BALA V THE STATE

BALA V THE STATE


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

ON TUESDAY, 14TH JULY, 2015


Appeal No: CA/K/377/C/2014

CITATION:

Before Their Lordships:

ISAIAH OLUFEMI AKEJU, JCA

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA

AMINA AUDI WAMBAI, JCA


BETWEEN

ABDULMUMINI BALA
(APPELLANT)

AND

THE STATE
(RESPONDENT)


PRONOUNCEMENT


A. CRIMINAL LAW AND PROCEDURE
1. Offence of Culpable Homicide Punishable with Death – The ingredients the prosecution must establish in a charge of culpable homicide punishable with
Ingredients the prosecution must prove to establish the offence of culpable homicide punishable with death

The ingredients that the prosecution must establish in a charge of culpable homicide punishable with death as alleged in this case are that the death of the deceased actually occurred; that the death occurred through the act of the accused had knowledge that death was the probable consequence of his act that led to the death. See Ogbu V. State (2007) 5 NWLR (Pt.1028) 635; Adava V. State (2006) 9 NWLR (Pt.984) 152; Igago V. The State (1999) 14 NWLR (Pt.637) 1 Durwode V. State (2000) 15 NWLR (Pt.691) 467. Per AKEJU, JCA. read in context

2. Identification Parade – How an identification parade is not a sine qua non to conviction
Whether an identification parade is a prerequisite to conviction

… The law is well settled that an identification parade is not a sine qua non to conviction. See Ukpabi V. State (2004) 34 WRN 133; Balogun V. A. G. Ogun State (2002) 6 NWLR (Pt. 763) 512; Afolalu V. The State (2010) 16 NWLR (Pt.1220) 84; Madagwa V. The State (1988) 5 NWLR (Pt. 92) 61. Per AKEJU, JCA. read in context

3. Guilt of an Accused Person – The means of proving the guilt of an accused person
How to establish/prove the guilt of an accused person

It has been rightly submitted by the learned Counsel for the Respondent that the guilt of an accused person may be proved by the following means or by anyone of them; the oral account of eye witness of the crime; the confessional statement of the accused person, and circumstantial evidence. See Haruna V. The Attorney General of Federation (2012) Vol. 3 MJSC (Pt.II) 77. A conviction will be sustained once the prosecution adduce evidence through any of these means to prove the charge. Per AKEJU, JCA. read in context

B. EVIDENCE
4. Burden of Proof – The burden placed on the prosecution in criminal cases
On whom lies the burden of proof in criminal cases

… the burden of proving the guilt of a person alleged of the commission of a crime rests on the prosecution that has made the allegation and the burden does not shift save in the recognized exceptions. This burden has been concretized by the provision of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Per AKEJU, JCA. read in context

5. Proof Beyond Reasonable Doubt – How proof beyond reasonable doubt does not translate to proof beyond all doubt
Whether proof beyond reasonable doubt means proof beyond all shadow of doubt

It should be stated here that though the prosecution is required to prove a case beyond reasonable doubt, this burden and standard does not translate to proving beyond all doubt or beyond shadow of doubt. The prosecution is thereby required to put before the Court such credible evidence that is strong enough to establish the ingredients of the alleged offence as to leave only a remote probability. See Akalezi V. State (1993) 2 NWLR (Pt.273) 1; Obue V. State (1976) 2 SC 141; Lori V. State (1980) 8 – 11 SC 81. Per AKEJU, JCA. read in context

6. Evidence of an Eye Witness – Position of the law where an eye witness omits to mention at the earliest opportunity the name(s) of the person(s) seen committing an offence

I should state that I have taken time to study and understand the cases cited by the learned Counsel and it is clear that they emphasise that in a situation where an eye witness omits to mention the name(s) of the persons seen committing an offence a Court must be careful in accepting the evidence of such a witness given later implicating the accused person unless a satisfactory explanation is given. In line with those cases cited by the Appellant’s Counsel, the same principle was also stated in Abu Isah V. The State (2008) 4 – 5 SC (Pt. 1) 176, (2008) ALL FWLR (Pt. 443) 1243 at 1250 per Akintan JSC that;

“The position of the law therefore is that when eye witness omits to mention at the earliest opportunity the names of the persons he said he saw committing an offence, a Court must be careful in accepting his evidence given later and implicating other persons unless a satisfactory explanation is given as to why the names were not mentioned before or at the earliest opportunity. Thus, if a complainant or an eye witness to a crime knew the accused persons before the commission of a crime and had omitted to mention their names to the police when he made the complaint or written statement to the police,… failure by the trial Court to take the omission into consideration before deciding whether the evidence of such a complainant or witness against the accused persons was true or not would amount to a non – direction on material evidence in favour of such accused persons and such non – direction would have necessarily occasioned a miscarriage of justice. An accused person would under such circumstance be entitled to an acquittal and discharge.” Per AKEJU, JCA. read in context

7. Calling of Witnesses – The law on the witnesses the prosecution is bound to call
Whether in a criminal trial, a host of witnesses is required by the prosecution to achieve a proof beyond reasonable doubt

On failure to call particular witness in this case, the law has been settled that the prosecution is only bound to call the witness or witnesses necessary or required to prove the case and not all or a host of witnesses, it is sufficient if the evidence of the witnesses called can sustain the charge. See Ugwumba V. State (1993) 5 NWLR (pt 296) 660; Theophilus V. State (1996) 1 NWLR (pt. 423) 139; Effiong V. State (1998) 8 NWLR (pt.562) 362; Obue V. The State (1976) 2 SC 141; Akpan V. The State (1991) 3 NWLR (Pt.182) 695; Akinyemi V. State (1999) 6 NWLR (Pt. 607) 449. Per AKEJU, JCA. read in context

8. Proof Beyond Reasonable Doubt – The test of reasonable doubt
Whether proof beyond reasonable doubt means proof beyond all shadow of doubt

It must be noted and remembered that the burden imposed on the prosecution of proving the guilt of an accused beyond reasonable doubt requires the prosecution to prove the ingredients of the offence not beyond the shadow of doubt. See English case of Miller V. Minister of Pensions (1947) 2 All ER 372 where Lord Denning stated that proof beyond reasonable doubt does not mean proof beyond shadow of doubt and that if the 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 the least probable, the offence is proved. See the Nigerian cases of Shurumo V. State (2010) 19 NWLR (Pt.1226) 73; Ugwanyi V. Federal Republic of Nigeria (2012) Vol.3 MJSC (Pt. II) 111; Bakare V. State (1987) 1 NWLR (Pt.52) 579; As expressed by Tobi JSC in Abeke V. State (2007) All FWLR (Pt. 366) 644 at 659:

“Reasonable doubt is doubt founded on reason which is rational devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative. The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There could be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence a Court of law is entitled to convict even though there are shadows of doubt here and there.” Per AKEJU, JCA. read in context

9. Burden of Proof/Standard of Proof – On whom burden of proof lies on in a criminal case how it must be proven
General principles of the burden and standard of proof in a criminal trial

The law has become settled as submitted by the learned Counsel for the Appellant and conceded by the Respondent’s Counsel that the burden of proving the guilt of a person alleged of the commission of a crime rests on the prosecution that has made the allegation and the burden does not shift save in the recognized exceptions. This burden has been concretized by the provision of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

Also by Section 135 (1) of the Evidence Act, 2011, if the commission of a crime by a party to any proceeding is directly in issue, in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
The combined effect of these two provisions is that the burden of proof is on the prosecution to establish the allegation of crime and the standard of the proof is beyond reasonable doubt. Therefore in any criminal trial the prosecution must prove the guilt of the accused beyond reasonable doubt to secure conviction. See Aigbadion V. State (2 0) 4 SC 1; Oseni V. State (2012) 2 MJSC (Pt. II) 123; Nwosu V. The State (1998) 8 NWLR (Pt. 562) 433 Bakare V. The State (1987) 3 SC 1; R.V. Lawrence (1932) 11 NLR 6; Okonji V. The State (1987) 1 NWLR (Pt. 52) 659; Otki V. Attorney General Bendel State (1986) 2 NWLR (Pt.24) 148; State V. Ogbubunjo (2001) 2 NWLR (Pt. 698) 576. Per AKEJU, JCA. read in context


LEAD JUDGMENT DELIVERED BY AKEJU, JCA


This appeal is against the judgment of the High Court of Kastina State Dustin-ma Judicial Division delivered on 12/5/14 in Charge No. KTH/DM/3C/2012 dated 10th June, 2012. The Appellant and two other persons, Abdullahi Aliyu and Abdullahi Yusuf were in that one Count charge alleged of committing the offence of culpable homicide punishable with death under Section 221 of the penal code in that on or about the 22nd day of September, 2011 at about 001 hours while in company of other persons at large, they caused the death of Alhaji Garba Bello at Rugu forest, Safana Local Government Area of Katsina State by jointly beating and cutting him on the head and all over his body with sticks and axe which cause him injuries that led to his death.

The three accused persons pleaded not guilty to the charge whereupon the prosecution adduced oral and documentary evidence through seven witnesses while each of the three accused persons gave evidence in defence of the charge but did not call any other witness. The two learned Counsel at the trial submitted written addresses which they subsequently adopted. The learned trial judge found the accused persons guilty as charged, convicted them and sentenced each of them to death under Section 221 of the Penal code.

The 2nd accused, Abdulmumin Bala who was dissatisfied with the judgment of the High Court of Kastina State aforesaid commenced the instant appeal through the Notice of Appeal dated 21/7/14 but filed on 22/7/14 with 6 grounds of appeal. In this Court, the Appellants’ Brief of Argument settled by J.J. Usman Esq. was filed on 9/9/14 while the Respondents’ Brief prepared by Murtala Aliyu Kankia Esq. Assistant Director, Public Prosecutor, Ministry of Justice Kastina State was filed on 10/10/14. The briefs were adopted at the hearing of the appeal and relied upon as the argument of the respective parties.

The learned Counsel for the Appellant formulated three issues for determination as follows: –

1. Whether the learned trial judge was right when his lordship held that the prosecutor has proved its case beyond reasonable doubt against the Appellant.

2. Whether the learned trial judge was right when his lordship held that failure of the prosecution to tender the confessional statement of the Appellant was not fatal to the prosecution’s case.

3. Whether the learned trial judge was right when his lordship held that the Appellant actually intended to cause the deceased’s death thereby convicted the Appellant for the offence of culpable homicide punishable with death and sentenced him to death.

The above three issues were reproduced by the learned Counsel for the Respondent in the Respondent’s brief and they were adopted as the issues for determination. This appeal will therefore be considered and determined on the basis of those three issues formulated by the Appellant and adopted by the Respondent.

The learned Counsel for the Appellant argued issues 1 and 3 together and argued that Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999

(as amended) has provided that every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty by which provision the burden of proving the charge is on the prosecution and must prove its case beyond reasonable doubt because there is a presumption of innocence in favour of an accused person. The cases of Okoro V. State (1988) NWLR (Pt. 94) 255; Olowu V. Nigerian Navy (2007) ALL FWLR (pt. 350) 1278; Williams V. State (1992) NWLR (Pt. 261) 515; Alabi V. State (1993) 7 NWLR (pt.307) 511; Solola V. State (2005) 5 SC (Pt. 1) 135; Bakare V. State (1987) 3 SC 1; Aruna V. State (1990) NWLR (pt. 155) 125 were cited on this principle.

It was submitted that the offence of culpable homicide punishable with death being a capital offence required a high degree of proof; Ikem V. State (1985) 1 NWLR (Pt. 2) 378. To sustain a charge of murder, the prosecution argued that the ingredients stated in the case of Alewo Abogede V. The State (1996) 6 NWLR (Pt. 448) 270 must be removed and they must be proved conjunctively.

In the instant case, the learned Counsel contended the prosecution proved through the evidence of the PW2 and PW5 that the deceased had died but it was not cogently established through evidence that the death was as a result of the act, omission or commission of the Appellant that caused the death as the PW 2 and PW5 failed to report the incident to the Police or to mention the name of the Appellant to the Police at the earlier possible time and this is fatal to the prosecution’s case; Abudu V. State (1985) NWLR (pt.1) 55; Ebri V. State (2004) 11 NWLR (pt.885) 589. It was submitted that this failure to report to Police or to mention the name of the Appellant at the earliest possible opportunity entitles the Appellant to be discharged and acquitted; Udeh V. State (2001) FWLR (Pt. 77) 1032; Ani V. State (2009) NWLR (Pt.1168) 443.

It was contended that in the instant case, the only instance the PW 2 and PW5 mentioned the Appellant as one of the attackers of the deceased was in the course of their evidence in Chief though they claimed to know the Appellant before the incident and to have witnessed the commission of the offence but and none of the witnesses either reported the matter to the police or mention the name of the Appellant as one of those who killed the deceased.

The learned Counsel submitted that where the accused person has denied the existence of the incident, the manner of reporting the matter becomes very material and where this manner of reporting is not well established, the accused, is entitled to be discharged and acquitted; Dagayya v. The State (2006) 7 NWLR (Pt. 980) 637; Udosen V. The State (2007) 4 NWLR (pt. 1023) 125.

It was contended that in the instant case the PW1 stated that it was the D.C.O. Mr. Yusuf Muazu (ASP) who informed him that he received a phone call from one Alhaji Naiya that the PW2 said his father was killed but neither the D.C.O who received the call nor his informant testified at the trial. The learned Counsel submitted that failure to call these people who are vital witnesses is fatal to the case of the prosecution; Opayemi V. State (1985) 2 NWLR (Pt. 5) 101.

It was submitted that the Appellant was arraigned and convicted squarely upon mistaken identity and that where the quality of the evidence of identification of the accused is poor, he should be acquitted unless other Evidence exists to support the identification; Ikaria V. State (2013) All FWLR (pt. 671) 1463. It was contended that the Appellant testified on behalf of himself at the trial and his evidence was neither shaken under cross examination nor contradicted and the Court should have believed same but the learned trial judge believed the evidence of the prosecution. It was submitted that where the evidence of the prosecution has not established a case against an accused person, such an accused person is not entitled to give evidence in his defence and he would still be entitled to an acquittal. It was contended that the case was not proved against the Appellant and the trial Court was wrong to have convicted him on an unsubstantiated allegation.

In response to the foregoing arguments, the Respondent’s Counsel conceded that the burden of proving a criminal allegation is on the prosecution which does not shift and that the accused person enjoys a presumption of innocence until he is proved guilty.

The learned Counsel however contended that the prosecution called 7 witnesses in the instant case to establish the allegation of culpable homicide against the Appellant and among these witnesses are PW 2 and PW 5 who gave a graphic account of how the deceased was attacked and killed by the Appellant and other persons and their testimonies were never discredited or impeached under cross examination. It was submitted that a Court has the duty to accept and act on evidence that is neither challenged nor controverted; Ada V. State (2008) 13 NWLR (Pt. 1103) 149. It was submitted also that upon the dispassionate evaluation by the learned trial judge of the evidence adduced in this case and making of findings therefrom, the learned judge was bound to accept and act on the evidence of the prosecution; Idiok V. State (2008) 13 NWLR (Pt. 1104) 225; Ndidi V. State (2005) 17 NWLR (Pt. 953) 17.

The learned Counsel contended that the prosecution in the instant case proved all the essential ingredients of the offence alleged against the Appellant beyond reasonable doubt. The ingredients of the offence are that the deceased had died (2) that the deceased’s death was occasioned by the act of the accused and (3) that the act or omission of the accused was intentional and with knowledge that death or grievous bodily harm was the probable consequence; Adekunle V. The State (2006) 26 NSCQR 1317.

It was submitted that the death of the deceased in the instant case was proved through the testimony of witnesses and the Exhibits 1A, 1B and 1C while the evidence of PW2 and PW5 established that the deceased died through the joint act of the Appellant and other persons now at large. On the third ingredient, the evidence that by cutting and beating the deceased with matchets and sticks, confirms that the accused persons must have intended to cause the death of the deceased and they knew the probable consequences of their act; Olayinka V. The State (2007) NWLR (Pt.1040) 561.

The Respondent’s Counsel argued that the contention of the Appellant’s Counsel that the eye witnesses in the instant case failed to promptly report to the Police and to mention the names of the accused persons at the earliest opportunity is inapplicable to this case and not supported by the evidence as adduced by the witnesses. It was argued that the facts of the cases cited and relied upon show that they are distinguishable from the instant case where two witnesses narrated how their father was killed in the forest and based on their level of understanding their usual mode of reporting such incident is to report to their traditional ruler who will then link them up and report the incident to the Police at the earliest opportunity which was done in this case and the report was promptly made by the traditional ruler and the names of the accused persons were mentioned at the earliest opportunity.

It was argued by learned Counsel that the prosecution called all the two witnesses that are relevant and vital to prove the case and these are the eye witnesses that testified as PW2 and PW5 and whose account of how the offence was committed the learned trial judge believed.

On the identification of the Appellant the learned Counsel submitted that the decision in Ikaria V. The State (Supra) on which the Appellant’s Counsel relied is not of the same facts with the instant case wherein the PW2 and PW5 who were eye witnesses to the commission of the offence identified the Appellant and they were never discredited nor was their evidence of identification challenged during cross examination. It was submitted that in the instant case where identity of the Appellant was by recognition and the Appellant was already known to the witness before the date of the incident, an identification parade was even unnecessary; Archibong V. State (2006) 28 NSCQR 118.

We were urged to resolve the issues in favour of the Respondent.

The law has become settled as submitted by the learned Counsel for the Appellant and conceded by the Respondent’s Counsel that the burden of proving the guilt of a person alleged of the commission of a crime rests on the prosecution that has made the allegation and the burden does not shift save in the recognized exceptions. This burden has been concretized by the provision of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

Also by Section 135 (1) of the Evidence Act, 2011, if the commission of a crime by a party to any proceeding is directly in issue, in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

The combined effect of these two provisions is that the burden of proof is on the prosecution to establish the allegation of crime and the standard of the proof is beyond reasonable doubt. Therefore in any criminal trial the prosecution must prove the guilt of the accused beyond reasonable doubt to secure conviction. See Aigbadion V. State (20 ) 4 SC 1; Oseni V. State (2012) 2 MJSC (Pt. II) 123; Nwosu V. The State (1998) 8 NWLR (Pt. 562) 433 Bakare V. The State (1987) 3 SC 1; R.V. Lawrence (1932) 11 NLR 6; Okonji V. The State (1987) 1 NWLR (Pt. 52) 659; Otki V. Attorney General Bendel State (1986) 2 NWLR (Pt.24) 148; State V. Ogbubunjo (2001) 2 NWLR (Pt. 698) 576.

In the instant case, the Appellant and two other persons were charged for committing culpable homicide punishable with death under Section 221 of penal Code in that on or about the 22nd day of September, 2011 at about 001 hours, they caused the death of Alh. Garba Bello by jointly beating and cutting him on the head and all over his body with sticks and axe causing him injuries that led to his death, an act which they did with the knowledge that death would be the consequence of.

It should be stated here that though the prosecution is required to prove a case beyond reasonable doubt, this burden and standard does not translate to proving beyond all doubt or beyond shadow of doubt. The prosecution is thereby required to put before the Court such credible evidence that is strong enough to establish the ingredients of the alleged offence as to leave only a remote probability. See Akalezi V. State (1993) 2 NWLR (Pt.273) 1; Obue V. State (1976) 2 SC 141; Lori V. State (1980) 8 – 11 SC 81.

The ingredients that the prosecution must establish in a charge of culpable homicide punishable with death as alleged in this case are that the death of the deceased actually occurred; that the death occurred through the act of the accused had knowledge that death was the probable consequence of his act that led to the death. See Ogbu V. State (2007) 5 NWLR (Pt.1028) 635; Adava V. State (2006) 9 NWLR (Pt.984) 152; Igago V. The State (1999) 14 NWLR (Pt.637) 1 Durwode V. State (2010) 15 NWLR (Pt.691) 467.

On the ingredients, the Appellant’s Counsel at page 9 of the Appellant’s brief stated that;

“In the instant case, although there is no medical evidence to establish the death of the deceased however by Exhibit 1A – 1C and the evidence of PW2 and PW5, it can be seen that the deceased is dead. However, there is no cogent or reliable evidence to show that it was the act, or omission of the Appellant that caused the death of the deceased.”

What the foregoing statement by the learned Counsel translates to is that it is the 2nd and 3rd ingredients of the offence of culpable homicide that are in contention in the appeal.

The contention of the Appellant’s Counsel on these two issues as correctly captured by the Respondent’s Counsel at page 3 of the record of appeal are based on the failure of the eye witness to report to the police or mention the name of the Appellant at the earliest opportunity; failure of the prosecution to call all the witnesses listed in the proof of evidence; and non – identification of the accused person by the prosecution witnesses.

On the contention that none of the PW2 or PW5 who claimed to be eyewitnesses in the instant case reported the matter to the police or mentioned the name of the Appellant to the police at the earliest opportunity which failure is said to be fatal to the case of the prosecution in that the credibility to be attached to the evidence of the witness(es) will reduce especially where the witness(es) claim to have known the accused at the time of the incident, the Appellant’s counsel cited and relied on a number of judicial decisions which I had earlier on stated in this judgment.

I should state that I have taken time to study and understand the cases cited by the learned Counsel and it is clear that they emphasise that in a situation where an eye witness omits to mention the name(s) of the persons seen committing an offence a Court must be careful in accepting the evidence of such a witness given later implicating the accused person unless a satisfactory explanation is given.

In line with those cases cited by the Appellant’s Counsel, the same principle was also stated in Abu Isah V. The State (2008) 4 – 5 SC (Pt. 1) 176, (2008) ALL FWLR (Pt. 443) 1243 at 1250 per Akintam JSC that;

“The position of the law therefore is that when eye witness omits to mention at the earliest opportunity the names of the persons he said he saw committing an offence, a Court must be careful in accepting his evidence given later and implicating other persons unless a satisfactory explanation is given as to why the names were not mentioned before or at the earliest opportunity. Thus, if a complainant or an eye witness to a crime knew the accused persons before the commission of a crime and had omitted to mention their names to the police when he made the complaint or written statement to the police,… failure by the trial Court to take the omission into consideration before deciding whether the evidence of such a complainant or witness against the accused persons was true or not would amount to a non – direction on material evidence in favour of such accused persons and such non – direction would have necessarily occasioned a miscarriage of justice. An accused person would under such circumstance be entitled to an acquittal and discharge.”

In the instant case the PW 2 and PW 5 allegedly gave eye witness account of the killing of the deceased Alhaji Garba Bello but on the mode of reporting the crime the PW 1 CPL, Hassan De Gold of Divisional Police Headquarters, Safana said it was one Mr. Yusuf Muazu the Divisional Crime Officer (DCO) that said on 2 /9/ 011 that he received a phone call from representative of District head of Zakka that one Sani Alhaji Garba told him that his father was killed and some policemen went to the scene of the crime and called Alhaji Garba Bello who identified the corpse and one axe stained with blood and one white sack stained with blood.

According to this witness on page 13 of the record of appeal,

“On 29/09/2011 the Batsari Policemen called us to go and collect suspect by name Aminu Yusuf which we did, but upon interrogation he denied the offence.”

Sani Garba, a rearer of animals who lived in Gwammatawa village in Batagarawa LGA was the PW 2. At page 2l of the record he said

“What f know is that about a year ago one Audu Danlamido together with some other persons namely Panyo Yusuf Aliyu Abdushade Aliyu Shehu Duwa, Lawalli Mashshale, Sani Shadari and Mumini Bala came in the night carrying weapons (Matchets and sticks) and met Alhaji Garba in his room, Abu Shade stangled him while the others hit him with their matchets and sticks… We then reported the incident to the village head of Illela who later informed the Zakka District Head. The District Head Zakka direct us to the D.P.O Safana Police Station…”

The 2nd accused stated under cross examination that he knew the accused persons as they grew up together and that he gave the name of the 1st accused and all the suspects to the village head, Illela.

PW 2 in this case who was called as an eye witness did not report the commission of the crime to the Police, he reported to the village head who in turn informed the Zakka District Head who directed them to the D.P.O Safana Police station who went with the village head Illela to convey the corpse to the General Hospital.

The evidence of the PW3 and PW4 show that the accused persons were later arrested by police in Zamfara State from where the Katsina State police went to collect them on 01/10/11.

According to the PW4 on page 28 of the record of appeal;

“On 13/10/11, an identification parade was conducted where the two sons of the deceased identified the 1st and 3rd Accused persons as the persons who beat and killed their father”.

The PW5, another eye witness, who was a son of the deceased Alhaji Garba Bello said at page 31 of the record on the report of the case that “… we then informed the Illela village head who referred us to the District Head Zakka. The District Head referred us to D.P.O Safana. The D.P.O sent some of his men to the scene who took the photograph of the deceased. The foregoing evidence of the witnesses show that the PW 2 and PW5 promptly reported the incident to the village head who also promptly reported to the police and investigation commenced instantly where upon the accused persons were subsequently arrested and identified by the PW 2 and PW 5.

On failure to call particular witness in this case, the law has been settled that the prosecution is only bound to call the witness or witnesses necessary or required to prove the case and not all or a host of witnesses, it is sufficient if the evidence of the witnesses called can sustain the charge. See Ugwumba V. State (1993) 5 NWLR (pt 296) 660; Theophilus V. State (1996) 1 NWLR (pt. 423) 139; Effiong V. State (1998) 8 NWLR (pt.562) 362; Obue V. The State (1976) 2 SC 141; Akpan V. The State (1991) 3 NWLR (Pt.182) 695; Akinyemi V. State (1999) 6 NWLR (Pt. 607) 449.

The failure to call the DCO as a witness in this case as contended by the Appellant’s Counsel does not in my view shake the fact that the accused persons were reported and their names were mentioned both promptly and they were arrested by the police.

Apart from the recognition of the accused persons, Appellant inclusive by the PW 2 and PW 5 at the scene of the crime, there was identification parade which was well and procedurally organized as stated by the PW 7 and at which the Appellant and other accused persons were identified. The prosecution tendered the forms completed after the identification parade as Exhibits 2A, 2B, 2C, 2D and 2E while the photographs taken there at were tendered as Exhibits 3A, 3B, 3C, 3D and 3E respectively.

It is instructive to state that this identification conducted amounted to double assurance as it was ordinarily unnecessary in the circumstances of this case where the two eye witnesses claimed to have known the accused persons before the date of commission of the crime and they were recognized by the aid of their torchlight. The law is well settled that an identification parade is not a sine qua non to conviction. See Ukpabi V. State (2004) 34 WRN 133; Balogun V. A. G. Ogun State (2006) 6 NWLR (Pt. 763) 512; Afolalu V. The State (2010) 16 NWLR (Pt.1220) 584; Madagwa V. The State (1988) 5 NWLR (Pt. 92) 61.

The Appellant and other accused persons were not only recognised by the PW 2 and PW 5, they were also properly identified by them.

On the second ingredient of the offence of culpable homicide punishable with death under Section 221 of Penal Code which is whether it was the act of the accused persons that led to the death of the deceased, the eye witness account of the PW2 and PW5 undoubtedly establish that it was the Appellant and other persons that came to attack the deceased with axe, strangulated him and he died on the spot. The evidence on record has therefore proved this second ingredient.

By attacking and cutting the deceased with axe and other weapons and strangulating him, one does not need a soothsayer to know that the attackers knew or should know that the probable consequence of their action was death and that indeed they actually intended to cause the death of the deceased. The prosecutor thus established the three ingredients of the offence of culpable homicide punishable with death under Section 221 of the Penal Code against the Appellant and his co-accused.

The third issue is whether failure by the prosecution to tender the statement of the Appellant is fatal to the prosecution’s case.

The learned Counsel for Appellant argued that the Appellant denied the commission of the offence while the statement was listed as one of the documents to be tendered but was not tendered. This non-tendering of the statement according to Counsel raises a presumption of withholding evidence and urged us to invoke Section 167 (d) of Evidence Act, 2011 citing Mandilas V. Karaberis (1958) SCNLR 335; Adeyemi V. C.O.P (1961) All NLR 387; Abudu V. State (1985) 1 NWLR (Pt. 1) 55.

It was argued that if the prosecution had tendered the Appellant’s statement it would have been unfavorable to the prosecution. The learned Counsel for Respondent argued that the only duty of the prosecution is to prove the charge beyond reasonable doubt which may be done through direct evidence of eye witnesses who saw the accused person committing the crime; confessional statement or circumstantial evidence; Nigeria Army V. Ibe (2007) 32 p. 258 (incomplete).

It has been rightly submitted by the learned Counsel for the Respondent that the guilt of an accused person may be proved by the following means or by anyone of them; the oral account of eye witness of the crime; the confessional statement of the accused person, and circumstantial evidence. See Haruna V. The Attorney General of Federation (2012) Vol. 3 MJSC (Pt.II) 77. A conviction will be sustained once the prosecution adduce evidence through any of these means to prove the charge.

In the instant case the prosecution relied on evidence of eye witnesses and not on the confession of the accused. Having successfully established the charge on the basis of this means the conviction of the Appellant cannot be impugned for the failure of the prosecution to tender the statement of the Appellant which was not relied upon.

The Appellant, Abdulmumin Bala gave evidence as the DW 2 on page 56 of the record. He said when he was confronted with the commission of the offence of culpable homicide he denied committing the offence and that he did not know who was responsible. The learned trial judge considered the defence or alibi raised by the accused persons and rejected each of them.

It must be noted and remembered that the burden imposed on the prosecution of proving the guilt of an accused beyond reasonable doubt requires the prosecution to prove the ingredients of the offence not beyond the shadow of doubt. See English case of Miller V. Minister of Pensions (1947) 2 All ER 372 where Lord Denning stated that proof beyond reasonable doubt does not mean proof beyond shadow of doubt and that if the 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 the least probable, the offence is proved. See the Nigerian cases of Shurumo V. State (2010) 19 NWLR (Pt.1226) 73; Ugwanyi V. Federal Republic of Nigeria (2012) Vol.3 MJSC (Pt. II) 111; Bakare V. State (1987) 1 NWLR (Pt.52) 579; As expressed by Tobi JSC in Abeke V. State (2007) All FWLR (Pt. 366) 644 at 659:

“Reasonable doubt is doubt founded on reason which is rational devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative. The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There could be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence a Court of law is entitled to convict even though there are shadows of doubt here and there.”

Based on my foregoing consideration of the three issues I resolve them against the Appellant and I find and hold that the prosecution proved the case of culpable homicide punishable with death against the Appellant. I hold therefore that the Appellant was properly found guilty by the trial Court and convicted accordingly, the consequence of which is that the death sentence imposed on him is well grounded.

I dismiss the appeal as lacking in merit and I affirm the decision of the trial High Court of Katsina State.

ADEFOPE-OKOJIE, JCA

I have read in advance the judgment of my learned brother, ISAIAH OLUFEMI AKEJU, J.C.A., I am in agreement with His Lordship’s decision that the Appellant was rightly found guilty and properly convicted by the trial Court.

I also dismiss this appeal as lacking in merit and affirm the decision of the lower Court.

WAMBAI, JCA

I have read in advance, the lead Judgment delivered by my learned brother, ISAIAH OLUFEMI AKEJU, J.C.A. I am in agreement with the sound reasoning and conclusion reached that the appeal lacks merit and is entitled to be dismissed.

I also dismiss the appeal and affirm the Judgment of the Lower Court.

Appearances:

J.J.Usman, Esq. For Appellant(s)

Murtala Aliyu Kankia, Esq. (Assistant Director Public Prosecution) Ministry of Justice, Katsina State. For Respondent(s)