Yusuf Ibrahim Garko V. The State (2006)
LawGlobal-Hub Lead Judgment Report
BA’ABA, J.C.A.
The appellant was arraigned before Mahuta, C.J, of the Katsina State High Court, sitting at Katsina Judicial Division, Katsina for an offence under section 225 of the Penal Code. At the conclusion of the trial, the learned trial Chief Judge, convicted the appellant as charged and sentenced him to a 5 years term imprisonment.
The facts of the case are in the following brief narrative. Following a report of the theft of a vespa motorcycle made to the Bakori Divisional Police Station, the accused who was then the officer in charge of the Police Station in company of other police officers under his command searched the house of the deceased on suspicion that he was giving thieves shelter and helping them to dispose of stolen properties. The deceased was arrested and taken to the Bakori police station on 10/8/97 and subsequently arraigned before Jargaba Area Court on 11/8/97. The court ordered that the deceased be remanded in prison custody. But inspite of the court order the deceased was taken back to the police station where he was detained.
According to P.W.2, Mohammed Gali, while they were in the Bakori Police station with the deceased, they were brutally interrogated by the accused and other policemen. As a result of the interrogation, the deceased fell ill with blood coming out of his nose, ears and penis because of the beating they received with a cable wire after being hanged upside down. The deceased, Hakimi Rabiu, later died in the police station as confirmed by the appellant who testified as D.W.1, at the trial court, leading to the arraignment of the appellant before the trial court where he was convicted and sentenced to a 5 year term imprisonment hence the present appeal.
Dissatisfied with the judgment of the trial court, the appellant, appealed to this court by his notice of appeal dated and filed on 4/11/2002, containing one ground of appeal, the omnibus ground of appeal. With the leave of this Honourable Court granted on 3/3/2004, the appellant filed four additional grounds of appeal bringing the appellant’s total number of grounds of appeal to five. The grounds of appeal with their particulars are as follows:
“1. That the decision of trial court is unreasonable, unwarranted and can not be supported having regard to the evidence before the court.
2. The trial Judge erred in law when he held it is therefore my considered opinion that the accused in an effort to get information from the deceased inflicted too much physical punishment on the deceased which untimately led to the death of the deceased in his custody and at a time the deceased was supposed to be in prison custody and not in the custody of the accused p.92 of the record.
Particulars
(a) That the evidence adduced by both the prosecution and the defence raised serious doubt on the guilt of the accused person.
(b) That the testimonies of defence witnesses and the exhibits tendered before the court were not considered by the court before convicting the accused.
3. That the trial Judge erred in law when he held … the prosecution has succeeded in proving to the court through the evidence of its witnesses and also the behaviour in handling the deceased that the accused caused the death of the deceased in the cause of interrogation by the beating and the torture he subjected the deceased … p.92 of the record.
Particulars
(a) That the evidence adduced by the prosecution did not prove the essential ingredients enumerated under section 225 of the Penal Code.
(b) That reference was not made to sections 240 and 241 of the Penal Code by the trial Judge before convicting the accused as the sections defined what is Hurt or Grievous hurt contemplated under section 225 of the Penal Code.
4. That the trial Judge erred in law when he stated in his judgment. The accused was charged with Culpable Homicide not punishable by death under section 225 of the Penal code … p.82 of the record.
Particulars
(a) That the accused was not arraigned for an allegation of Culpable Homicide not punishable by death under section 225.
(b) That Hakimi Rabi’u, the alleged deceased person died on 15/8/97 and not on 18/1/97 as stated in the judgment by the trial Judge.”
In accordance with the rules of practice and procedure of this court briefs of argument were filed and exchanged by the parties.
From his five grounds of appeal, the appellant distilled the following issues for determination in this appeal:
“1. Whether the judgment of the trial court could stand, having to the pieces of evidence adduced at the trial court.
2. Whether the learned trial Judge was right in convicting the appellant for causing the death of the deceased based on the contents of exhibit “4” which was an order of remand of an Area Court Jargaba, Katsina State and therefore on the appellant.
3. Whether the learned trial Judge was right when he held that the prosecution has succeeded in proving to the court through its witnesses for the alleged offence against the appellant in the absence of direct, positive and over whelming evidence linking him with the commission of the alleged offence.
4. Whether the learned trial Judge was right when he stated in his judgment that the appellant was charged with culpable homicide not punishable with death under section 225 of the Penal code.”
The respondent at page 1 of the respondent’s brief, appeared to have adopted the issues formulated by the appellant when he merely referred to the said issues and proceeded to respond to the argument of the appellant on the said issues.
At the hearing of the appeal which came up on 26/10/05, counsel to the parties adopted their respective briefs without advancing any oral argument.
Arguing issue number one in the appellant’s brief dated 15/3/04 filed on 16/3/04, as to whether the judgment of the trial court could stand, having regard to the pieces of evidence adduced at the trial court, learned counsel for the appellant, N. A. Ahmed, Esq, submitted that the appellant was wrongly convicted for the alleged offence of causing death of the deceased, Hakimi Rabiu, having regard to the evidence of P.W.1. and other prosecution witnesses who did not link the appellant with the alleged offence. It is further submitted that the evidence of P.W.2, P.W.3, D.W.1, the appellant, D.W.2, D.W.4 and D.W.5 and the remand warrant exhibit “4”, all established the appellant’s innocence rather than his guilt. That the pieces of evidence in support of the appellant’s case which established the innocence of the appellant were not denied or rebutted by the prosecution. Reference was made to Section 42(1)(a)of the Evidence Act by the learned counsel for the appellant who urged the court to resolve issue number one in favour of the appellant.
Responding to the submission of the learned counsel for the appellant on issue number one, learned counsel for the respondent, I.B. Gafai, Esq, in the respondent’s brief dated 21/2/05 deemed properly filed and served by order of this court dated 9/3/05, submitted that the learned trial Chief Judge has rightly convicted and sentenced the appellant for the offence charged on the strength of the evidence before him as the prosecution duly proved its case beyond reasonable doubt. That it is therefore a misconception of the whole judgment of the trial court to assert that the evidence adduced at the trial court did not link the appellant with the alleged offence and in support of his submission the learned counsel for the respondent referred to the evidence of P.W.1., P.W.2, P.W.3, P.W.4 and P.W.6 reproducing part of their evidence in the respondent’s brief.
He argued that from the evidence of the prosecution reproduced in the respondent’s brief the witnesses have emphatically linked the appellant with the offence charged. He emphasized that even the appellant testified to the effect that the deceased died in custody on 15/8/97 as a result of sickness but did not disclose the nature of the sickness. Learned counsel for the respondent however pointed out that the cause of death of the deceased was clearly explained by the prosecution witnesses as well as the medical report exhibit “1” and referred to the evidence of the witnesses at pages 55 and 95 of the printed record. Learned counsel for the respondent, elaborated that what is required to prove the guilt of an accused charged under section 225 of the Penal code are three ingredients which he enumerated as follows:
“(i) Whether or not the person described in the charge has died.
(ii) Whether or not such death was attributed to the act or omission of the accused.
(iii) Whether the intention of the accused on causing such death was to cause hurt or grievous hurt”.
It is submitted by the learned counsel for the respondent relying on exhibit “1”, “2” and “4” which corroborated the testimonies of the prosecution witnesses in linking the appellant with the alleged offence as required by law that the learned trial Chief Judge rightly found the appellant guilty as charged. Reference was made to the case of Ndike v. The State (1994) S.C.N.J. 46 at 54; (1994) 8 NWLR (Pt.360) 33 in support of his submission and urged the court to resolve issue number one against the appellant.
On issue number two as to whether the learned trial Chief Judge was right in convicting the appellant based on the contents of exhibit “4” which was an order of remand of the Area Court Jargaba and therefore binding, the learned counsel for the appellant stated that he has adopted all his submission on issue number one as same are relevant and applicable to issue number two. He submitted that the evidence adduced by both the prosecution witnesses and the defence cast serious doubt on the guilt of the appellant. According to the learned counsel for the appellant there are contradictions and inconsistencies in the evidence of P.W.1., P.W.2 and P.W.3 respectively which ought to have been resolved in favour of the appellant placing reliance on State V. Danjuma (1997) 5 NWLR (Pt.506) 512 at 515; Ahmed v. The State (1999) 5 S.C. (Pt.2) 39 at 45 – 46; (1999) 7 NWLR (Pt.612) 641.
He argued that the none consideration of the evidence of the appellant’s witnesses and the two exhibits tendered in support of the appellant’s case, exhibits 1 and 2 has occasioned a miscarriage of justice against the appellant, citing Onwe V. Oke (2001) 3 NWLR (Pt.700) 406 at 409 – 410 in support of his argument.
Concluding his submission on this issue, learned counsel for the appellant further submitted that the appellant was convicted and sentenced on a wrong perimeter of law and urged the court to so hold and resolve issue number two in favour of the appellant.
In reply to the appellant’s issue number two, learned counsel for the respondent stated that there is nothing tangible in the argument of the appellant in issue number one which he adopted in his submission on issue number two. Relying on Akpalakapa v. Igbaibo (1996) 8 NWLR (Pt.468) 533 at 551, learned counsel to the respondent argued that there is nothing in the submission of the learned counsel for the appellant on issue number one to move this court to interfere with the conviction of the appellant.
He submitted that it is not enough for the appellant to allege doubt in the evidence of the prosecution witnesses and seek to hide under the pre of alleged contradictions and inconsistencies in the evidence of P.W.1, P.W.2 and P.W.3, without showing this Hon. Court how the evidence contradicted one another, the extent of the inconsistencies and how they materially affected the validity of the conviction of the appellant as required by Section 139 of the Evidence Act Cap.112 Laws of Federation of Nigeria, 1990. Learned counsel for respondent further argued that even if there are contradictions or inconsistencies in the evidence of the prosecution witnesses as alleged by the appellant such contradictions or inconsistencies must be substantial and fundamental to the of the main issue in question before the trial court to justifying the interference of this court, citing Section 20 of the Court of Appeal Act, Cap.75, Laws of Federation, 1990 and Ndike v. State (1994) SCNJ 46 at 54; (1994) 8 NWLR (Pt.360) 33.
On the contention of the learned counsel for the appellant that the learned trial Chief Judge did not consider the evidence of his witnesses and exhibits 1 and 2 tendered in evidence at the trial in support of the appellant’s case but rather placed heavy reliance on exhibit “4”, learned counsel for respondent, referred the court to page 90 lines 28 – 29 and page 91 lines 9 – 12 of the printed record and urged the court to resolve the issue against the appellant.
As the submissions of both counsel on issues numbers one and two have covered issues number 3 and 4 formulated by the learned counsel for the appellant, I do not consider it necessary to repeat them here. In fact having carefully studied all the four issues formulated by the appellant and adopted by the respondent, it is my view that one single issue is sufficient to dispose of this appeal as the issues are basically complaining on one point and that is the finding of fact by the learned trial chief Judge.
The issues in this appeal overlap and appear to me to be prolix. Although an appellate court is required to deal with all the issues canvassed in the brief, see Abiola v. Federal Republic of Nigeria (1995) 3 NWLR (Pt.382) 203, it seems to me under the peculiar circumstances of this appeal as stated above, an appellate court is entitled to formulate issues which will exhaustively deal with the crucial and fundamental points raised by the appeal. See Opara v. D.S. (Nig.) Ltd. (1995) 4 NWLR (Pt.390) 440, Kotoye v. Saraki (1994) 7 NWLR (Pt.357) 414 at 456. The practice of formulating so many issues in an appeal has been frowned at by the Supreme Court in several cases. See for example Obijiaku v. Offiah (1995) 7 NWLR (Pt.409) 510. It is the law that the court has the jurisdiction to modify, reject or reframe the issues formulated by the parties if in its view those issues will not lead to the proper determination of the appeal. See Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR (Pt.146) 551; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523. By the force of these authorities, I will reframe the issue for determination and proceed to consider the merit of the appeal on the basis of the issue.
In my view the following issue is all encompassing and sufficient enough to dispose of this appeal.
Whether there is credible evidence to sustain the judgment of the learned trial Chief Judge?
In the consideration and resolution of this issue, it is necessary to refer to the evidence adduced by the parties before the trial court that I consider relevant in the determination of this appeal.
The prosecution as I earlier stated in this judgment in a bid to prove its case called six witnesses while the appellant as the accused called five witnesses in defence.
Having thoroughly examined the evidence of each witness, I find that part of the evidence of P.W.2 and P.W.6 of the prosecution are relevant and are hereby reproduced below:
“P.W.2:- Moslem affirmed. My names are Mohammed Gali Ali. I live at Unguwar Kanawa in Bakori Local Government. I am a farmer. I knew Hakimi Rabi’u very well. He is now deceased. We live in the same village and there was a time we were detained at Bakori Police Station together. He died at Bakori Police Station about 2 years seven months now. I knew Yusuf Ibrahim Garko. He is in the Court. He is the accused in this trial. I know him as a Divisional Police Officer of Bakori. That was over 2 years ago. Between the 10th – 5th of August, 1997. I was at Bakori Police station on detention. There were three of us in detention. There was Sani Sani Ummaru, Shehu Sale and myself. Hakimi Rabi’u was brought to detention on 10/8/97. The deceased was arrested in my presence. The accused person took us along with him in a vehicle when he arrested the deceased. Myself and Sani Ummaru. We stood before the D.P.O. The Policemen were slapping us. We were then taken back to the cell. Because of the slaps the deceased was generally weak. There was blood running out of his ears.
About 3:00 a.m. the D.P.O. came back and he asked that I be presented before him, at a place called Admin. It was an interrogation place. The accused and other policemen were there. I was handcuffed and hanged. I was hanged by the arms from a wood structure with an iron rod on top. The accused used a wire cable to whip me and at the same time asking me questions. That was done for about 30 minutes. When the accused saw that I was looking unconscious to him he ordered that I be brought down. I was taken back to the cell. The deceased was then taken to the Admin. He was also hanged. I could see from the cell. The deceased was being beaten by the accused and asked where were the goods, while the deceased was emphatically denying knowledge. The accused used a naked cable wire to the deceased. The deceased was beaten for almost 15 minutes. When the deceased was almost unconscious he was brought down and taken to the cell. He could not walk. Both Sani Ummaru, Shehu Sale and Ibrahim Hakimi were given the same treatment. The deceased was in such critical condition that he could not talk. From that moment none of us was able to sleep because of the pains. About 8:00 a.m. the deceased indicated that he wanted to ease himself. There was also a detainee by name of Ja’afaru who together with myself assisted the deceased and we took him a bucket in the cell where he had himself, instead of urine blood was coming out of his private part (penis). I noticed that the blood was still coming out of his ears. We were alerting the policemen on the counter on the condition of the deceased. The policemen told us that the accused was informed. He neither came nor cared. On the 3rd day the accused came to us all again. I cannot recall the exact time. He told us that since we refused to tell him the truth we will suffer the same torture. He did not turn up throughout that day after he left. He returned the following morning. The accused ordered that the deceased was brought out of the cell to the counter. The condition of the deceased has considerably deteriorated. I heard that he was to be administered with some drugs but I did not see when and if it was done. On the 5th of the deceased’s detention though I did not know when the deceased was taken out for medication. He was later brought back. He was at the counter and his son asked him to lie down. The deceased then slumped down. About 6:30 p.m. the accused came to the station and he found the deceased covered with a dress. He lifted the dress and asked “is this useless old man dead”? Then he returned the dress covering the deceased. He said it was up to the deceased. The deceased was then dead.”
“Cross Examination:- I was detained on an allegation of theft of a motorcycle then. I was detained from 6/8/97 but I cannot recall the date I left the Police Station. I was brought to court here in Katsina I spent 28 days before I was taken to court. I was taken to a Magistrate Court presided by one Aminu. I was not told that the deceased died on 15/8/97. I was there. I did not physically confirm the death of the deceased. It was the accused who when he removed the cloth from the deceased said that he was dead. I knew the deceased before his arrest. We live in the same village. I knew he was very well before the arrest of the deceased. I knew Shafi’u Rabi’u. He is a son to the deceased. There were 8 policemen when we went to the house of the deceased. I do not know whether the deceased was taken to the hospital or not.”
“P.W.6:- Moslem affirmed, my names are Corporal Danliti Ibrahim. My number is 153949. I am now attached to Guri Police Station in Jigawa State. In August of 1997, I was at Bakori Divisional Police Headquarters. My Divisional Police Officer then was Mr. Yusuf Garko. He is now in court. He is the accused person. I know one Hakimi Rabi’u, he is now dead. He died at Bakori Divisional Police Headquarters. In August of 1997, he died when he was interrogated by the D.P.O. I was there when he was interrogated by the D.P.O. The D.P.O. was Mr. Yusuf Ibrahim Garko. Hakimi Rabi’u was brought to the Police station on 10/8/97. He was brought to the office by the D.P.O. and a team of Policemen. I do not know why he was brought to the station. It was later on I was made to understand that one of his sons by the name Gali was suspected of having stolen a Vespa. When he was brought I looked at him. I notified that he was an old man. He remained at the station for three days. He was interrogated by the D.P.O. on 12/8/97. He was interrogated by hanging him upside down. He was beaten up with a cable wire. He was beaten up by the D.P.O. and one Aminu Murnai and Hamza. They are all policemen. The full names of Hamza Hussaini. The interrogation lasted for one hour. I noticed blood coming out of the nose, mouth and private parts of the deceased. That is all what I know.”
“Cross-Examination:- I do not know how old Hakimi Rabi’u was when he was brought to the station. I know that he was an old man but I do not know how old. I was not among the policemen who arrested Hakimi Rabi’u.
I was on duty when he was brought to the station. I was the desk N.C.O. That is Non Commissioned Officer. He was taken to Area Court Jargaba after he was brought to the station. It was correct to say that the court order for the detention of Hakimi at the Police Headquarters so that the police can complete their investigation. He was taken to the court on an allegation against one of his sons Gali in respect of one Vespa. I was in good term with my D.P.O. at Bakori.
I cannot remember when Hakimi was taken to General Hospital Bakori.”
The appellant testified as DW1 at pages 53 – 60 of the printed record as DW1, DW3 testified at page 62, DW4 at page 63 – 67 and DW5 at pages 75 – 76 of the printed record.
The appellant in his evidence in defence completely avoided the allegation against him and merely gave a narration of the report made against the deceased and the deceased’s subsequent arrest. However, the appellant in his evidence at page 55 of the printed record confirmed that the deceased, Hakimi Rabiu, died in the Bakori Police Station. Also, all the defence witnesses did not give any evidence to counter the evidence of the prosecution witnesses particularly that of PW2 and PW6.
In all criminal trials the onus is on the prosecution to establish its case beyond reasonable doubt. See Esangbedo v. State (1989) 4 NWLR (Pt.113) 57; Egbe v. King (1950) 13 WACA 105; Ozaki v. The State (1990) 1 NWLR (Pt.124) 92.
In a murder trial the prosecution must show conclusively that death was caused by the act of the accused. In other words there must be nexus between the act of the accused and the death of the victim. See Lori v. The State (1980) 8 – 11 S.C. 81 at 95 and 96 and Idemudia v. State (1999) 7 NWLR (Pt.610) 202 at 215. A finding of fact must be based on credible evidence or reasonable inference drawn from facts presented by the prosecution in the case. However, in a criminal trial, it is unsafe to base a conviction on speculative finding based not on what the appellant did but on what he ought to have done. See Amadi v. The State (1993) 8 NWLR (Pt.314) 644.
The first point that must be made is that a court of law needs not take into account the number of witnesses for each side to a dispute as relevant in deciding which side to succeed. Accordingly, the general rule is that except in cases, whether civil or criminal, where the evidence of a witness by law needs to be corroborated by some other evidence, no particular number of witnesses is required for the proof of any fact in issue and a person may be convicted of an offence on the evidence of oath of a single adult witness where no corroboration is prescribed. In arriving at a conviction in criminal cases, the court is concerned with whether or not there is sufficient credible evidence of probative value and not the number of witnesses called on an issue. See Commissioner of Police v. Kwashie (1953) 14 WACA 319; Oguonzee v. State (1998) 5 NWLR (Pt.551) 521, 551 – 552.
At the conclusion of the trial and address by counsel to the parties, the learned trial Chief Judge, extensively reviewed the evidence adduced before him and at page 92 of the printed record, held,
“The poste mortem report indicated that in its findings an enlarged right kidney and acute renal failure which even though I am not a medical man have come to know that such a medical condition may result from such action as severe beatings as described by witnesses of the prosecution in their testimony before the court. Having considered the testimonies of both the prosecution and the defence there is no doubt in my mind that the prosecution has succeeded in proving to the court through the evidence of its witnesses and also the behaviour in handling the deceased that the accused caused the death of the deceased in the cause of interrogation by the beating and tortured he subjected the deceased.
The intention of the accused as gleaned from the evidence was definitely not to cause death but to extract information which however resulted in inflicting such hurt on the deceased which led to his death.
It is therefore my considered opinion that the accused in an effort to get information from the deceased inflicted too much physical punishment on the deceased which ultimately led to the death of the deceased in his custody and at a time the deceased was supposed to be in prison custody and not in the custody of the accused. I have therefore found the accused guilty as charged.”
Taking into consideration the evidence adduced by the prosecution before the trial court which remained unchallenged and uncontroverted and the findings of the learned trial chief Judge, relying on the authorities cited herein, I agree with the learned counsel for the respondent that the prosecution has discharged the burden placed on it in proving the case against the appellant beyond any reasonable doubt. In fact, the appellant and his witnesses did not lead any evidence to contradict the evidence of the prosecution but merely narrated the incident of the report of the allegation against the deceased, his arrest, detention in the police station where he eventually died.
Also, it does not appear that any effort was made on behalf of the appellant in contradicting the evidence of the prosecution through cross-examination. I therefore agree with the learned counsel for the respondent that it is not enough for the appellant to merely allege contradictions and inconsistencies without clearly stating them as well as their effect on the findings of the learned trial Chief Judge.
It is interesting to observe that the appellant in his evidence confirmed that the appellant was well when he was brought to the Bakori Police Station and that he died at the police station. It is strange for the appellant to now complain about lack of consideration of Exhibit “1” and “2” having regard to the contents of the judgment contained in the printed record.
The clear picture in this appeal is that there is evidence adduced by the prosecution through its witnesses particularly P.W.2 and P.W.6 while there is no evidence whatsoever led in rebuttal by the appellant and his witnesses. If the evidence of a single witness sufficiently proved the case against the accused, there is no rule of law or practice disentitling the court from convicting the appellant on the evidence adduced in the instant appeal. See Anthony Igbo v. The State (1975) 9-11 SC 129; Lori v. The State (1980) 8 – 11 S.C. 81; Kato Dan Adamu v. Kano Native Authority (1956) SCNLR 65; (1956) 11 FSC 25.
It is not every mistake or error in judgment that will result in appeal being allowed. It is only when the error is substantial in that it had occasioned a miscarriage of justice that an appellate court is bound to interfere. See Owhonda v. Ekpechi (2003) 17 NWLR (Pt.849) 326 at 351; State V. Ogbubunjo (2001) 2 NWLR (Pt.698) 576 at 593.
In the instant appeal as rightly submitted by the learned counsel for the respondent, in my view, the appellant apart from failing to show the contradictions and inconsistencies alleged also failed to show that the non consideration of exhibit “1” and “2” and the alleged reliance of exhibit “4” in the appellant’s brief are mistakes that are fundamental which has occasioned a miscarriage of justice.
In view of the aforesaid, I hereby resolved the sole issue formulated by me in the affirmative against the appellant in favour of the respondent.
In the result, I hold that this appeal lacks merit and is hereby dismissed by me. The judgment of the learned trial Chief Judge, Mahuta, CJ, delivered on 28/8/2002, convicting and sentencing the appellant to a 5 year term imprisonment is hereby affirmed.
Other Citations: (2006)LCN/1871(CA)
