Stephen Haruna V The Attorney-general Of The Federation (2010)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER ODILI, J.C.A.

This is an appeal against the decision dated 6th October 2008 of the High Court of Justice, Abuja FCT, presided by Honourable Justice A. M. Taiba wherein the Accused/Appellant was convicted to death by hanging for the offence of culpable homicide contrary to Section 221 of the Penal Code.

FACTS:

The prosecution testified that on 1st January 2004 a case of culpable homicide was referred from the Garki Division involving the accused (Stephen Haruna) now appellant. Prior to the aforementioned date, the accused Stephen Haruna was a security guard working with the Power Holding Company of Nigeria Plc formerly NEPA and was attached to late Barrister (Miss) E.N. Igwe) Assistant General Manager Legal, NEPA Headquarters, Abuja.

On getting to the scene, PW1 recovered Exhibits A – 1 tendered before the Lower Court viz a NEPA Uniform – grey in colour, one black trousers, a broken ceramic, Black batten, a multi coloured boxer pant, a flake, a bundle of N200 totaling, N22,600, a bundle of N100 notes totaling N10,000.00, ‘ a bundle of N100 notes, four pieces of N500 notes totaling N2,000.00, Head tie and white pant. Other exhibits were recorded and there were three statements of the accused person which are Exhibits M1-M3.

An autopsy was conducted by PW2, Dr. Said Mohammed Amin on 6th January 2004. There was no direct eye witness account of what happened to the deceased on 1st January 2004. Prosecution witnesses testified and the accused testified. After addresses the Lower court determined its judgment on 6th October 2008 and convicted the accused to death by hanging. Being dissatisfied with the decision, the accused filed a Notice of Appeal.

On the 30/11/09 date of hearing, Mr. Ologunorisa learned counsel for the Appellant adopted Appellant’s Brief filed on 30/4/09 and a Reply Brief filed on 24/6/09. Appellant formulated six (6) issues for determination which are as follows:-

1. Whether Exhibit O (Coroner’s Ordinance Report) issued by PW2 (Dr. Said M. Amin) in respect of the deceased. Miss Barrister EN. Igwe being conflicting, equivocal and therefore unreliable as evidenced by the material contradictions therein conclusively established the cause of death of the deceased.
2. Whether the trial judge correctly convicted the appellant relying on Exhibit M3 (3rd Statement of accused) to the exclusion of Exhibits M1 and M2 (1st and Td Statements of accused) when the evidence of the accused’s explanation as to what happened on the fateful day was not discredited by the prosecution in any form whatsoever.
3. Whether the conclusion of the trial judge would have been different if the judge had not improperly evaluated the evidence adduced before the trial court and made findings of fact not supported by evidence.
4. Whether the trial judge having misdirected himself by holding thus “A close scrutiny of the accused’s testimony would reveal that there are so many questions to be answered properly considered that the accused had offered a minimum of explanation.
5. Whether it is proper for the trial judge to rely on Exhibits A-F, G1-G4,I in coming to the conclusion that the appellant did cause the death of Barrister Miss EM Igwe relying on exhibits which lack probative value.
6. Whether it is proper for the trial judge to overlook the incongruous pieces of evidence in Exhibit M3 (3rd Statement of accused) and attach weight to Exhibits M3 in coming to the conclusion that the appellant did cause the death of Barrister Miss E. N. Igwe.

Mr. Rotimi Ojo, learned counsel for the Respondent adopted, Respondent’s Brief filed on 2/6/09. Mr. Ojo adopted the six issues framed by the Appellant.

The grounds of appeal at page 187 of the Record which are six in number are recast without their particulars below and they are:-

GROUND 1:

The learned trial judge of the High Court of Justice erred in law in holding that the Prosecution established the cause of death of Miss Barrister E.N. Igwe beyond reasonable doubt.

GROUND 2:

The learned trial Judge erred in law by convicting the appellant for culpable homicide the said matter being mainly based on Exhibit M3 admitting the crime to the exclusion of Exhibits M1 and M2 were not thoroughly examined there being no eye witness account of what transpired in the deceased’s house on the fateful day.

GROUND 3:

The learned trial judge improperly evaluated the evidence adduced before the trial Court and that if the said errors had not been made the conclusion would have been different as the said findings which were conclusions based upon admitted evidence were manifestly insupportable and/or perverse as they did not flow from the evidence led by the prosecution and therefore the judge reached a wrong decision thereby occasioning a miscarriage of justice.

GROUND 4:

The learned trial judge erred in law either from the findings of fact or from inferences drawn from the facts having regard to the burden of evidence required to be discharged both by the defence and the prosecution where the doctrine of the deceased last been seen is being considered the prosecution failed in their discharge of the onus which had on the evidence clearly shifted to them to be established in the particular circumstances of the instant proceedings on appeal.

GROUND 5:

The learned trial judge of the High Court of Justice erred in law by convicting the Appellant for culpable homicide the said matter being mainly based on the confessional statement (Exhibit M3) which said statement was examined in the light of exhibits which lack probative value.

GROUND 6:

The learned trial judge of the High Court of Justice erred in law in holding that Exhibits M2 and M3 are properly admitted in evidence and/or wrongly attached weight to Exhibit M3.

ISSUE NO. 1:

Whether Exhibit O (Coroner’s Ordinance Report) issued by PW2 (Dr. Said M. Amin) in respect of the deceased Miss Barrister E.N. Igwe being conflicting, equivocal and therefore unreliable as evidenced by the material contradictions therein, conclusively established the cause of death of the deceased.

Learned counsel for the Appellant, Mr. Ologunorisa stated that the evidence of PW2, Dr. Amin did not ascertain conclusively the cause of death. That the pieces of evidence of PW2 did not state the cause of death of the accused. That the defence had submitted that if the injury on the head of the deceased was self inflicted then such piece of evidence did not enable the trial court to determine the cause of death and that created a doubt as to whether the death could have resulted from injury to the head or injury to the neck. That failure to say positively what the cause of death was in the Medical Report was fatal to the case of the prosecution particularly as one of the ingredients of culpable homicide punishable with death is thereby not established. He referred to Sule Ahmed v. The State (2003) ACLR 145 at 157, 159; Dada v. The State (1991) 11 SCNJ 19 at 28; Adava v. The State (2006) 2 SCNJ 259 at 271; Tegwonor v. State (2008) 1 NWLR (pt. 1069) 630 at 664.

Learned counsel for the Appellant further submitted that the Lower Court was entitled to presume under Section 148 of the Evidence Act that a broken glass cannot be viewed as a blunt object and that the accused did not hit the deceased with a broken glass as the prosecution tendered Exhibit C (a broken ceramic plate). That the trial Court ought to have rejected the medical evidence about the cause of death as unreliable and inclusive. He cited Onyejekwe v. The State (1992) 4 SCNJ 1 at 11.

In response, Mr. Ojo on behalf of the Respondent submitted that it is plainly illogical to attack the credibility of PW2 when the Appellant himself had in evidence admitted holding the deceased on her neck and hitting her on the head with a broken glass.

Mr. Ojo of counsel stated that the law is common place that the best way of establishing the cause of death is by Medical evidence and in this instance Exhibit 0 is the Coroner’s Ordinance Report of the deceased. He cited Onyia v. State (2006) 11 NWLR (pt. 991) 276.

He further contended that for a contradiction in the evidence of the prosecution to be material and capable of rendering the evidence unreliable and not capable of being acted upon, such contradiction must relate to material ingredients of the offence charged as it is not every inaccuracy in the testimonies of witness that will render such testimonies unreliable. He cited the case of Uwaekweghinya v. The State (2005) 9 NWLR (pt. 930) 227. He concluded by submitting that Exhibit “O” is unequivocal, positive, direct, cogent, compelling and reliable and point to no other conclusion than the guilt of the accused.

The Coroner’s Report, Exhibit “0” contained the finding and conclusion of the coroner, Dr. Said M. Amin who later testified as PW2. He had stated in that report dated 7/1/04 thus;-

” Corpse of a middle age (sic) obese woman with no pillow cyanosis or rigor mortis injuries. V – shaped laceration on forehead with skull visible at the based. Oblique laceration left orbit Strangulation mark on anterior neck.

Internal Appearances reveal blood collective in frontal lobe of brain and occipito-parietal lobe. Hematoma on luminal surface of trachea.

I certify the cause of death to be due to coma as a result of cerebral damage following trauma to the head”.

From the question posed and the medical report above quoted and which had been tendered and admitted in the Court Blow as Exhibit O it is clear that to answer that poser recourse needs be anchored on earlier authorities relevant thereto.

The purpose of a medical report or evidence is mainly to prove the cause of death of the deceased. Such medical report or evidence must clearly show that the injury inflicted on the deceased caused the death without any intervening factor or factors as would create the possibility that the cause of death was something else other than the injury inflicted on the deceased. Onyia v. State (2006) 11 NWLR (pt. 991) 167 at 291; Oforlete v. State (2000) 12 NWLR (pt. 681) 415.

In murder cases, a court can dispense with medical report or not bound by medical evidence in proof of the cause of death of a deceased. It is so because even with or without medical report, a trial court can still infer the cause of death provided there is clear and sufficient evidence that death of the deceased was the direct result of the unlawful act of the accused person to the exclusion of all other reasonable possible causes. In other words, medical evidence is not a sine qua non in all cases of murder. Where the victim dies and the evidence leaves no doubt as to the manner of cause of death, medical evidence may be dispensed with. Onyia v. State (2006) 11 NWLR (pt. 991) 267 at 291 – 292 and 296; Bakuri v. State (1965) NMLR 163; Bwashi v. State (1972) 6 SC 93; Ilori v. State (1980) 8 – 11 SC 81; Uyo v. Attorney general Bendel State (1986) 1 NWLR (pt. 17) 418; Ehot v. State (1993) 4 NWLR (pt. 290) 644; Effiong v. State (1998) 8 NWLR (pt. 562) 362; Ben v. State (2005) 11 NWLR (Pt. 936) 335; Igago v. State (1999) 14 NWLR (pt. 637) p.1.

By virtue of Section 220 of the Penal Code, the person who causes bodily injury to another person and death ensued is deemed to have caused the death of the person injured. It is immaterial that that injury might have been avoided by proper precaution on the part of the person injured or that death from that injury might have been prevented by proper care or treatment. Tegwonor v. State (2008) 1 NWLR (pt. 1069) 630 CA;

Section 220 (a) & (b) of the Penal code is to the effect that when the injured person has recourse to surgical or medical treatment and death results either from the injury or medical treatment, the person who does grievous bodily harm to the deceased is deemed to have killed that other person, although the immediate cause of death was the surgical or medical treatment provided that the treatment was reasonably proper under the circumstances and was in good faith. Tegwonor v. State (2008) 1 NWLR (pt. 1069) 630 at 657 – 658; Onwujuba v. Obienu (1991) 4 NWLR (pt. 183) 16.

The Medical doctor as coroner and the expert who carried out the autopsy left nothing to conjecture or in doubt as to what was the cause of death which he stated to be “cerebral damage following trauma to the head”. That the doctor had referred to a strangulation mark only went to show what he examined and saw but he did not situate the cause of death to be other than the trauma to the head. Also not diluting the strength of the report is the fact that the doctor said the injury could have been self inflicted since there were other factors that could and did in fact support that the injury in this instance was done by somebody other than the deceased. There was nothing equivocal, conflicting or unreliable about Exhibit O (Coroner’s Ordinance Report) and I so answer the question raised in this first issue negatively and in favour of the Respondent.

ISSUE NO. 2:

Whether the trial judge correctly convicted the Appellant relying on Exhibit M3 (3rd Statement of accused) to the exclusion of Exhibits M1 and M2 (1st and 2nd Statements of accused) when the evidence of the accused explanation as to what happened on the fateful day was not discredited by the prosecution in any form whatsoever.

Mr. Ologunorisa for the Appellant contended that it is common ground that the deceased was alone in the house on the fateful day she met her death and that the accused was with her in the house as the security man and offered a minimum of explanation on the matter vide his first statement to the police (Exhibit M1) and his evidence in court and the prosecution did not cross-examine him as to the veracity of his story.

That it is trite law that circumstantial evidence must always be narrowly examined as that type of evidence may be fabricated to cast suspicion on innocent persons. That though circumstantial evidence may sometimes be conclusive, all other factors and surrounding circumstances must be considered carefully for they may be enough to adversely affect the inference of guilt. He cited Erne Orji v. The State (2008) 4 SCNJ 85 at 98. He stated that if the trial judge had narrowly examined the facts of Exhibit M3 against the surrounding circumstances carefully the court would not rely on Exhibit 3 to the exclusion of Exhibit Ml and M2.

Responding Mr. Ojo said that the trial judge correctly convicted the appellant by relying on Exhibit M3 (3rd Statement of the accused) to the exclusion of Exhibits M1 and M2. That the fact that an accused as in this case subsequently retracts or resiles on his confession (as in Exhibits M2 and M3) does not mean that the court cannot act on the confession to convict him as the circumstance of the case justify it. That it is however desirable if the confession is retracted and there should be corroboration, no matter how slight, but a conviction will not be questioned merely because it is based entirely upon the evidence of a confession by theaccused. He relied on Nwangbonu v. State (1994) 2 NWLR (pt. 327) 380; Agbo v. State (1978) 11 NSCC.

In reply on points of law, Mr. Ologunorisa for the Appellant submitted that the records showed that PW3 (Imran Atiku Ibrahim) testified on 6th July 2005 and in his Statement to the Police PW3 had not said he saw blood stains on the face and hand of the accused. Therefore if the trial judge properly attached weight to PW3’s evidence he would not have held that Exhibit M3 corresponds with the testimony of PW3.

An accused person’s confession is relevant and should not be disregarded merely because he later resiles from it. What is important is the weight the trial Judge will attach to such confession and retraction Nwangbonu v. State (1994) 2 NWLR (pt. 327) 380 at 392 per Wali JSC.

It is not in every case where the accused challenges his statement confessing the commission of the offence that a trial within trial must be held, it is only held where the issue of voluntariness arises but not when it is the making of the statement simpliciter that is in issue. It is therefore not required in law as in the present case to hold trial within trial to test a confession unless the issue of voluntariness is clearly raised.

Nwangbonu v. State (1994) 2 NWLR (pt. 327) 380; R v. Kassi 5 WACA 154; R V. Onabanjo 3 WACA 43; R v. Igwe (1960) SCNLR 511; Queen v. Eguabor (1962) 1 SCNLR 409; Obidiozor v. State (1987) 4 NWLR 748.

An accused person can resile from his statement to a Police Officer in one of two ways. Either:-

(a) that he never made the statement at all in which case it is a matter of fact to be resolved by the evidence before the court; or

(b) that he made the statement or signed it but not voluntarily.

In the former case, the mere denial by an accused of having made a statement confessing to the crime charged is a question of fact that the trial court must decide. It does not make the statement inadmissible. It must however be considered along with the entire evidence and circumstances of the case for the weight to be attached to it. For example, in cases where the accused merely challenges the correctness of the statement as recorded or the signature or thumb impression, that will be a question of fact to be decided by the Court of trial, but not an issue for the procedure known as “trial within trial”. The confession is relevant and admissible. Section 27 of the Evidence Act takes care of this case. In the second case of a denial that the statement was made voluntarily as in Section 28 of the Evidence Act the court has more investigation to conduct before it decides whether the statement was made voluntarily or not a trial within trial must be held. Per Wali JSC in Nwangbonu v. State (1987) 4 NWLR (pt. 67) 748; Akinfe v. State (1988) 3 NWLR (pt. 85) 729; Ojegele v. State (1988) 1 NWLR (pt. 71) 414; Ikpasa v. State (1981) 9 SC 17.

Section 27 (2) of the Evidence Act shows that a voluntary confession by an accused person is evidence against him at his trial for the offence confessed to. The action does not strictly require any direct or circumstantial evidence to corroborate the confession before a conviction is solely based on it. But decided cases make it desirable to look for such corroborative evidence outside the confession where it is retracted.

Otufale v. State (1968) NMLR 261; Queen v. Obiasa (1962) SCNLR.

The learned trial judge went to great length in the consideration of the three statements of the accused/appellant. In the first statement, Exhibit M1 the Appellant had denied the offences and laid the blame on three other persons. However in Exhibits M2 and M3 he confessed to the crimes of homicide and stealing, either alone or with another person. Even though he had earlier sought to deny Exhibits M2 and M3, the confessional statements, his counsel had on his behalf retracted from the objection to the admissibility of those two later statements (M2 and M3) and thereby removing any obstacle that could have either provided the need for a trial within trial as to the voluntariness of those confessional statements or that they were not made by the Accused/Appellant. Furthermore a perusal of those confessional statements showed the personal background of the Accused/Appellant including those private areas of his life that could only be within his knowledge thereby supporting the fact put up by the prosecution that they were the statements made by him and voluntarily too. I place reliance on the case of:-

Augustine Nwangbonu v. The State (1994) 2 NWLR (pt. 327) 380 at 397.

Retraction of or resiling from a voluntary Statement per se by the maker will not render it inadmissible against him. Having regard to the circumstances of the case, it may go down to affect the weight to be attached to it. Also the prosecution had carried out or provided the fact that they met the requirements in Section 126(1) of the Criminal Procedure Code whereby the confessions were counter signed by a superior police officer who it was not necessary to call to testify in court. I place reliance on R v. Kanu (1952) 14 WACA 30; Itwle v. Queen (1961) 2 SCNLR 183; German Awip v. Queen (1957) SCNLR 307.

Dalba Ghuna v. The State NMLR (pt 162); Nwangbomu v. State (1994) 2 NWLR (pt. 327) 380 at 396; Egboghonome v. State (1993) 7 NWLR (pt. 306) 383.

As to the question raised whether the trial judge could convict on the confessional statement Exhibit M3 alone, I would answer positively within the circumstances and other factors that supported what was contained in that Exhibit M3.

ISSUE NO. 3:

Whether the conclusion of the trial judge would have been different if the trial judge had not improperly evaluated the evidence adduced before the trial court and made findings of fact not supported by evidence.

Learned counsel for the Appellant, Mr. Ologunorisa submitted that had the trial judge narrowly examined the evidence he would have considered that the time lag between the date of making Exhibit M1 and the accused testifying in court could have impaired the accused vivid recollection of events that transpired on the fateful day. That the appellant may have been confused on that day and gave accounts that were similar but are contradictory in some aspects. He cited Bozin v. The state (1998) 1 All CLR 1 at 12 – 13; Sasegbon’s Laws of Nigeria (1st Edition) Vol. 10 part 11 para 1618.

That had the trial judge not made such findings of fact which left many questions unanswered and unexplained by the prosecution and so the trial court should have given the benefit of doubt to the Appellant.

Mr. Ojo for the Respondent said through the evidence of PW1 – PW6 the prosecution had proved beyond reasonable doubt all the ingredients of the offence of culpable homicide punishable with death which evidence was cogent and had linked the accused with the death of the deceased.

That the prosecution had proved the positive act of the accused causing serious injuries to the deceased which in turn resulted directly in the death of the deceased which was the irresistible conclusion. That the evidence of PW3 showed that there was a struggle between the accused and the deceased which led to the injuries. He cited Mustapha Mohammed v. State (2006) NSCC 2 at 274, Adio v. State (1986) 2 NWLR (pt. 24) 581.

Mr. Ojo further contended that when an accused person confesses of killing, he can be convicted on his confession alone if the confession is positive, direct and properly proved. He referred to Milla v. State (1985) 3 NWLR (pt. 11) 190; Achabua v. State (1976) NSCC 63.

Replying on point of law Appellant’s counsel said the contradictions in the prosecution’s case were material and these are:-

1. PW2 (Dr. Said Amin) did not testify conclusively as to the cause of death as the injury on the head could have been self-inflected.
2. The exhibits tendered before the Lower court were not sufficiently marked to show that they were produced from police custody.
3. PW3 (Imran Atiku Ibrahim) did not state in his statement to the police on 1st January 2004 that he saw blood stains on the face and hands of the accused but in contradiction PW3 testified on 6th July 2005 that he saw bloodstains on the face and hands of the accused.
4. Both Mubarak El-Nafaty and Ikara Bassey (security personnel) made statements to the police also omitting this vital point and were not called as prosecution witnesses.
5. Exhibits J1 – J11 and Exhibits K1 and K2 being photographs of the deceased and Exhibit L1 containing picture of the whole building and a parked official car stained with blood have no evidential value as the negatives which are ordinarily primary evidence were not admitted nor was any foundation laid to admit secondary evidence thereof. He cited Jude Bodedes book “Criminal Evidence in Nigeria” page 184.

From all one can glean from the findings and conclusions of the learned trial judge, there was enough upon which we could reach the same conclusion he made even though there were a few areas the learned trial judge went off course that did not affect the substance of what was before him and his conclusion was without fault.

This issue 3 is answered in favour of the Respondent.

ISSUE NO. 4:

Whether the trial judge having misdirected himself by holding thus “a close scrutiny of the accused testimony would reveal that there are so many questions to be answered” properly considered that the accused had offered a minimum of explanation.

Mr. Ologunorisa for the Appellant contended that where an accused is the last seen with the deceased the Appellant ought to be called upon to offer a minimum of explanation on the matter and the Appellant did in this instance. He cited the case of Igabele v. The State (2006) 2 SCNJ 124 at 144.

Mr. Ojo for the Respondent said the explanation the Appellant proffered was not true in view of the surrounding circumstances and the evidence of PW3. That instead the explanation of the Accused/Appellant revealed that there were many questions to be answered by him. He referred to Peter Igho v. The State (1978) 11 NSCC 166.

It is trite law that where the facts which were accepted by the court call for an explanation and none is forthcoming, such circumstantial evidence is deemed sufficient proof beyond reasonable doubt of the guilt of the accused.

The doctrine of “last seen’ means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus, where an accused person was last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the accused person to give an explanation relating to how the deceased met his or her death. In the absence of an explanation, a trial court and even an appellate court will be justified in drawing the inference that the accused person killed the deceased. See Igho v. The State (1978) NSCC 166; Igabele v. State (2006) 6 NWLR (pt. 975) 100 at 121; Emeka v. State (2001) 14 NWLR (pt. 734) 666; State v. Nwakerendu (1973) 3 ECSLR (pt.2) 757, Nwaeze v. State (1996) 2 NWLR (pt. 428) 1; Gabriel v. State (1989) 5 NWLR (pt.122) 457; Obasi v. State (1965) NMLR 119; Adepetu v. State (1998) 9 NWLR (565) 185; Adeniji v. State (2001) 13 NWLR (pt. 730) 375; Ugwu v. State (2002) 9 NWLR (pt. 771) 90.

It is based on the principles above stated that the evidence of the accused appellant on the locked door into the entrance which had to be forced open by the policemen he brought even though he could neither account for the key nor how it was locked in view of stating that after the attack to the deceased by the persons he claimed had done so he had gone in and was the last to see the deceased alive. Also left unexplained by him within the meaning of minimum explanation is how his blood was found on the body and clothes of the deceased as shown by the exhibits and stated by the PW6, the forensic expert by name Anyakoha Anthony Theophilus Onyebunia. I shall recast the relevant part of the Judgment of the Court below and it is thus:-

“….I removed the sum forty thousand five hundred naira N40,500 in her purse I give this money to one girl by name Mary who has beer pallor at Kubwa to keep for me…

PW1, Inspector Kasuwa Bagudu in his evidence before the court he stated that the suspect said he stole the sum of N40,500 from the purse of the deceased in her room. The suspect led the detectives to where he kept the money with one of his girl friend’s named Mary at Kubwa. The money was recovered but N200 was removed by the suspect. The said sum of N40,300 was admitted in evidence as exhibits G1 to G4.

The law is settled that:

1. In a charge of murder the prosecution must prove unequivocally the cause of death of the deceased failure to do so is fatal to the prosecution case the effect of which is that the accused must be discharged.
2. The cause of death must not only be proved but also the prosecution must establish that the act of the accused caused the death of the deceased. See Lori v. State (1980) 8-11 SC 81.

In other words in order to secure a conviction for murder there is the need to establish the cause of death and the cause of death must be referable to the accused.

Now the prosecution had proved beyond reasonable doubt that Barrister Miss E.N. Igwe died. It has also been proved beyond reasonable doubt by medical evidence that the cause of the death of Barrister, Miss E.N. Igwe was due to come as a result of cerebral damage following trauma to the head. The issue now is whether the cause of death is referable to the accused. After a critical appraisal of Exhibit M3 the confessional statement of the accused along with the evidence of PW1 Inspector Kasuwa Bagudu, PW2, Dr. said Moh’d Amin, PW3 Imran Atiku Ibrahim, PW5, Adesanya Muftan and PW6 Anyakohe Anthony Theopulus Onyebunia and also exhibits A – F, G1 to G4 H, I, O & S, I come to the conclusion that the accused Haruna Stephen did cause the death of Barrister Miss E.N. Igwe. I do not lose sight of the fact that the accused denied making exhibit M3 while giving evidence in court. I do not believe the accused that he did not sign the statement or that he was compelled to make a confessional statement. The facts stated in the statement. (Exhibit M3) accredited to the accused are highly detailed and it’s corroborated by the evidence of PW2, PW3, PW5 and PW6. It is impossible for the IPO (PW1) who is not a witness to the crime to concord the detailed facts. I am satisfied with the truth of the confessional statement. Consequently I am satisfied that the prosecution had established beyond reasonable doubt the guilt of the accused Haruna Stephen and I hereby convict you as follows: I hereby convict you Haruna Stephen for the offence of culpable homicide punishable with death in that you caused the death of Barrister Miss E.N. Igwe when you knew or have reason to believe that death is the probable consequence of your act contrary to Section 221 (b) of the Penal Code.

Before I pass sentence on you, you have the right to call witness to character and also say something in mitigation.

Signed: HON. JUSTICE A. M. TALBA – PRESIDING JUDGE 6/10/2008″.

There is therefore no misdirection by the learned trial Judge when he held that there were many questions which the Accused/Appellant threw open that needed his explanation and he failed to deliver. This Issue 4 I resolve in favour of the Respondent and against the Appellant.

ISSUE NO. 5:

Whether it is proper for the trial judge to rely on Exhibits A – F, G1 – G4, H, H in coming to the conclusion that the appellant did cause the death of Barrister Miss E.N. Igwe relying on documents which lack probative value.

Learned counsel for the Appellant submitted that the prosecution did not adduce arguments in opposition to the vital exhibit which was improperly tendered and admitted in evidence and so the Appellant ought to have been acquitted. He cited Mangaji v. The State (1993) NWLR (pt. 279) 108 at 123.

On their part, learned counsel for the Respondent, Mr. Ojo contended that the trial judge rightly admitted the Exhibits and gave probative value to them. That Defence counsel had initially raised objection as to the admissibility of the Exhibits which was later withdrawn by him. That it follows therefore that he conceded to the admissibility and the trial judge was right to have accorded them due weight. He cited Concord Press (Nig.) Ltd. v. Olutola (1999) 9 NWLR (pt. 620) 578 at 590 A-B.

Under the Penal Code, where the death of a human being is in issue before a court of trial the prosecution’s duty is to prove the following:-

(a) that the death of a human being has actually taken place.

(b) that such death was caused by the person being accused.

(c) that the act was done with the intention of causing such bodily injury as:-

(i) the accused knew or had reason to know that death would be probable and not only the likely

consequence of his act; or

(ii) that the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause. See Kada v. State (1991) 8 NWLR (PT. 208) 134 AT 144.

Where an accused person is being tried for a capital offence like culpable homicide, it is a condition precedent that the connection between the act of the accused causing the death of the deceased and the death caused thereby must be established beyond reasonable doubt. It may not necessarily be immediate; but it is indispensable that it must be so connected with the act of violence of the accused by either direct evidence or such cogent and irresistible circumstantial evidence. Where the nature of the connection between the act and the death is in itself obscure, then the condition is not fulfilled and the accused is entitled to be discharged.

Kada v. State (1991) 8 NWLR (pt. 208)134 at 146; Nwokedi (Alias Anazonwu) v. State (1977) 3 SC 35; Orji v. The State (2008) 4 SCNJ 89 per Onu JSC.

In drawing an inference of guilt from circumstantial evidence great care must be taken not to fall into serious error. It follows therefore that circumstantial evidence must always be narrowly examined as that type of evidence may be fabricated to cast suspicion on innocent persons.

Accordingly, before circumstantial evidence can form the basis of conviction the circumstances must clearly and forcibly suggest that the appellant committed the offence.

The law is trite that circumstantial evidence of this kind may be fabricated to case suspicion on another. It is therefore necessary before drawing the inference of the guilt of the Appellant to be sure that there is no other co-existing circumstance which would weaken or destroy the inference.

To convict on circumstantial evidence we would like to emphasis that there is no rule that a judge must as a matter of law, not convict unless he is satisfied that the facts proved are not only consistent with the guilt of the accused but also such as to be inconsistent with any other reasonable conclusion.

It is necessary to quote in extensio the confessional statement of the Accused on which the learned trial judge relied strongly:-

“I Haruna Stephen wish to confess the following facts that I was employed into NEPA security guard section on 30/5/2001 and I was working with one Engineer Ogali G.M. Generation House at Wuse 2 Abuja. I work at about one year with Engineer. I was later transferred to one Miss E.N. Igwe’s house at Area II Deeper Life Junction opposite Harvester Hotel Garki Abuja. On the 27/2/2003 when I started work there, my second by name Ayuba Aminci, the security man told me that there is no problem in the house concerning our duty but only the woman, Miss Barrister E.N. Igwe has problems that she did not want anybody to leave the house after reporting on duty then I told Ayuba that there is nothing since I have signed to do the work. Later the following day being 28/2/2003 the driver to the Madam by name Adesanya asked me that now is my job here with the Madam. I told him that there is no problem. I continued my work together with Ayuba 24 hours duty. I started seeing some changes from Madam anytime any one of us is late from duty she will not be happy. She instructed us to be changing ourselves from 6 o’clock to 6 o ‘clock after observing our attitude on coming to duty, she asked us to be reporting by 7 o’clock in the morning any time we are relieving ourselves but anytime we come to duty late she will be quarreling with us. I was disturbed the way Madam was treating us which made me to go to the office and reported this matter to my supervisor by name Fatrotic to change us from Madam’s house but he pleaded that we should be patient when we continue with our duty Madam started warning us that we are not disciplined and we shall face the consequence we were again called at the office by Mr. S.M. and asked what happen with us and Madam who came and reported that we are coming (sic) work late. We told them in the office that it was late coming issue that we have misunderstanding. We were warned by our S.M. to wake up on out duty. We also comply but one day the driver to Madam called me and advised me that we should be careful with Madam that she can dismiss anybody from work that he is patient with her it was from there I started thinking in my mind how I will do to leave that house. One day when I reported on duty I was thinking the way Madam was disturbing us how to be changed from the house but I remember what we were told in the office. I then forget and performed the duty on that day. On Monday being 29/12/2003 I reported on duty though I am suppose to come work on 27th to 28th December 2003. I did not come due to Christmas. She asked me why I was not on duty on the above mentioned date. I told her that I was not felling fine. She told me no problem. On Wednesday which I supposed to closed from duty being 31/12/2003 my reliever did not come work by name Samaila Audu, there is one bottle of mineral on the top of television that she give us at the security post to be watching. I took the television with the bottle and the key of the car to her she came out and collected the key and the bottle through window of the ground floor. She asked me to go back with the T. V and bring it later it was by 4 o’clock in the evening that this event took place around 7 a.m. Madam opened her room door and asked me to bring the television I took it to her but she asked me to help her and take the TV upstairs and put it on the ground as I was coming down to the ground floor I went to Madam and hold her I drag her near the center table beside the TV. We all fall together on the Center table I held her on the neck she took the Center table and knocked it on my face where I sustained some minor injuries where the blood started rushing on my face. I took the breaking glass and hit her head she fell down and she was struggling on the floor. I left her and come outside and took my batten and went inside and hit her on her head. She finally give up and die and I was thinking either to run but I came out and took one stone under the flower and hit the win screen of the car parked (out) inside the compound in my uniform the blood was already socked I removed the uniform and clean the blood on the side of the car parked in the compound after finishing all this I removed the key from the bunch of keys and put the bunch of the key on the top of fridge and came out with the single one and locked the door it was by 9 a.m. that I finally leave the house there is security man near out compound that saw me when I was coming out like one Maimuda. I went near one uncompleted building I was deciding either to run but I just came back to the house later. I went to the police station Asokoro and reported the matter, the single key that I removed I throw it outside inside the bush. I removed the sum of forty thousand five hundred naira N40,500 in her purse I give this money to one girl by name Mary who has beer pallor (sic) at Kubwa to keep for me the denomination of the money are as follows: two hundred naira notes is one bundle twenty thousand naira N420,000.00, hundred naira note ten thousand naira 4410,000.00, five hundred naira note were mixed together with two and ten hundred naira notes with one MTN card I gave the new diary to Mary it was Madam that dash me the diary. I promised police to take them to the girl at Kubwa the name of the beer pallor (sic) is Lagen Palace Kubwa this act that I do it was out of annoyance out of unhappy mind with Madam. I suspected they speak Idoma that is all what I know”.

It is therefore seen just like the learned trial judge that the Confessional Statement was direct, cogent and compelling especially with the exhibits, surrounding circumstances and the testimonies of the prosecution witnesses confirming that the actus reus was performed by the accused and the mens rea in place. In fact that the act was deliberately considered and executed by the accused/appellant cannot be questioned.

The circumstantial evidence sufficient to support a conviction in a criminal trial, especially murder, must be cogent, complete and inequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner and no one else is the murderer (offender). The facts as can be seen are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt Lori v. The State (1980) NSCC 269; Udedibia v. The State (1970) 11 SC; Adepetu v. The State (1998) 9 NWLR (pt. 556, 185; Nasamu v. The State (1979) NSCC 140.

I find no difficulty in going along with Mr. Ojo for the Respondent that the trial judge rightly admitted the exhibits and gave probative value to them. This is because it is now too late in the day and without any anchor for the Accused/Appellant to seek to impugn the value or weight to be placed on those exhibits especially Exhibits M2 and M3 the Statements of the accused when at the trial they initially opposed to their admissibility and later withdrew their objection which resultant effect is that the documents were in order and the court could if satisfied rely upon them to reach the conclusion it did, that is that the death of the deceased, Evelyn N. Igwe (Barrister) was caused by the accused/appellant.

This issue is answered not in favour of the Appellant.

ISSUE NO. 6:

Whether it is proper for the trial judge to overlook the incongruous pieces of evidence in Exhibit M3 (3rd statement of accused) and attach weight to Exhibit M3 in coming to the conclusion that the Appellant did cause the death of Barrister Miss E. N. Igwe.

Mr. Ologunorisa for the Appellant stated that the prosecution led evidence through PW1 that on the fateful day the accused killed the deceased and left to Kubwa with forty thousand, five hundred naira (N40,500.00). That a close perusal of Exhibit M3 relied on by the trial judge shows that the accused stated that the incident took place around 7.00p.m. and Exhibit M3 also stated that accused finally left the house at 9.a m the following day. He said having regard to the course of human events such pieces of evidence appear incongruous and the trial Court in such circumstances was wrong to believe such evidence. That it is clear that the trial judge did not evaluate the inconsistencies in the prosecution’s case. That the prosecution thereby failed to establish that the act of the accused caused the death of the deceased and the accused was entitled to a discharge and acquittal. He cited Lori v. The State (1980) 8 – 11 SC 81; Mohammed Abacha v. State (2003) 3 ACLR 333 at 373.

Mr. Rotimi Ojo for the Respondent submitted that for contradictions to be established they must be material, fundamental and capable of rendering the evidence unreliable and not capable of being acted upon. That such contradictions or inconsistencies must relate to material ingredients of the offence charged. That minor inaccuracies and discrepancies that do not touch the justice or substance of a case should not be sufficient ground to disturb the judgment. He cited Ibe v. State (1992) 5 NWLR (pt. 244) 642 at 647; Agbo v. State (2006) 6 NWLR (pt. 977) 545 at 549; Uwaekweghinya v. State (supra).

It is now settled law that for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to the prosecution’s case, the conflict or contradiction must be substantial and fundamental to the main issues in question before the court.

A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated not when there is just a minor discrepancy between them. In other words, two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short of or contains some minor differences in details. Ibe v. State (1992) 5 NWLR (pt. 243) 642; Agbo v. State (2006) 6 NWLR (pt. 977) 545 at 564 (SC), Gabriel v. State (1989) 5 NWLR (pt.122) 457.

It is not in all cases where there are discrepancies or contradictions in the prosecution’s case that an accused person will be entitled to an acquittal. Rather it is only when the discrepancies or contradictions are on material point or points in the prosecution’s case, which creates some doubt that the accused person is entitled to an acquittal because in such circumstances it is not possible to hold that the evidence for the prosecutions is overwhelming. Agbo v. State (2006) 6 NWLR (pt. 977) 545 (SC); Ekanem v. Queen (1960) SCNLR 42; Nasamu v. State (1979) 6 – 9 SC 153; Kalu v. State (1988) 4 NWLR (pt. 90) 503; Ogoala v. State (1991) 2 NWLR (pt. 175) 509; Sele v. State (1993) 1 NWLR (pt. 269) 276; Wankey v. State (1993) 5 NWLR (pt. 295) 542; Opayemi v. State (1985) 2 NWLR (pt. 5) 101.

The contradiction that would make a Court disbelieve a witness has to be on a material point in the case, I would like to state here that not every contradiction, however minute, would be sufficient to damnify a witness and as in the matter of the confessional statement Exhibit M3, that the appellant’s counsel calls incongruous pieces or contradictions are really of no moment especially when the pieces of evidence showed the incident took place 7 pm on 31/12/2003 and he reported to the police after 9 am of 1/1/2004. There was no inconsistency that would be of assistance to the Appellant rather the duration between the incident and report was long enough to show that what occurred was pre-meditated. See Nasamu v. State (1979) NSCC 140.

In fact the Appellant used the time between the incident and the report to try to clear up the act and the link to himself, including sending the money taken from the deceased to his girl friend as far away as Kubwa. For it blows the mind to think that the woman, accused/appellant said was killed on 31/1/03 at 7 pm and accused did nothing to alert anyone until nearly 24 hours later, precisely 9 am of 1/1/04. The contradictions, counsel for Appellant is referring to if any were not of any substance, to affect the evidence of the prosecution and so the case of Nasamu v. State (1979) NSCC 140 would not avail the appellant.

This issue No. 6 having been resolved in favour of the Respondent it is clear that the learned trial Judge was on the right course when he found the Appellant guilty of the homicide punishable with death. The conviction is also in order and there being nothing to the contrary I dismiss this appeal and affirm the decision, conviction and sentence of the trial High Court.

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Other Citations: (2010)LCN/3545(CA)