confession is possible; and
vi. Whether the alleged confession is consistent with other facts that have been ascertained and established.
See the cases of Osuagwu Vs State (2009) 1 NWLR (Pt 1123) 523, Kabiru Vs Attorney General, Ogun State (2009) 5 NWLR (Pt 1134) 209, Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1, Galadima Vs State (2012) 18 NWLR (Pt 1333) 610, Umar Vs The State (2018) LPELR-43719(SC), Ankpegher Vs State (2018) LPELR-43906(SC).”
WORDS AND PHRASES
CORROBORATIVE EVIDENCE – MEANING OF A CORROBORATIVE EVIDENCE
“Now, corroborative evidence is evidence which is supplementary to that already given and tending to strengthen or confirm it. It is additional evidence of different character on the same point Stephen Vs State (2013) LPELR-SC.256/2010, Musa Vs State(2013) LPELR-SC.409/2011. Corroborative evidence is evidence given by an independent witness which confirms in some material particular, not merely that the crime was committed, but that the crime was committed by the accused person Omisade Vs The Queen (1964) NSCC 170, Okabichi Vs State (1975) 3 SC 96, Ogugu Vs State (1994) 9 NWLR (Pt 366) 1, Ogunbayo Vs The State (2007) 8 NWLR (Pt 1035) 157.”
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
CORROBORATIVE EVIDENCE- NATURE OF CORROBORATIVE EVIDENCE REQUIRED TO VERIFY THE CONTENTS OF A CONFESSIONAL STATEMENT
“The corroborative evidence required to verify the contents of a confessional statement does not need to be direct evidence that the accused person committed the offence nor does it need to amount to a confirmation of the whole account given by the accused defendant in the statement and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission Queen Vs Obiasa (1962) 2 SCNLR 402, Achabua Vs The State (1976) 12 SC 63, Durugo Vs State (1992) 7 NWLR (Pt 255) 525. In other words, evidence that is regarded as corroboration is clearly not a repetition of the evidence sought to be corroborated, otherwise, there would be no need for the original evidence. It is sufficient if the independent evidence corroborates the evidence in some respects material to the charge in question or affects the accused by connecting him or tending to connect him with the crime Ezigbo Vs The State (2012) LPELR-7855 (SC), State Vs Gwangwan (2015) LPELR-24837(SC), Natsaha Vs State (2017) LPELR-42359(SC), Ifaramoye Vs State (2017) LPELR-42031(SC). Thus, it has been held that a medical report on the nature of injury could serve as corroborative evidence of the contents of a confessional statement Igri Vs State (2012) 16 NWLR (Pt 1327) 522, Halliru Vs State (2016) LPELR-41310(CA).”
WORDS AND PHRASES
“CONTRADICTION”- MEANING OF THE TERM “CONTRADICTION” IN EVIDENCE
“Contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts. Bassey Vs State (2012) 12 NWLR (Pt 1314) 209, Jeremiah Vs State (2012) 14 NWLR (Pt 1320) 248 and Egwumi Vs State (2013) 13 NWLR (Pt 1372) 525.”
CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE
CONVICTION – WHETHER CONVICTION CAN BE SUSTAINED SOLELY ON CONFESSIONAL STATEMENT
“It is trite that a conviction can be sustained on a free and voluntary confession of a defendant notwithstanding that he retracted the confession Solola Vs State (2005) 11 NWLR (Pt 937) 460, Osuagwu Vs State (2009) 1 NWLR (Pt 1123) 523,Arogundade Vs State (2009) 6 NWLR (Pt 1136) 165, Oseni Vs State (2011) 6 NWLR (Pt 1242) 138.”
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
OFFENCE OF MURDER- CRITERIA FOR DETERMINING WHETHER A DEFENDANT INTENDED TO COMMIT MURDER
“It is the law that a person intends the natural consequences of his action and if there was an intention to cause grievous bodily harm and death results, then the defendant must be held culpable for the offence of murder Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548, Halliru Vs State supra. In order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused Iden Vs State (1994) 8 NWLR (Pt 365) 719, Iliyasu Vs State (2015) 11 NWLR (Pt 1469) 26, Maiwada Vs State (2015) LPELR-40413(CA). Thus, in Ejeka Vs State (2003) 7 NWLR (Pt 819) 408, where the appellant stabbed the deceased with a jack knife at a fragile part of the body such as the heart, the Supreme Court held that this clearly explained that the appellants intention was to cause grievous injury to the deceased. Similarly, in Nwokearu Vs State supra, where the appellant stabbed the deceased in the stomach with a knife, the Court of Appeal held that this showed an intention by the appellant to cause grievous harm to the deceased.”
WORDS AND PHRASES
“ALIBI”- MEANING OF THE WORD “ALIBI”
“The word alibi means elsewhere and the defence of alibi postulates that at the time of the commission of the offence, the accused person was not at the scene of the crime and so it is impossible for him to be guilty of the crime. Mohammed Vs State (2015) LPELR-24397(SC), Idemudia Vs State (2015) LPELR-24835(SC), Sani Vs State (2015) LPELR-24818(SC).”
LAW OF EVIDENCE, CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE
DEFENCE OF ALIBI- ON WHO LIES THE BURDEN OF PROVING THE DEFENCE OF ALIBI
“The law is that the defence of alibi is a matter that is exclusively within the knowledge of an accused person and thus the burden is always on the accused person to provide at the earliest opportunity the materials or data of where he was at the time of the commission of the crime so as to enable the Police investigate the facts of the defence and the earliest opportunity has been held by the Courts to be in the course of interrogation of the accused person by the Police. Where the defence is raised by an accused person for the first time in the witness box, as in the instant case, it is treated as an afterthought and the failure to investigate it will not, in such circumstances, vitiate the judgment of the lower Court. Sowemimo Vs State (2004) 11 NWLR (Pt 885) 515, Azeez Vs State (2005) 8 NWLR (Pt 927) 312, Ndidi Vs State (2007) 13 NWLR (Pt 1052) 633 , Adeyemi Vs State (2011) 5 NWLR (Pt 1239) 1, Iliyasu Vs State supra.”
LAW OF EVIDENCE, CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE
PLEA OF ALIBI- INSTANCE WHERE THE PLEA OF ALIBI WOULD COLLAPSE
“Further, it is settled law that where the prosecution leads strong and positive evidence which fixes the accused person at the scene of the crime and which evidence the court accepts, any plea of alibi raised by the accused person naturally collapses. Olaiya Vs State (2010) 3 NWLR (Pt 1181) 423, Afolalu Vs State (2010) 16 NWLR (Pt 1220) 584 and Sunday Vs State (2010) 18 NWLR (Pt 1224) 223.”
CASES CITED
Not Available
STATUTES REFERRED TO
Penal Code|