Ahmed Sule Vs State (2001)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C. 

The appellant, Sule Ahmed (Alias Eza) was on 1st August 1997 convicted by Ajanah, J. sitting at the Okene Division of the High Court of Kogi State of the offence of Culpable Homicide punishable with death under section 221 of the Penal Code. He was sentenced to death by hanging. His appeal to the Court of Appeal from his conviction was dismissed by that court on 26th October, 1999. He has now appealed to this court from the decision of the Court of Appeal.

The charge against the appellant was that on or about 31st day of March 1996 at Idogido Area, Okene, in Okene Local Government Area he committed culpable homicide punishable with death in that he caused the death of Momoh Jimoh Isiaka by “firing a gun at his head with the intention of causing his death”. By section 220 of the Penal Code the offence of culpable homicide is committed where a person causes death.

“(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or

(b) by doing an act with the knowledge that he is likely by such act to cause death; or

(c) by doing a rash or negligent act,”

Where a person is charged with an offence of culpable homicide the sequence of inquiry is whether the person alleged to be killed is dead; the cause of his death and whether any act of the accused person as described in section 220 (a) – (c) is the cause of death.

This was not exactly the sequence adopted by the trial judge who proceeded on the footing that “the sequence of the ingredients of the offence was:

1. That the death of a human being has occurred
2. That the accused Person caused the death of that human being
3. That the accused intentionally caused the said death or had reason to know that death will be the likely and not the Probable consequence of the act.”

In a charge of culpable homicide if the cause of death has not been proved it is futile and illogical to proceed to consider whether it was the accused who caused the death. The primary enquiry into the cause of death of a person is an enquiry into the biological cause of death. The question at that stage is what caused the death and not who. When what caused the death has been ascertained the question who caused the death is one of causal connection between the act of the accused and the biological cause of death.

In this case the facts as found by the trial Judge and confirmed by the Court of Appeal are clearly stated in the leading judgment of the court below, delivered by Musdapher, JCA as follows:-

“On the 31st day of March, 1996, the “Ebe” Festival was held at Okene town. The Festival involved two rival masquerades of Avokuta and Arijenu. The festivities ended at 7.30 am on that day. Both masquerades enjoyed rival supporters. At the termination of the Festival, the supporters of Avokuta masquerade were escorting them out of the Venue at Idogida quarters, when the Arijenu rival supporters pursued them and attacked them, with guns. The appellant was identified by the prosecution witnesses as the one who was leading the attackers and was seen when he shot the deceased on the head. The deceased was later taken to the hospital where he died three days later. Out of the six prosecution witnesses five of them claimed to have seen the appellant firing his gun at and hitting the deceased on his head.”

The appellant, as rightly noted in the said leading judgment, denied shooting the deceased and claimed that he left the venue of the festival earlier and took a different route to his compound.

The Court of Appeal showed no difficulty in confirming the finding of fact made by the trial Judge that the deceased was dead.

In the leading judgment of the court Musdapher, JCA in relation to the death of Jimoh Isiaka said:

” …. there is abundant evidence that Momoh Jimoh Isiaka, was shot in the head with a gun. He fell down and was taken to the hospital where he died. From the evidence, there is no dispute whatsoever that the deceased a human being is dead.”

As to whether the act of the appellant caused his death he said:

“There is no dispute, that Momoh Jimoh Isiaka died. The people who knew him saw him fall after he was hit on the head by a gun shot fired by the appellant. He was taken to the hospital and died three days later. The graphic account given by PW 2, 3, 4, 5 and 6 conclusively in my view gives no other room other than that it was the act of the appellant that caused the death of the deceased. It is also beyond any dispute that any person who shot a person on the head with a gun intends to kill him.”

The evidence produced by the prosecution to prove the death of the deceased and the cause of death were the reports which the Judge rejected in these words:

“The learned counsel to the accused has therefore in my view, rightly joined issues on whether Momoh Jimoh Isiaka or any person for that matter died. This doubt was further compounded by the failure of the prosecution to call as a witness the doctor who treated the deceased up to the time of his death or the one who examined his corpse after his death. The need to call a doctor seems to be warranted by the material discrepancies between the medical report on the corpse of the deceased Exhibit 3 and the evidence of the witness PW1 who produced the report and the other discrepancies pertaining to date and identification as pointed out. Because of the issue of uncertainty about the occurrence of the information contained in Exhibits 2 & 3 and its (sic) authenticity, I agree with the learned counsel to the accused that the said exhibits cannot be relied upon to establish the death of a human being. Therefore I disregard the two documents.” (emphasis mine)

The main question in this appeal is whether after rejecting the medical report of the autopsy on the deceased and by not calling medical evidence of the cause of death the conclusion that the act of the appellant caused the death of the deceased can be sustained.

It was argued in the court below, as well as on this appeal, by counsel for the appellant that since the deceased was in the hospital for three days after the alleged shooting, a medical doctor should have been called to give direct evidence of the cause of death. It was argued that with the rejection of the medical reports, Exhibits 2 and 3, which was the mainstay of the prosecution’s case, the case collapsed.

For the respondent it was argued that while proof of death is usually established by medical evidence, where the cause of death is obvious medical evidence of the same is no longer necessary. Counsel for the respondent illustrated this proposition by a situation in which a person is attacked with a lethal weapon and dies immediately or soon thereafter. He placed reliance on the cases of Azu v. The State (1993) 6 NWLR (Pt. 299) 303; Lori v. State (1980) 8 – 11 SC 81 and Bakuri v. The State (1965) NMLR 163,164.

In directing himself on this aspect of the appeal in the court below Musdapher, JCA, was of the opinion that medical evidence, though desirable to prove the cause of death in homicide cases, is not a sine qua non as death may be proved or established by sufficient satisfactory and conclusive evidence showing beyond reasonable doubt that the death in question resulted from the particular act of the accused. He went on to say:

“So where the circumstances of the attack on the deceased are clear, the injuries inflicted upon him as a result of the attack are described to lead to no other conclusion than that the deceased died as the result of the attack and the injuries, the court can convict even if there is no medical evidence and even if the body of the deceased is not recovered. See Ogundipe v. Queen (1954) 14 WACA 465; Ogundiyan v. State (1991) 3 NWLR (Pt 181) 519; Babuga v. State (1996) 7 NWLR (Pt. 460) 279.”

Cause of death is always a fact in issue in a case of homicide and that fact in issue may be proved by direct evidence or by circumstantial evidence. Contrasted with circumstantial evidence, direct evidence is evidence of fact in issue. When it is testimonial evidence it is evidence of the witness who claims personal knowledge of the fact he testifies about. Circumstantial evidence on the other hand is evidence of relevant fact from which the existence or non-existence of facts in issue may be inferred.

In relation to cause of death medical evidence is direct evidence of the cause of death, a fact in issue, when given, by the doctor who carried out the autopsy or by a doctor who treated the deceased. There may be other direct evidence such, as for instance, that of a witness who saw a deceased person beheaded by another. Circumstantial evidence of cause of death may be relied on where direct evidence is absent. It is in such situation that cause of death may be proved other than by medical evidence. There is now no peradventure about it but that where medical evidence is not available cause of death can be proved by circumstantial evidence. A clear statement of the law was recently made in the case of Azu v. State (supra) where at page 313 Ogundare, JSC, delivering the leading judgment of this court said:

“Be that as it may, however, it is now well settled that as much as medical evidence is desirable to prove the cause of death in homicide cases, it is not a sine qua non. It has been laid down in a long line of cases that cause of death can be established by sufficient evidence, other than medical evidence, showing beyond reasonable doubt that death resulted from the particular act of the accused. See Akpuenya v. The State (1976) 11 SC 269,278. In Lori v. The State (1980) 8 -11 SC 81 at 97, Nnamani, J.S.C. observed as follows:-

‘It is conceded that medical evidence is not always essential. Where the victim in circumstances in which there is abundant evidence of the manner of death medical evidence can be dispensed with. See Adamu Kumo v. The State (1968) NMLR 227; and Tonara Bakuri v. The State (1965) NMLR 163.’

In Adamu v. Kano Native Authority (1956) 1 FSC 25; (1956) SCNLR 65 the Federal Supreme Court held that the court could infer cause of death from the circumstances surrounding the death where there is lack of medical evidence. See also Ayinde v. The State (1972) 3 SC 153; Edim v. The State (1972) 4 SC 160; and The State v. Edobor (1975) 9 – 11 SC 69. In all these three cases, the body was not even found but this court held in each one that the fact of death was provable by circumstantial evidence. See also Essien v. The State (1984) 3 SC 14, 18 Where Bello, JSC (as he then was) observed:-

“It is trite law that although medical evidence as to the cause of death is desirable, it is not essential in all cases of homicide. Where medical evidence is not available as to the cause of death, the court may infer the cause of death upon circumstantial evidence adduced before it.”

It is easier to state the principles than to apply them and therein lies the critical issue in this appeal. Circumstantial evidence is proof of fact by inference from facts proved. In Udedibia & Ors. v. The State (1976) 11 SC 133 at 138-139 this court observed that: –

“Where … direct testimony of eye-witnesses is not available, the court is permitted to infer from the facts proved, the existence of other fact that may be logically inferred.”

In Lori & Anor v. The State (1980) 8-11 SC 81 at 86 (1980) 12 NSCC 269, 272 this court aid, per Nnamani, JSC:-

“But the circumstantial evidence sufficient to support a conviction in a criminal trial especially murder, must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner and no one else is the murderer. The fact must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”

In that case Nnamani, J.S.C., at p. 273, cited the opinion of Idigbe, J.S.C who, quoting with approval a passage from Emperorv. Browning 39 1.C 323, had stated:

“In a case in which there is no direct evidence against the prisoner but only the kind of evidence that is called circumstantial, you have a two fold task; you must first make up your mind as to what portions of the circumstantial evidence have been established; and then when you have that quite clear, you must ask yourselves: is this sufficient proof It is not sufficient to say “if the accused is not the murderer, I know of no one who is. There is some evidence against him and none against anyone else. Therefore I will find him guilty.’ Such a line of reasoning as this is unsound for experience shows that crimes are often committed by persons unknown who have succeeded in wholly covering their tracks.”

It is easy to fall into error of merely citing and relying on cases in which the accused has been found guilty of murder, notwithstanding the absence of medical evidence, without adequate regard to the circumstances of each case. Often circumstances are not alike. In almost all the cases in which medical evidence has been dispensed with there has been evidence of the nature of the injury or wound inflicted on the deceased by the accused. In quite a number of such cases death of the deceased had been instantaneous or had occurred shortly after the attack. In Adamu v. Kano Native Authority (1956) SCNLR 65; (1956) 1 FSC 25 there was evidence that the deceased was stabbed in the stomach and back with a knife. In that case there was oath sworn according to Islamic Law that “the stab Kato inflicted on their brother was the cause of his death.” That oath was held sufficient to prove cause of death in Islamic Law.

In Bakuri v. The State (1965) NMLR 163 the deceased man was stabbed in the abdomen with a knife and he died on the spot. This court held that “in case of this nature where a man was attacked with a lethal weapon and died all the spot it is hardly necessary to prove the cause of death; it can properly be inferred that the wound inflicted caused the death.”

In Enwenonye & Ors v. The Queen(1955) 1 FSC 1, the fact as contained in the head-note were as follows:-

“The three appellants were convicted for murder. There was no conclusive identification of the body of the deceased, but it was proved that the first and second appellants attacked the deceased and his brother, and that after the deceased was shot by the first appellant and his brother by the second appellant both fell into a river, and the first and second appellants retrieved their bodies and took them ashore into the bush. The deceased has never been seen or heard of since. A body which could not be identified was exhumed some time later in the bush. It was found buried with another body identified as that of his brother. The trial Judge found both appellants guilty of murder and held on the evidence that it had been established that the deceased had been killed by the first appellant actively aided by the second appellant.”

Confirming the conviction, the West African Court of Appeal was of the view that evidence in the case amounted to “direct evidence of the killing.”

In Azu v. The State (supra) the deceased who was attacked and hit on the head by the appellant with a kitchen stool slumped exclaiming that the appellant had killed him. He was rushed to the hospital but died on the way.

In the case of Idirisu v. The State (1968) NMLR 88 the fact that the deceased died on the spot consequent on being hit on the head with a pestle by the accused was held to be sufficient proof of cause of death even medical evidence was ignored. Similarly, in Homman v. The State (1967) NMLR 23 the deceased struck on the head by the appellant had died on the spot. There were eye witnesses who testified that they saw the appellant bludgeoned the deceased to death with an axe which he carried and the deceased died on the spot. In these circumstances the court rejected the contention that the conviction of the appellant of murder should be quashed for lack of proof of cause of death. In the recent case of Alarape v. The State (2001) 5 NWLR (Pt.705) 79, (2001) 2 SC 114 recently decided by the court, as recounted in the leading judgment of this court, delivered by Iguh, JSC, it was “not in dispute that the deceased died on the spot at the scene of crime as a result of gun shot injuries he sustained.” (Emphasis mine)

I have endeavoured by citation of these cases to show the circumstances in which proof of cause of death by medical evidence was dispensed with. The circumstances that may justify all inference that an accused caused the death of another when the body is not found are not the same as would justify an inference that the act of the accused caused the death of the deceased whose body is found. To rely on cases of absence of the corpus delicti for a general principle that medical evidence can be dispensed with without, distinction as to the circumstances is clearly erroneous and misconceived. Any reliance on such cases for the determination of this appeal cannot be right as the circumstances are far apart.

In the present case the evidence accepted by the trial Judge was to the effect that the appellant shot the deceased on the head and that the latter screamed that the appellant had shot him and fell on the ground. However, he did not die on the spot, but died about two or three days later. There was no description of the injury, if any, suffered by the deceased when he was shot or of the condition in which he was when taken to the hospital. The witnesses who could have testified to these facts were the persons who took the deceased to the hospital; or, the hospital officials who admitted him for treatment; or, the doctor who treated him on admission. None of the latter two gave evidence. Notwithstanding the absence of this vital evidence and without adverting to the inadequacy of the evidence given, the trial Judge used words such as “injuries” and “violent injuries” about which there was no evidence. The Court of Appeal came nearer a correct statement of the proper approach when Musdapher, JCA, delivering the leading judgment of that court, said:

“So where the circumstances of the attack on the deceased are clear, the injuries inflicted upon him as a result of the attack are described to lead to no other conclusion than that the deceased died as the result of the attack and the injuries, the court can convict even if there is no medical evidence and even if the body of the deceased is not recovered.” (Emphasis mine)

The conclusion by the court below that the cause of death of the deceased “was crystal clear” is flawed in that that court did not apply the principle it had itself stated, in that there was no description of the injuries inflicted on the deceased, nor was there evidence from which it could be inferred as a matter of certainty, rather than suscipion, that the deceased died as a result of injuries. It is not unknown that an apparently healthy person may collapse and die. Where death follows injury inflicted on the deceased and the fact of the injury is relied on without medical evidence as circumstantial evidence of cause of death, the injury suffered must be so well described and be of such a nature, from such description, that the injury itself must speak clearly and unmistakably for itself taken together with the surrounding circumstances to amount to prima facie proof of cause of death.

The truth of the matter, it appears to me, is that reliance by the prosecution on the medical reports (Exhibits 2 and 3), which the trial Judge had described as worthless, accounted for the absence of any other evidence as to the nature of injury suffered by the deceased or evidence from which the essential inference can be drawn. Absence of such evidence leads to mere suspicion that the act of the appellant may have caused the death of the deceased. It is now trite that suspicion, however strong, will not amount to proof. In Onyenankeya v. The State (1964) 1NMLR 34, this court cited with approval the case of R. v. Oledinma 6 WACA 202 where it was held that:

“…….. to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did.”’

and went further to add:

“The fact that the defence did not suggest that death arose from other causes is no confirmation of evidence which falls short of showing that death did arise as a result of the appellant’s act. The onus to establish this is not on the defence, it is on the prosecution.”

The principle of these two cases applies to the present case. Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the court not to convict an accused of an offence not proved by evidence.

In my view the trial court, on the evidence before it, should have found that the cause of death had not been proved and consequently, he should have held that the charge of homicide had not been established. However, it is clear that there were concurrent findings of the trial court and the court below which show that the appellant did shoot and hit the deceased. There is no merit in the contention advanced by counsel for the appellant on this appeal in regard to alleged contradictions in the prosecution case and in regard to the defence of alibi set up by the appellant and rightly rejected by the trial Judge.

Although the appellant had been wrongly convicted of homicide, it is evident that the evidence disclosed a lesser offence for which he should have been convicted. There is no doubt that the appellant had caused hurt which in section 240 of the Penal Code is defined as “bodily pain, disease or infirmity.” The evidence is insufficient to find that the hurt was grievous hurt in terms of section 241 of the Penal Code, there being no description of the injury caused by the appellant’s act. However, there is section 248(1) of the Penal Code which provides as follows:

“Whoever, except in the case provided for by section 244, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting or any instrument, which used as a weapon of offence is likely to cause death, or by means of fine or any heated substance or by means of electricity or by means of any corrosive or explosive substance or by the administration of any poisonous or deleterious substance or by means of any animal, shall be punished with imprisonment for a term which may extend to three years or with fine or with both.”

On the facts as found by the trial court, I hold that the appellant committed the offence of voluntarily causing hurt by dangerous means contrary to section 248(1) of the Penal Code and should have been convicted of that offence.

For the reasons I have stated the appeal of the appellant is allowed. The judgment of the Court of Appeal is set aside. The conviction of the appellant by the trial Judge of homicide is quashed. The appellant is found guilty of the offence of causing hurt by dangerous means contrary to section 248(1) of the Penal Code and he is convicted accordingly and sentenced to a term of 3 years imprisonment with effect from the date of his conviction by the trial High Court, that is to say, 1st August, 1997.

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SC.27/2001