ABDULLAHI v THE STATE

ABDULLAHI v THE STATE


IN THE COURT OF APPEAL
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA

ON MONDAY, 9TH JULY, 2018


Appeal No: CA/A/755C/2017
CITATION:

Before Their Lordships:

ABUBAKAR DATTI YAHAYA, JCA

PETER OLABISI IGE, JCA

TANI YUSUF HASSAN, JCA


BETWEEN

KASHIM ABDULLAHI

(APPELLANT)

AND

THE STATE

(RESPONDENT)


PRONOUNCEMENTS


A. APPEAL
1. Reply Brief – Use of a reply brief

Essence of a reply brief

“The essence of reply brief is to respond to new points raised in the respondent’s brief. It is not a repetition or improvement of arguments in the appellant’s brief. See Samuel Iheanacho & Anor Vs Emmanuel Iwuamadi & Anor (2013) LPELR 20689; Ochemaje Vs State (2008) 15 NWLR (part 1109) 15 and Danladi Vs Dangiri (2015) 2 NWLR (part 1442) 124. In the instant case, the appellant’s reply brief is a repetition of what has already been canvassed in the main brief which is unnecessary. The reply brief is not helpful to the appellant and it is discountenanced.”Per HASSAN, J.C.A. read in context

2. Interference with Evaluation of Evidence – Instances when an appellate Court will interfere with evaluation of evidence made by a trial Court

Circumstances in which an appellate Court will interfere with evaluation of evidence made by a trial Court

“When a trial Court has carried out its assignment satisfactorily, an appeal Court shall be left with no option but to affirm such a decision. To do otherwise with institutionalize miscarriage of justice – Ali Vs State (supra).

Therefore, an appellate Court will only interfere with the findings of the trial Court on credibility of witnesses where it is manifestly seen to be unreasonable or otherwise faulted.”Per HASSAN, J.C.A. read in context

B. COURT
3. Duty of Court – Duty of the appellate court to consider all issues before it and exceptions

Duty of an Appeal Court to consider all issues for determination raised before it; exceptions thereto

“Indeed it is the duty of the appeal Court to consider all issues for determination raised before it except where it is of the view that a consideration of one or more issues is/are enough to dispose of the appeal. In such a situation, the Court may adopt such issues as may dispose of the appeal and may not be bound to consider all other issues it considers irrelevant and unnecessary. Thus even in cases where an appellant filed five issues for instance, and the respondent formulates one or two issues only, the Court can adopt one or two issues of the respondent if it finds they are more cogent and able to determine the appeal better than the five issues formulated by the appellant. See Emeka Vs State (2014) 13 NWLR (part 1425) 614 at 619 and Tunbi Vs Opawole (2000) 2 NWLR (part 644) 275.

In some cases, some issues may be subsumed in another or other issues. There is flexibility in the matter. See Anyaduba Vs N.R.T.C Ltd (1992) 5 NWLR (part 243) 535, Okonji Vs Njokanma (1991) 7 NWLR (part 202) 131 and Tunbi Vs Opawole (supra).”Per HASSAN, J.C.A. read in context

C. CRIMINAL LAW
4. Attempt to Commit an Offence – Elements of the offence of attempt to commit culpable homicide

Ingredients of the offence of attempt to commit culpable homicide

For the prosecution to sustain a charge under Section 229 of the Penal Code, there must be established the following ingredients:
1. That the death of a human being was attempted.

2. That such attempt was the act of the accused.

3. That such act was done with the intention of causing death or that the accused knew or had reason to know, that death would be the probable cause and not only the likely consequence of the act or of any bodily injury which the act was intended to cause.”Per HASSAN, J.C.A. read in context

5. Defence of Alibi – Cases where the defence of alibi would not avail an accused person

Circumstances where the defence of alibi would not avail an accused person

“Alibi is a defence raised by an accused. It is a complete defence if found to be true. The defence simply means that when the offence was committed the accused person was somewhere else, so he certainly could not have committed the offence. However the defence crumbles if there is stronger evidence against it or if after it is investigated it is found to be untrue – Sani Vs State (2015) 15 NWLR (part 1483) 522 at 546. See also Obiode Vs State (1970) 1 all NLR 35; Nwosu Vs State (1976) 6 SC 109 and Odidika Vs State (1977) 2 SC 21.

In the instant case, the defence of alibi would not avail the appellant. This is because the date of incident given by the appellant in Exhibit P5 is not consistent with the date of the acid attack on PW1. There is nothing therefore for the Police to investigate. Having raised same in his evidence at the trial, still with inconsistent date of incident, the prosecution would naturally not be obliged at that late stage of the proceeding to investigate such a plea and would be entitled to rely on the evidence of its witnesses to disprove the alibi. Where the prosecution in this case adduced sufficient, accepted and credible evidence to fix the appellant at the scene of crime at the material time, the plea of alibi would logically be demolished.”Per HASSAN, J.C.A. read in context

D. EVIDENCE
6. Burden/Standard of Proof – Burden and standard of proof in criminal cases

Burden and standard of proof in criminal cases; whether the burden of proof on the prosecution can shift to the accused person

“The law is settled that in criminal trials the burden of proving the allegation beyond reasonable doubt, against the accused person is always on the prosecution. It is a burden that never shifts, and so credible evidence has to be led, in order to discharge that burden – Okoh Vs State (2014) 8 NWLR (part 1410) 502 and Section 138 of the Evidence Act, 2011.”Per HASSAN, J.C.A. read in context

7. Contradiction in Evidence – Nature and effect of contradiction in evidence

When will a piece of evidence contradict another; nature of contradiction in evidence that will vitiate proceedings

“The Supreme Court in the case of Okanlawon Vs State (2015) 17 NWLR (part 1489) 445 at 457 held that contradiction in the evidence of the prosecution that will be fatal must be substantial. Minor contradiction which does not affect the credibility of witnesses may not be fatal. Contradiction must relate to substance. Trivial contradiction should not vitiate a trial. A piece of evidence contradicts another if it affirms the opposite of what the other evidence has stated and not when there is a minor discrepancy between them. In the instant case, one could hardly see the contradiction being complained about. The appellant had the onus to pinpoint his surmised contradictions but failed to do so. The difference in narration of event is not contradiction that is fatal to the case.

Another contradiction argued by the appellant is that while PW1 said there was light in the compound on the fateful day, the PW5 said there was no light (electricity) but moonlight. PW5 in her evidence reflected at page 19 – 20 of the record stated thus:

“By about after one, I came out to ease myself, I went back to bed but could not sleep. After a while, I heard Ladi shouting. Ladi first mentioned my name, she said O. J. they have poured me fire. She again said “Kashim has killed me”‘ I asked what kind of fire it was. She ran and met me where I was lying, my body began to burn me, I pushed her back.” Under cross examination, she said there was no light on that day but moon light. The point here is that even if PW5 said there was no light in the compound on the fateful night, it is not a contradiction that is material and fundamental in the determination of the guilt of the appellant, since by her evidence produced above, she heard when PW1 mentioned the name of the appellant as the person that poured acid on her, when she said “Kashim has killed me”. It is also the submission of the appellant’s counsel on contradiction that while PW5 said she had known PW1 for about 20years, PW1 under cross-examination said she does not know PW5. PW5 is Idakwo Anita. She said O. J. means Ojoma which was the name PW1 called her with, after the acid attack on her (PW1). It is correct under cross examination PW1 said she does not know Idakwo Anita. However it is common that some people are known by their nick name other than their real name. It was not suggested that PW5 was physically in Court when PW1 was asked whether she knows her (PW5) but denied knowing her. PW1 was not also asked of PW5 by her nick name which is the name she is called with PW5 did not deny that she is also called O.J. The appellant did not say that Anita Idokwo is not the person referred to as O. J. by PW1. The contradiction is not material to create a doubt in the mind of the Court to resolve in favour of the appellant when it is not in dispute that both PW1 and PW5 lived in the same compound at the time of the commission of crime. Moreso the appellant did not challenge the evidence of PW1 and PW5 as the person responsible for the acid attack on PW1.

For a contradiction in the evidence of the prosecution to be essential and affect the decision of the trial Court, the contradiction must be material and fundamental in the determination of the guilt of the accused. The contradiction must create doubt in the mind of the Court to such a degree that the Court believes that the doubt must be resolved in favour of the accused – Kachi vs State (2015) 9 NWLR (part 1464) 213 at 218. See also Ekang Vs State (2001) 11 NWLR (part 723) 1; Obidike Vs State (2001) 17 NWLR (part 743) 601 and Esangbedo Vs State (1989) 4 NWLR (part 113) 57.

In her evidence PW1 recounted that the appellant entered her room around 2:00 am and poured acid on her. On her part, PW5 stated that she was on bed after 1:00 am when she heard PW1 calling her name for assistance and saying “Kashim has killed me.” It is significant to note that their evidence was not challenged or controverted under cross-examination. A calm examination of their evidence would show that the contradiction if any, is immaterial to the case of the prosecution.”Per HASSAN, J.C.A. read in context

8. Evaluation of Evidence – Duty of the trial Court on perception, evaluation and findings of fact

Duty of the trial Court as regards perception, evaluation and findings of fact

“Evaluation of evidence is the primary duty of the trial Court who saw and heard the witness testify in the witness box. The said Court therefore has the duty to assess the credibility of the witness. See Ali Vs State (2015) 10 NWLR (part 1466) 1 at 12; Babatunde Vs State (2014) 2 NWLR (part 1391) 211 and Usman Vs State (2014) 12 NWLR (part 1421) 207.”Per HASSAN, J.C.A. read in context

9. Proof – Methods of proving the commission of a crime

Ways of proving the commission of a crime

“A crime could be established by all or any of the three ways namely:

1) By direct evidence of an eye witness.

2) By circumstantial evidence.

3) By confessional statement – Famuyiwa Vs State (2018) 5 NWLR (part 1613) 515 at 518. See also Emeka Vs State (2002) 14 NWLR (part 734) 666.”Per HASSAN, J.C.A. read in context

10. Proof Beyond Reasonable Doubt – Definition of of proof beyond reasonable doubt

Meaning of proof beyond reasonable doubt

“A charge must be proved beyond reasonable doubt before there can be a conviction. In Miller Vs Minister of Pensions (1947) 2 All ER 372, Lord Denning explained proof beyond reasonable doubt when he said that it: “Does not mean proof beyond shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so 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 of that will suffice.”Per HASSAN, J.C.A read in context

11. Identification Evidence – Importance of the identification of an accused person in a criminal trial

“Identification is the heart of a criminal trial. It connotes a whole series of facts and circumstances for which a witness or witnesses associate an accused person with the commission of the offence charged. See Kachi vs State (2015) (supra) at 218 – 219; Archibong Vs State (2006) 14 NWLR (part 1000) 249 and Ukpabi Vs State (2004) 11 NWLR (part 884) 439.”Per HASSAN, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY HASSAN, J.C.A.


This appeal has emanated from the judgment of the High Court of Kogi State sitting at Idah, delivered on the 31st day of May, 2017 in suit No. IDHC/3C/2016 by Honourable Justice E. O. Haruna.

The appellant was accused in the charge as follows:

“That you, Kashim Abdullahi at about 2:00 hours on or about the 20th day of March, 2015, at Ubomu Area Ocheche road Idah in Idah Local Government Area within Kogi state Judicial Division did an act to wit; you violently splashed raw substance suspected to be raw acid all over the face and body of one Ladi Sule with such intention and under such circumstances that if by that act you had caused the death of Ladi Sule, you will have been guilty of culpable homicide with death and that you thereby committed an offence punishable under Section 229 of the Penal Code.”

The appellant was found guilty and sentenced to fifteen (15) years imprisonment.

The facts presented by the prosecution are that the appellant on 20th of March, 2015 at about 2:00 am, went into the room of one Ladi Sule and splashed raw substance suspected to be raw acid all over her face and body. She was conveyed to the Hospital where she spent about a year on admission.

In the course of trial, the prosecution called six witnesses and tendered exhibits. The appellant testified for himself and called two other witnesses who testified on his behalf.

The conviction of the appellant to fifteen years imprisonment gave rise to this appeal on six grounds of appeal, shorn of their particulars as follows:

GROUND ONE

“The decision of the Honourable Court is unreasonable, unwarranted and cannot be supported having regard the evidence adduced at the trial.”

GROUND TWO

“The Court erred in law when it held that the Appellant did not demonstrate to the Court the set of facts or state of things which the statement contained which would be unfavourable to the prosecution if the statement of the victim is produced against Section 167(d) of the Evidence Act thereby occasioning gross miscarriage of justice.”

GROUND THREE

“The Court erred in law and misdirected itself when it held that the ingredients of the offence with which the appellant was charged have been proved against him.”

GROUND FOUR

“The Honourable Court erred in law when it held that mere mentioning of Appellant’s name constitutes dying declaration and that was no contradiction in the prosecution’s case.”

GROUND FIVE

“The Honourable Court erred in law when it held that the issue of identity of the assailant is not in question as the victim had lived with the appellant for over 8 years.”

GROUND SIX

“The trial Court erred in law when it chose which of the prosecution witnesses to believe in convicting the accused person.”

In keeping with the Rules of this Court, the appellant’s brief dated and filed on the 15th day of December, 2017 was settled by learned counsel U. O. Onoja Esq. In it, five issues were distilled for determination as follows:
1. “Could a Court refuse to consider the evidence of a prosecution witness when that evidence contradicts the evidence of other prosecution witness(es) and casts doubt on the case of the prosecution?” (Ground 6).

2. “Whether the evidence before the Lower Court was credible and whether it was properly evaluated before the conviction of the Appellant.” (Grounds 1 and 3).

3. “Whether the Appellant was properly identified by PW1 as the person that splashed the substance on her” (Ground 5)

4. “Can the mentioning of the Appellant’s name by PW1 when she was in pain be said to be a dying declaration?” (Ground 4).

5. “Whether the refusal of the Lower Court to hold that the Respondent withheld evidence by not producing the statement PW1 made to the Police at Idah is right” (Ground 2).

The respondent’s brief settled by Abdulwahab Muhammed Esq., was dated and filed on the 12th day of January, 2018.

The respondent’s counsel identified two issues for determination as follows:

1. “Whether the Respondent proved its case beyond reasonable doubt to have justified the verdict of the trial Court.” (Grounds 1 and 3).

2. “Whether there are material weaknesses in the case of the prosecution that was not taken cognizance of by the trial Court?” (Grounds 2, 4, 5 and 6).

The appellant’s reply brief dated 24th January, 2018 was filed on the 30th day of January, 2018.

Indeed it is the duty of the appeal Court to consider all issues for determination raised before it except where it is of the view that a consideration of one or more issues is/are enough to dispose of the appeal. In such a situation, the Court may adopt such issues as may dispose of the appeal and may not be bound to consider all other issues it considers irrelevant and unnecessary. Thus even in cases where an appellant filed five issues for instance, and the respondent formulates one or two issues only, the Court can adopt one or two issues of the respondent if it finds they are more cogent and able to determine the appeal better than the five issues formulated by the appellant. See Emeka Vs State (2014) 13 NWLR (part 1425) 614 at 619 and Tunbi Vs Opawole (2000) 2 NWLR (part 644) 275.

In some cases, some issues may be subsumed in another or other issues. There is flexibility in the matter. See Anyaduba Vs N.R.T.C td (1992) 5 NWLR (part 243) 535, Okonji Vs Njokanma (1991) 7 NWLR (part 202) 131 and Tunbi Vs Opawole (supra).

In the instant case, the appellant’s issues 1, 2 and 5 are saying the same thing in different ways, on evaluation. Splitting the issues is unnecessary. The same thing applies to issues 3 and 4 of the appellant which relate to identification of the appellant.

In the circumstance, I reframe the issues to read as follows:

1. “Whether the trial Court properly evaluated the evidence placed before it.”
2. “Whether there was proper identification of the appellant by the victim.”

Learned counsel for the appellant submitted that PW1 and PW5 were living in the same compound when the incidence happened. That PW5 in her evidence said she had known PW1 for twenty years. She said on the fateful night there was no light in the compound but there was moon light. It is also her evidence that when the substance was poured on PW1, she was the first person, PW1 called, who helped in pouring water and oil on her.

The appellant’s counsel argued that PW1 in her evidence said there was light on the day of incidence and that her light was on, when the incidence happened. That under cross-examination she denied knowing the PW5. That there is contradiction in their evidence.

Relying on the cases of Orepeka Vs Amadi (1993) 11 SCNJ 68 at 78; Ogisugo Vs State (2015) All FWLR (part 792) 1602 at 1523; Nwosu Vs State (1985) NWLR (part 35) 348 and Prosper Vs State (2016) All FWLR (part 861) 1227 at 1250, it is submitted that the prosecution did not adduce any reason or cogent evidence for this contradiction of its witnesses.

Learned counsel referred to the oral evidence of PW1 in Court, and compared it with her extra judicial statement Exhibit “I” and submitted that they are two different accounts of the same incident coming from one person and that both accounts should be rejected for being contradictory. – Chukwu Vs State (2007) All FWLR (part 368) 268 at 297. That instead of the trial Court to properly evaluate the above pieces of evidence, it merely believed the evidence of PW1.

Referring to the cases of Morka & Ors Vs State (1998) LPELR 5631 and Nikoro Vs State (2016) LPELR 42024, this Court held that belief or disbelief is not a magic word without the benefit of a proper evaluation. In other words belief or disbelief should really represent a fair and impartial appraisal of all the facts and surrounding circumstances of any given case.

Also referring to the evidence of PW1, learned counsel submitted that it is impossible for a victim on whom a burning substance was splashed on her face in the night while sleeping to wake up and use one eye to see the fleeing perpetrator and recognize him. That it is also unbelievable that a man who decided to pour acid on another under the cover of darkness would meet his victim, wake her up, have dialogue with her before pouring the acid on her. That there was no medical report stating the nature of the substance and the trial Court did not evaluate the evidence of the substance on the body of the victim and cannot therefore rely on “natural inference”.

Arguing on the evidence of PW1 that the reason for splashing substance on her face was to prevent her from “make up and do guy” or parade herself a beauty, it is submitted that, patently this means to disfigure her face so that she could not be parading herself as a beauty. That evidently, there was no intention to cause death but to disfigure the face, which would only amount to grievous hurt but not homicide. That the Court completely ignored this evidence which led to a miscarriage of justice.

Submitting further, that the Court’s failure to consider the evidence of PW5 for the prosecution was only an excuse to shore up the prosecution’s case which it ought not to do on the authority of Ndidi Vs State (2007) S SCNJ 274 at 294.

Learned counsel argued that if the prosecution was not caught by Section 167(d) of the Evidence Act, 2011, the statement made by PW1 at Idah Police station ought to have been produced as requested. That the statement sought to be produced would have proved PW1 a liar for giving different statements to the Police from the oral evidence she gave in Court.

Referring to her evidence under cross-examination, when she said the accused poured acid on her which he admitted, the appellant’s counsel submitted that PW1 did not state that in her statement to the police Exhibit “I” which shows that she was telling lies when she said she saw the appellant that night and had dialogue with him.

It is finally submitted on issue one that PW1 did not lead credible evidence and the Lower Court did not evaluate the evidence before it, to find the ingredients of the offence as established. We are urged to allow the appeal.

For its part, the respondent’s counsel submitted that the case of the prosecution was well made out and the conviction of the appellant was based on the overwhelming evidence before the trial Court. As regards the evidence of PW1 learned counsel argued that, she did not only see appellant pouring acid on her but that there was conversation between her and the accused/appellant before the attack. He referred to the evidence of PW1 in chief and under cross examination to the effect that the appellant was fixed to the scene of crime.

On contradictions of the evidence of PW1 and PW5, as regards the issue of electricity in the compound on the fateful night, learned counsel submitted that the overwhelming and compelling evidence of PW1 was that the acid attack was carried out by no other but by the appellant. That the evidence of PW1 is clear that the attack was premeditated, and the appellant intended the natural consequences of his act. The Court was referred to page 42 paragraphs 23 and 24 of the record and to hold that there was proper evaluation of the evidence by the trial Court. That the authorities relied upon by the appellant on this issue have no relevance to this case.

Learned counsel for the respondent also debunked the submission of the appellant that there was no medical report on the extent of damage done to PW1 or on the type of substance that was used.

He referred to page 85 of the record where the trial Court held that there is no burden on the prosecution under Section 229 of the Penal Code to establish the substance poured on PW1.

Referring to the case of Galadima Vs State (2000) 11 NWLR (part 677) 1 SC, it is argued that the position of the law is that where there is a direct account of events as in the instant case, medical evidence is no longer necessary.

The respondent also argued that the absence of the statement of PW1 made at Idah Police Station is not fatal to the case of the prosecution since PW1 sufficiently reiterated the contents of both statements under cross examination.

We are urged to hold that the trial Court properly evaluated the evidence adduced before it.

The law is settled that in criminal trials the burden of proving the allegation beyond reasonable doubt, against the accused person is always on the prosecution. It is a burden that never shifts, and so credible evidence has to be led, in order to discharge that burden – Okoh Vs State (2014) 8 NWLR (part 1410) 502 and Section 138 of the Evidence Act, 2011.

For the prosecution to sustain a charge under Section 229 of the Penal Code, there must be established the following ingredients:

1. That the death of a human being was attempted.

2. That such attempt was the act of the accused.

3. That such act was done with the intention of causing death or that the accused knew or had reason to know, that death would be the probable cause and not only the likely consequence of the act or of any bodily injury which the act was intended to cause.

At page 41 of the record, PW1 in her oral evidence before the trial Court stated thus:

“I was lying in my room sleeping at about 2:00 am, the accused person woke me up. He was with acid and he poured it on me. He said this was what he earlier told me and he has done it.”

Under cross-examination at page 42 of the record, PW1 said:

“My light was on in my room when the acid was poured on me. When the acid was poured on me I made a statement at Idah Police Station, At Lokoja I also made statement at the Police Station. Both at Idah and Lokoja, I told them that my light was on when the accused poured acid on me in my room, I also told the Police in my statement that after pouring the acid on me, the accused said yes he was the one who poured me acid as he had promised.”

From her examination in chief, PW1 said appellant woke her up and poured acid on her. Under cross examination confirmed that appellant poured acid on her.

From this, there was evidence upon which the trial Court found that there was acid attack on PW1 perpetrated by the appellant.

The appellant in his submission referred to the statement of PW1 in Exhibit “1” and her testimony before the trial Court reflected at page 41 of the record. The statement of PW1 referred to in Exhibit “I” by the appellant reads “on 20th day of March, 2015 at about 2:00 hours, I was sleeping with my brother’s child called Zura whom I used to sleep with to relief me of my death child when Kashim Abdullahi came into the house room took the said child to the ground and pour the acid on me. I was able to recognize him through the one of my eye which was not affected by the acid. Immediately I woke up, Kashim Abdullahi was running away and I started calling his name but he escaped from the room before people around came for my rescue.”

The testimony of PW1 at page 41 of the record quoted by the appellant reads:

“On 20th day of March, 2015, the accused told me he was going to destroy my life, that was … I was lying in my room sleeping about 2:00am the accused person woke me up. He was with acid and he poured it on me. He said this was what he earlier told me and he has done it. He asked me to now get up and make up and do “guy- that is parade my beauty… what the accused promised to do to me, he did it and spoilt me as I am standing.

As the accused came in and poured the acid on me, I said “Achimi you are the one who has done this to me” he said yes he is the one, that he had promised to do it.”

The argument of the appellant’s counsel is that they are two different accounts of the same incident coming from the same person and ought to be rejected. The Supreme Court in the case of Okanlawon Vs State (2015) 17 NWLR (part 1489) 445 at 457 held that contradiction in the evidence of the prosecution that will be fatal must be substantial. Minor contradiction which does not affect the credibility of witnesses may not be fatal. Contradiction must relate to substance.

Trivial contradiction should not vitiate a trial. A piece of evidence contradicts another if it affirms the opposite of what the other evidence has stated and not when there is a minor discrepancy between them.

In the instant case, one could hardly see the contradiction being complained about. The appellant had the onus to pinpoint his surmised contradictions but failed to do so. The difference in narration of event is not contradiction that is fatal to the case.

Another contradiction argued by the appellant is that while PW1 said there was light in the compound on the fateful day, the PW5 said there was no light (electricity) but moonlight. PW5 in her evidence reflected at page 19 – 20 of the record stated thus:

“By about after one, I came out to ease myself, I went back to bed but could not sleep. After a while, I heard Ladi shouting. Ladi first mentioned my name, she said O. J. they have poured me fire. She again said “Kashim has killed me”‘ I asked what kind of fire it was. She ran and met me where I was lying, my body began to burn me, I pushed her back.”

Under cross examination, she said there was no light on that day but moon light. The point here is that even if PW5 said there was no light in the compound on the fateful night, it is not a contradiction that is material and fundamental in the determination of the guilt of the appellant, since by her evidence produced above, she heard when PW1 mentioned the name of the appellant as the person that poured acid on her, when she said “Kashim has killed me”.

It is also the submission of the appellant’s counsel on contradiction that while PW5 said she had known PW1 for about 20years, PW1 under cross-examination said she does not know PW5.

PW5 is Idakwo Anita. She said O. J. means Ojoma which was the name PW1 called her with, after the acid attack on her (PW1). It is correct under cross examination PW1 said she does not know Idakwo Anita. However it is common that some people are known by their nick name other than their real name. It was not suggested that PW5 was physically in Court when PW1 was asked whether she knows her (PW5) but denied knowing her. PW1 was not also asked of PW5 by her nick name which is the name she is called with PW5 did not deny that she is also called O.J. The appellant did not say that Anita Idokwo is not the person referred to as O. J. by PW1.

The contradiction is not material to create a doubt in the mind of the Court to resolve in favour of the appellant when it is not in dispute that both PW1 and PW5 lived in the same compound at the time of the commission of crime. Moreso the appellant did not challenge the evidence of PW1 and PW5 as the person responsible for the acid attack on PW1.

For a contradiction in the evidence of the prosecution to be essential and affect the decision of the trial Court, the contradiction must be material and fundamental in the determination of the guilt of the accused. The contradiction must create doubt in the mind of the Court to such a degree that the Court believes that the doubt must be resolved in favour of the accused – Kachi vs State (2015) 9 NWLR (part 1464) 213 at 218. See also Ekang Vs State (2001) 11 NWLR (part 723) 1; Obidike Vs State (2001) 17 NWLR (part 743) 601 and Esangbedo Vs State (1989) 4 NWLR (part 113) 57.

In her evidence PW1 recounted that the appellant entered her room around 2:00 am and poured acid on her. On her part, PW5 stated that she was on bed after 1:00 am when she heard PW1 calling her name for assistance and saying “Kashim has killed me.”

It is significant to note that their evidence was not challenged or controverted under cross-examination. A calm examination of their evidence would show that the contradiction if any, is immaterial to the case of the prosecution.

On alibi raised by the appellant, he stated in his statement to the Police Exhibit “P5” thus:

“That on 19/3/2015 I was in my house at Idah at about 0230 hours, steeping when one Danladi Shaibu called me and informed me that somebody was shouting and when people came out they said they poured acid on my former girl friend Ladi Sule and she is calling my name that I am the person that pour acid on her. That the allegation level against me by Ladi Sule is false. Because I did not go out on that faithful day because I was not feeling well and I did not sent any person to pour acid on her.”

In his oral evidence before the Lower Court, at page 63 of the record, the appellant said:

“I was in my room on the night of 19th/20th March, 2015 because I was sick, I was sleeping in the room that night with my wife and two children.”

The appellant by Exhibit “P5″ and his testimony in Court was not consistent with the date of the acid attack in which PW1 was the victim. It is evidence on record that the incident happened on the 20th of March, 2015 and not 19/3/2015 as stated by the appellant in Exhibit “P5”. Alibi is a defence raised by an accused. It is a complete defence if found to be true. The defence simply means that when the offence was committed the accused person was somewhere else, so he certainly could not have committed the offence. However the defence crumbles if there is stronger evidence against it or if after it is investigated it is found to be untrue – Sani Vs State (2015) 15 NWLR (part 1483) 522 at 546. See also Obiode Vs State (1970) 1 all NLR 35; Nwosu Vs State (1976) 6 SC 109 and Odidika Vs State (1977) 2 SC 21.

In the instant case, the defence of alibi would not avail the appellant. This is because the date of incident given by the appellant in Exhibit P5 is not consistent with the date of the acid attack on PW1. There is nothing therefore for the Police to investigate. Having raised same in his evidence at the trial, still with inconsistent date of incident, the prosecution would naturally not be obliged at that late stage of the proceeding to investigate such a plea and would be entitled to rely on the evidence of its witnesses to disprove the alibi. Where the prosecution in this case adduced sufficient, accepted and credible evidence to fix the appellant at the scene of crime at the material time, the plea of alibi would logically be demolished.

The evidence of PW4, the Police investigating officer is to the effect that on 20/3/2015 after obtaining statement from the victim (PW1) at Odoma Clinic, he went back to the office and reported to the DPO. The DPO told him that somebody came to his office that morning to report that he was being accused of pouring acid on his wife. PW4 collected the particulars of the person and in tracing his address, he happened to be the appellant which the victim alleged to have attacked her with acid. His evidence was not challenged or contraverted under cross examination.

PW3 who claimed to be the father of the victim, said in his evidence before the trial Court that after the incident of 20/3/2015, relations of the appellant came to beg him that they will take care of the victim’s health as they do not want any Court case.

The sum of N200,000.00k was paid to him. His evidence was also not challenged. The question here is, if the appellant was not responsible for the attack, why should his relations take responsibility of the victim’s treatment? It only goes to show that the appellant and no other was the perpetrator of the acid attack on PW1, hence the plea and payment for her treatment by his relations to her father.

Evaluation of evidence is the primary duty of the trial Court who saw and heard the witness testify in the witness box. The said Court therefore has the duty to assess the credibility of the witness. See Ali Vs State (2015) 10 NWLR (part 1466) 1 at 12; Babatunde Vs State (2014) 2 NWLR (part 1391) 211 and Usman Vs State (2014) 12 NWLR (part 1421) 207.

In the instant case, contrary to the contention held by the learned counsel for the appellant, the inconsistencies alleged in the evidence of PW1 that is the victim, were insignificant and not substantial to have occasioned a miscarriage of justice. The argument presented for the appellant was that death was not intended but to disfigure the victim to deprive her of “make up” and parading herself “a beauty”.

The question then arises whether the appellant can be held responsible for the acid attack on PW1. This can be inferred with certainty from the evidence that the appellant had a pre-arranged, plan for his attack on PW1.

It is however clear from the evidence of PW1 that at the material time of incidence, the appellant had the acid which he poured on her. Having told her after the attack that he had done what he promised clearly goes to show the scope of his intention.

A crime could be established by all or any of the three ways namely:

1) By direct evidence of an eye witness.

2) By circumstantial evidence.

3) By confessional statement – Famuyiwa Vs State (2018)

5 NWLR (part 1613) 515 at 518. See also Emeka Vs State (2002) 4 NWLR (part 734) 666.

In considering the above requirements, there is established an acid attack on 20/3/2015 on PW1 in her room. It is clear from her evidence that the appellant is the perpetrator of the attack.

The uncontroverted evidence of the prosecution witnesses especially PW1, PW3 and PW4 and the circumstantial evidence, established conclusively that the appellant was the one who attacked PW1 with acid.

The appellant’s contention that the evidence placed before the trial Court was not properly evaluated cannot be correct. The findings of the trial Court cannot be tempered with as there is no miscarriage of justice occasioned.

A charge must be proved beyond reasonable doubt before there can be a conviction. In Miller Vs Minister of Pensions (1947) 2 All ER 372, Lord Denning explained proof beyond reasonable doubt when he said that it:

“Does not mean proof beyond shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so 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 of that will suffice.” 

Applying the above facts of this case, I am satisfied that the case against the appellant has been properly evaluated, as proved beyond reasonable doubt.

Issue one is resolved in favour of the respondent and against the appellant.

ISSUE TWO

“Whether there was proper identification of the appellant by PW1, the victim.”

The contention of the appellant’s counsel is that since the incident took place in the night, there was need that the appellant was properly identified as the person seen committing the offence.

Relying on the case of Ndidi vs State (2007) 5 SCJ 274 at 288, it submitted that in view of the statement and the evidence of the appellant that he was somewhere else, the trial Court ought to have exercised caution in ascribing probative value to the evidence of recognition by PW1. That the testimony of PW1 is contradictory which puts the quality of identification into question.

Referring to Section 39 of the Evidence Act, 2011, learned counsel submitted that the Lower Court was in error when it held that the mentioning of the name of the appellant by PW1, immediately after the substance was splashed on her was a dying declaration. He argued that PW1, by her own showing said the substance was splashed on her so that she could not “make up” and therefore the attack was not to kill her. Relying on the case of Ezeuko Vs State (2016) All FWLR (part 831) 1529 at 1570, it is submitted that dying declaration has no relevance in this case. We are urged to resolve in favour of the appellant.

Responding, learned counsel for the respondent argued that the victim of acid attack PW1, had testified to the effect that not only that she saw the appellant when he poured acid on her, but that there was even a conversation between her and the appellant. That the effect of her evidence in chief and under cross examination, not only fixed the appellant to the crime, but dispels the contention of the appellant that he was not properly identified by the victim.

That the absence or presence of electricity could have been an issue if identification was unequivocal. That from the evidence of PW1 there was no shred of doubt as to the identity of the appellant.

We are urged to uphold the verdict of the Lower Court and dismiss the appeal.

The essence of reply brief is to respond to new points raised in the respondent’s brief. It is not a repetition or improvement of arguments in the appellant’s brief. See Samuel Iheanacho & Anor Vs Emmanuel Iwuamadi & Anor (2013) LPELR 20689; Ochemaje Vs State (2008) 15 NWLR (part 1109) 15 and Danladi Vs Dangiri (2015) 2 NWLR (part 1442) 124.

In the instant case, the appellant’s reply brief is a repetition of what has already been canvassed in the main brief which is unnecessary. The reply brief is not helpful to the appellant and it is discountenanced.

Indeed, both the appellant and PW1 did not dispute knowing each other before the incidence. Both of them testified to the fact that they lived together for about eight years as husband and wife and even had an issue who later died. It is also in evidence, that the house where the incidence happened was rented for PW1 by the appellant. It is common knowledge that even in darkness one could recognize the voice of someone he lived with for about eight years. The appellant and PW1 being ex-husband and wife, it is underestimating to say that one could not recognize the voice of the other even in darkness.

Identification is the heart of a criminal trial. It connotes a whole series of facts and circumstances for which a witness or witnesses associate an accused person with the commission of the offence charged. See Kachi vs State (2015) (supra) at 218 – 219; Archibong Vs State (2006) 14 NWLR (part 1000) 249 and Ukpabi Vs State (2004) 11 NWLR (part 884) 439.

In the instant case, the evidence of PW1 has fixed the appellant at the scene of crime. Consequently the appellant was linked to the commission of crime of acid attack on PW1. In fact, the appellant by his own showing has proved his guilt when he went to the police to report that he was being accused of pouring acid on his ex-wife before the matter was officially reported. There is no dispute as to the identity of the perpetrator of the crime in this case, that is why the appellant’s relations pleaded with the victim’s father and paid N200,000.00 for her treatment.

Issue two is resolved in favour of the respondent and against the appellant.

When a trial Court has carried out its assignment satisfactorily, an appeal Court shall be left with no option but to affirm such a decision. To do otherwise with institutionalize miscarriage of justice – Ali Vs State (supra).

Therefore, an appellate Court will only interfere with the findings of the trial Court on credibility of witnesses where it is manifestly seen to be unreasonable or otherwise faulted.

In the instant case, the judgment of the trial Court cannot be faulted. The end result is that the appeal has failed. It is unmeritorious and it is dismissed.

The judgment of the Lower Court delivered on the 31st day of May, 2017 which sentenced the appellant to Fifteen years imprisonment is affirmed.

YAHAYA, J.C.A.

I have read in advance the judgment of my learned brother Hassan JCA just delivered. I agree with the reasoning and conclusion therein. This appeal has no merit and I too dismiss it and affirm the judgment of the Lower Court.

IGE, J.C.A.

I agree.

Appearances:

U. O. Onaja, Esq. with him, E. A. Mejabi and O. A. Oguah-Oshoke For Appellant(s)

Abdulwahab Muhammed with him, Ibrahim Bashir For Respondent(s)