Basil Akpa V. The State (2006)

LawGlobal-Hub Lead Judgment Report

KEKERE-EKUN, J.C.A.

The appellant in this appeal was arraigned before the High Court of Katsina State on a one-count charge as follows:

“That you Basil Akpa on or about the 3rd day of December, 1989 at about 18.30 hours at Jibia within Jibia Local Government Area committed culpable homicide punishable with death in that you caused the death of Ikechukwu Njoku by doing an act to wit: butchering him and throwing his legs and hands into a pit latrine with the intention and knowledge that his death would be the probable consequence of your act and thereby committed an offence punishable under section 221 of the Penal Code.”

He pleaded not guilty to the charge.

At the trial, two witnesses testified for the prosecution while the appellant testified in his own defence and did not call any other witness. The prosecution tendered four exhibits. At the conclusion of the trial, the learned trial Judge in a considered judgment delivered on 11/8/97, found the appellant guilty of the offence charged and sentenced him to die by hanging.

Dissatisfied with the judgment, the appellant has appealed to this court by his notice of appeal dated 9th October, 1997 containing five grounds of appeal. Pursuant to an order of this court, the appellant filed an amended notice of appeal on 11th May, 2005. The amended notice of appeal also contains five grounds of appeal. The grounds of appeal as contained in the amended notice of appeal are set out hereunder:

“Ground 1

The decision of the learned trial Judge is unwarranted and unreasonable having due regard to the evidence and the length of time for trial.

Ground 2

The learned trial Judge misdirected himself on facts and came to a wrong decision which is erroneous in law by relying solely on exhibit “3” (confessional statement) in convicting and sentencing the appellant.

Particulars, Errors and Misdirection

(i) The appellant denied the signature on the confessional statement (exhibit 3) being his own.

(ii) It is well established that where appellant denied a signature, less weight should be attached to it.

(iii) The said exhibit “3” was tendered and objected to by the appellant (sic) counsel on 27/9/92 while trial within trial was conducted on 16/7/96.

(iv) There were no evidences (sic) to corroborate the confessional statement.

Ground 3

The learned trial Judge misdirected himself on facts and came to a decision which is erroneous in law by not examining fully the material contradictions in the prosecution’s case.

Particulars

(i) The charge against the appellant read “That you Basil Akpa on or about the 3rd day of December, 1989 at about 18.30 hours at Jibia within Jibia Local Government Area committed culpable homicide punishable with death ….

(ii) PW1 told the court that the offence was committed at Jibia on 17th December, 1989.

Ground 4

The learned trial Judge erred in law by not holding that there were doubt (sic) in the case of the prosecution and resolving same in favour of the appellant and in consequence discharge and acquit the appellant thereby occasioning a miscarriage of justice.

Particulars of error

(i) The charge read that the appellant committed the offence on 3/12/89 while PW1 told the court that it was committed on 17/12/89 and the accused told the court he left Jibia on 15/12/89.

(ii) PW1 and PW2 testified on an incident. That occurred on 17/12/89 while the medical report issued to them was dated 6/12/89.

Ground 5

The decision of the learned trial Judge is a nullity having sat in Chambers throughout the trial and judgment of this case.

Particulars

(i) The appellant was arraigned before the trial Judge in Chambers.

(ii) The appellant was tried in Chambers throughout the course of his trial and not open court.

(iii) The judgment against the appellant was delivered in Chambers.”

In the appellant’s brief of argument dated 11/5/05, two issues were formulated for the determination of this appeal. They are:

1. Whether the guilt of the appellant was proved and established beyond reasonable doubt having regard to the evidence adduced before the trial court. (Grounds 1, 3 and 4 of the amended notice of appeal).
2. Whether the conviction and sentence of the appellant on the confessional statement (exhibit 3) was proper on the facts of the case and nature of the evidence produced by the respondent. (Ground 2 of the amended notice of appeal)

The respondent in its brief of argument dated 20/6/05 and filed the same day, adopted the issues as formulated by the appellant. I am of the view that issue No. 1 formulated by the appellant is all embracing and will conveniently dispose of this appeal. The submissions of learned counsel in respect of both issues will therefore be considered together.

At the hearing of the appeal on 1/6/06, Mr. Nnamonso Ekanem, learned counsel for the appellant adopted his brief of argument and urged us to allow the appeal. Mr. Magaji Liman, Senior State Counsel, Ministry of Justice, Katsina State adopted the respondent’s brief of argument and urged us to dismiss the appeal.

Before going into the merit of the appeal, it is worthy of note that no issue was formulated in respect of ground 5 of the amended notice of appeal. That ground is deemed abandoned and it is accordingly struck out. See: Atunrase v. Phillips (1996) 1 NWLR (Pt. 427) 637.

The facts of the case before the lower court as gathered from the printed record is as follows;

PW1 P.C. Ibrahim Sanni testified that a case of culpable homicide was referred to him at S.I.I.B. Katsina. He and one Sgt. Dauda Madawaki went to Jibia to investigate. In the course of their investigation they recovered a human head in a refuse dump. They also recovered a human torso without legs, arms and neck. The recovered body parts were taken to the mortuary. Photographs of the head and torso were admitted in evidence as exhibit 1 and 1B respectively. According to PW2, Sgt. Dauda Madawaki, the brother of the deceased identified first, the head and later the legs they recovered as belonging to his brother, Ikechukwu Njoku. Also in the course of their investigation, they learnt that one Ikechukwu Njoku visited the appellant at Jibia and did not return home. Based on this information, a search was conducted in the appellant’s home and shop. Nothing incriminating was found in his house. However they found the floor of the inner room of his shop soaked with blood. They also found a mattress in the same room soaked with blood. They found bloodstains by the hole of a pit toilet attached to the inner room and noticed an unusual odour emanating from it. When the toilet was opened with the help of health officials two human legs were found. According to PW2, the brothers of the deceased were present when the legs were recovered and they identified them as belonging to their brother. The legs were also taken to the mortuary. A post-mortem report was obtained.

The appellant was subsequently arrested on 2/2/90. PW1 testified that he volunteered a statement under caution. An objection was raised to the tendering of the statement on the ground that the signature thereon was not the appellant’s and that he was seeing the document for the first time. The learned trial Judge ordered a trial within trial. At the conclusion of the trial within trial, the statement was admitted in evidence as exhibit 3. In his defence, the appellant denied any knowledge of the incident. He also stated that he did not know the deceased.

In his brief of argument learned counsel for the appellant submitted that the burden of proof in a criminal case lies on the prosecution who must establish the guilt of an accused person beyond reasonable doubt and that failure to do so would result in the matter being resolved in favour of the accused.

Learned counsel submitted that there were material contradictions in the evidence before the trial court, which ought to have been resolved in favour of the appellant. He referred to the evidence of PW1 who stated that the offence was committed in Jibia on 17/12/89 and compared it to exhibit 3, which states that the offence was committed on 3/12/89. He submitted that the evidence of PW1 also contradicts the charge, which alleges that the offence was committed on 3/12/89. He cited the following authorities: The State v. Danjuma (1997) 5 SCNJ 126 at 136 paragraphs 27 – 31, (1997) 5 NWLR (Pt. 506) 512; Ikemson v. The State (1989) 1 CLRN 1 at 12; (1989) 3 NWLR (Pt. 110) 455. He submitted further that the prosecution has a duty to prove the particulars of the charge and that where it fails to do so the accused should be acquitted. He relied on the case of: Clark v. The State (1986) 4 NWLR (Pt. 35) 381 at 402.

With regard to exhibit 3 (the statement of the appellant), learned counsel submitted that for the conviction of an accused person to be based on a confessional statement, the statement must be tested as to its truth. He relied on: Kasa v. The State (1994) 5 NWLR (Pt. 344) 269 at 285 where His Lordship, Uwais, JSC set out the following questions to guide the court:

1. Is there anything outside the statement to show that it is true?
2. Is it corroborated?
3. Are the facts stated in it true as far as can be tested?
4. Did the accused person have the opportunity of committing the offence?
5. Is the confession possible?
6. Is the confession consistent with other facts that have been ascertained and proved?

On the first test, learned counsel submitted that there is nothing outside exhibit 3 to show that it is true because PW1 testified that the offence was committed on 17/12/89 while the charge read 3/12/89. He also referred to the appellant’s evidence that he travelled out of Jibia on 15th December, 1989.

On the second test he submitted that the medical report dated 6/12/89 was issued before 17/12/89, the date PW1 said the offence was committed. Furthermore, he stated that neither the brother of the deceased nor the sanitary inspectors who dug the pit and recovered the deceased’s body parts was called as a witness. He argued that they are material witnesses who should have been called to testify. He cited the case of: Baaga v. The State (1996) 7 NWLR (Pt. 460) 279, (1996) 7 SCNJ 217 at 228.

On the third test he adopted his submissions regarding the first and second tests. He went further to submit that even though appellant was alleged to have conspired with others to commit the offence, no evidence was led to that effect.

On the fourth test he submitted that the appellant could not have had the opportunity to commit the offence having regard to his testimony that he travelled out of Jibia on 15/12/89 while the offence was alleged to have been committed in Jibia on 17/12/89. On the fifth test, learned counsel submitted that the confession was not possible because the appellant made the statement in the presence of some police officers who were not called to testify in the trial within trial.

On the sixth test he submitted that exhibit 3 is not consistent with other facts, which have been ascertained and proved because it is inconsistent with the evidence of PW1 and the medical report regarding the date the offence was allegedly committed. He submitted that some other evidence no matter how slight should establish the truth of matters admitted in the statement of an accused person. He cited the case of: Anyanwu v. The State (1986) 5 NWLR (Pt. 43) 612 at 624. He submitted that an examination of the evidence of PW1, PW2 and DW1 shows that exhibit 3 did not pass the test laid down in Kasa’s case (supra) and that the learned trial Judge therefore erred in law by relying on it to convict the appellant. He relied on: Edhighere v. The State (1994) 5 NWLR (Pt. 344) 312 at 322.

In response to the submissions made on behalf of the appellant, learned counsel for the respondent conceded that the burden of proof in a criminal case lies on the prosecution throughout and never shifts. With regard to the alleged discrepancy between the date the offence was allegedly committed as stated in the charge and the evidence of PW1, he submitted that only contradictions that are material to the charge would be resolved in favour of the accused. He submitted that where the contradictions are minor the courts are enjoined to ignore them. He relied on the case: Samuel Theophilus v. The State (1996) 1 NWLR (Pt. 423) 139.

He noted that the incident took place sometime in December 1989 while PW1 and PW2 testified 1992. He urged the court to consider the contradiction as a minor one.

He also submitted that the use of the words “on or about the 3rd day of December 1989” in the charge means that it is not necessary to prove the precise date on which the offence was committed. He cited the case of: Awopejo v. State (2000) 6 NWLR (Pt. 659) 1 at 13 F-G. He submitted further that the appellant was not misled by the evidence of PW1 because throughout the trial he was aware that he was on trial for allegedly causing the death of one Ikechukwu Njoku (m) at Jibia on or about the 3rd day of December, 1989. He distinguished the case of State v. Danjuma (supra) cited by learned counsel for the appellant from the facts of this case on the ground that in Danjuma case there was a clear contradiction between the evidence of the two leading prosecution witnesses regarding the manner in which the incident occurred. He submitted that in the instant case the different dates stated do not affect the substance of the charge. He submitted that the case of Clark v. The State (supra) cited is also inapplicable to the present case as there was adequate evidence before the court to prove the particulars of the charge.

In response to the submissions of learned counsel for the appellant regarding exhibit 3, the appellant’s statement, learned counsel for the respondent submitted that a trial within trial ought not to have been conducted by the trial court because the appellant did not challenge the admissibility of the statement on the ground that it was not made voluntarily but on the ground that he did not make it at all. He submitted that the denial of a confessional statement does not constitute grounds for rejecting it. He relied on the case of: Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455 at 467 G, 476 C and 477 E – F.

He submitted that where a statement is found to have been made voluntarily, a conviction could be founded on it alone without corroboration. He cited the following cases in support of this submission: Bature v. The State (1991) 5 NWLR (Pt. 194) 697 at 707 E; Ikemson v. The State (supra) at 476 C; Osakwe v. The State (1994) 2 NWLR (Pt. 326) 273, (1994) 2 SCNJ 57 at 64. He submitted further that the conviction of the appellant was not based solely on exhibit 3. He referred to page 36 of the printed record.

He submitted that exhibit 3 passed the test in Kasa v.The State (supra) because:

(a) The appellant took himself to Ugbo Police Station after the incident.

(b) The evidence of PW1 and PW2 that they found the legs of the deceased in the appellant’s toilet corroborated the contents of exhibit 3.

(c) The facts as contained in exhibit 3 are true and tested having regard to the blood stain found on the wall of the appellant’s shop and the two legs found in his toilet by PW1 and PW2.

(d) The appellant had the opportunity of committing the offence because both he and the deceased were residing at Jibia prior to the commission of the offence and further that the appellant admitted in his evidence under cross-examination that he was at Jibia doing his business on 3/12/89. Page 30 line 4 of the printed record referred to.

(e) The statement is possible, as it was made after words of caution were administered to him, he signed it and it was countersigned by a superior police officer.

(f) The statement is consistent with the medical report, which states the cause of death to be decapitation.

Learned counsel submitted that exhibit 3 contains a detailed account of how the appellant committed the offence with others now at large. He submitted that this fact distinguishes the instant case from the case of: Anyanwu v. The State (supra) relied upon by learned counsel for the appellant. He urged this court to hold that exhibit 3 passed the truthfulness test and to resolve the issue in favour of the respondent.

The appellant in this case was charged under section 221 of the Penal Code, which provides:

“221. Except in the circumstances mentioned in section 222 culpable homicide shall be punishable with death –

(a) if the act by which the death is caused is done with the intention of causing death; or

(b) if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act of any bodily injury which the act was intended to cause.”

The ingredients of the offence of culpable homicide punishable with death are:

(a) that the death of a human being actually took place;

(b) that such death was caused by the accused;

(c) that the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.

All the ingredients must be proved or co-exist before a conviction could be secured. Failure to establish any of the ingredients would result in an acquittal. See: Adava v. State (2006) 9 NWLR (Pt. 984) 152 at 167 F-H and 171 B-D.

By virtue of section 138 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 the standard of proof of the commission of a crime is proof beyond reasonable doubt. The evidential burden of proof rests squarely on the prosecution and does not shift throughout the proceedings. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt and therefore if the court, based on the evidence before it, entertains no doubt that the accused person committed the offence, the burden would have been discharged and the conviction of the accused person will be upheld even on the evidence of a single witness. See: Obiakor & Anor. v. The State (2002) 10 NWLR (Pt. 776) 612; State v. Musa Danjuma (1997) 5 NWLR (Pt. 506) 512; Bolanle v. State (2005) 7 NWLR (Pt. 925) 431; Alonge v. I.G.P. (1959) SCNLR 516.

In contending that the prosecution failed to establish the guilt of the appellant beyond reasonable doubt in the instant case, learned counsel for the appellant argued mainly that there were material contradictions in the prosecution’s case regarding the date the offence was alleged to have been committed, as stated in the charge vis-avis the evidence of PW1 on the issue and the date the medical report was issued. The appellant’s contention is that the evidence of PW1 does not support the charge. He submitted that while the charge states that the offence was committed on or about 3/12/89, PW1 testified that the offence was committed on 17/12/89. He also noted that in exhibit 3, the statement of the appellant tendered by the respondent, the offence was alleged to have been committed on 3/12/89 and that the medical report, also marked exhibit 3 is dated 6th December, 1989.

The law is settled that it is not every contradiction or inconsistency in the prosecution’s case that would warrant the acquittal of an accused person. The contradiction or inconsistency must be substantial and fundamental to the main issue before the court. Where the alleged contradiction in evidence is not material to the facts in issue, and therefore does not raise a doubt in the mind of the court no explanation is required for them and the accused would not be entitled to benefit therefrom See: Ikemson v. State (1989) 3 NWLR (Pt. 110) 455 at 474 G – H; 475 C; 479 G-H; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139 A-B; Okonji v. State (1987) 1 NWLR (Pt. 52) 659.

Material evidence has been described as evidence, which on account of its logical nexus with the issue, tends to influence decisively the establishment of the fact in issue. See: Ikemson v. State (supra) at 474 H.

There is also a distinction between contradiction and discrepancy in evidence. In the case of Agbo v. State (2006) 6 NWLR (Pt. 977) 545 at 564 C-F the Supreme Court cited with approval its earlier decision in: Ayo Gabriel v. The State (1989) 5 NWLR (Pt. 122) 457 at 468-469 per Nnaemeka-Agu, JSC inter alia thus:

” … A piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated, not when there is just a minor discrepancy between them … .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 a little more than what the other piece of evidence says or contains some minor difference in details.”

I shall now apply these principles to the facts of the present case. The appellant was charged with culpable homicide punishable with death. The ingredients of the offence have been set out earlier in this judgment. The prosecution established that the death of one Ikechukwu Njoku actually took place. In this regard PW1 and PW2 testified as to how they recovered a human head and torso and subsequently two legs, which the brother of the deceased identified as belonging to Ikechukwu Njoku. The prosecution tendered a post-mortem report, exhibit 3, which stated the cause of death as decapitation.

The second ingredient is that the death of the deceased was caused by the accused. The two prosecution witnesses testified as to how their investigation led them to the appellant. The brother of the deceased informed them that he visited the appellant on 3/12/89 and did not return home. After a search of the appellant’s shop, bloodstains were found in the inner room leading to the pit toilet. When the pit toilet was opened two human legs were found. They were identified by the brother of the deceased as belonging to the deceased. In his statement, exhibit 3, the appellant gave a detailed account of how the deceased met his death. At page 7 lines 5-25 of exhibit 3 he stated thus:

“Felix took the iron rod brought by me and hit Ikechukwu twice on the neck. I also took the iron rod from Felix and continued hitting Ikechukwu on the head and his body until he collapse …. Felix who is a carpenter went and brought a saw. Before he brought the saw myself, Christian Kalu and Peter took the body of Ikechukwu to the toilet. When Felix came with the saw he cut the head, the two hands and legs. We did the cutting because the whole body of Ikechukwu could not enter into the toilet. When Felix cut the hands, the head and the two legs they took the body and the head leaving behind with me the legs and two hands which I threw into the latrine pit in my shop.”

The learned trial Judge in the course of his judgment at page 36 of the printed record stated:

“The statement which is a confessional one looked reliable to me… .I refer particularly to page 6 of the statement from line 5 down to page 7 of it. It can clearly be seen from the pages how the accused person killed the deceased person in the manner confirmed by the medical report.”

The third ingredient of the offence is that the act of the accused was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act. The learned trial Judge had this to say at page 36 of the record: “The statement said the victim, Mr. Ikechukwu was hit on the head with iron rod several times until when they thought he died before his head and other parts of the body were chopped off. This left no doubt that the accused person or persons had intended the obvious and natural (consequences) of their action. The statement further confirmed to me that the accused person knew that he killed the deceased person, Mr. Ikechukwu thus putting to rest the issue of identification.”

Having regard to the evidence before the trial court the above findings of the learned trial Judge could not be faulted. The prosecution had proved all the ingredients of the offence.

As to whether there were contradictions in the evidence of the prosecution witnesses, as rightly pointed out by the learned trial Judge at page 35 of the record, the only witness who mentioned the date the offence was allegedly committed was PW1. Since PW2 did not mention any date at all it cannot be said that his evidence contradicted that of PW1. The charge reads:

“That you Basil Akpa on or about the 3rd day of December, 1989 at about 18.30 hours at Jibia within Jibia Local Government Area committed culpable homicide punishable with death in that you caused the death of Ikechukwu Njoku by doing an act to wit: butchering him and throwing his legs and hands into a pit latrine with the intention and knowledge that his death would be the probable consequence of your act and thereby committed an offence punishable under section 221 of the Penal Code.”

It has been held that when the phrase “on or about” is used in a charge it expresses some amount of uncertainty. While the word “or” introduces an alternative, the word “about” means “a little more or less than”, “a little before or a little after.” Thus when the phrase “on or about” is used in a charge it is not necessary to prove the precise date the alleged offence was committed. See: Awopejo v. State (2000) 6 NWLR (Pt. 659) 1 at 13 F-G; Rex v. Eronini 14 WACA 366. The entire evidence adduced by the prosecution established beyond reasonable doubt that one Ikechukwu Njoku was killed at Jibia within Jibia Local Government Area of Katsina State, that his body was dismembered and his legs thrown into a pit latrine, that his death was caused by the accused and that the accused knew that death would be the probable consequence of his act. The statement of the accused, exhibit 3 and the medial report dated 6/12/89 are consistent with the fact that the death of the deceased occurred on or about 3/12/89 as stated in the charge. The appellant in his evidence under cross-examination at page 30 of the record admitted that he was in Jibia on 3/12/89. In my view the evidence of PW1 given in 1992, three years after the commission of the offence, stating that the offence was committed on 17/12/89 is a minor discrepancy that did not create any doubt whatsoever in the mind of the coul1 as to the commission of the offence or the involvement of the appellant.

I have read the authority of State v. Musa Danjuma (supra) relied upon by learned counsel for the appellant and find that it is distinguishable from the facts of the present case. In that case the Supreme Court per U. Mohammed, JSC at pages 133 lines 38-39; 134, lines 41-135 line 1; and 137 lines 3-6 found that there were material contradictions between the evidence of the two principal witnesses because they gave different versions of what happened on the day of the incident. The court found that the contradictions cast reasonable doubt upon the guilt of the accused and that the trial court rightly gave him the benefit of the doubt. In the instant case there was no material contradiction in the evidence of the prosecution witnesses to warrant the discharge and acquittal of the appellant on that ground.

The other issue raised in this appeal is whether the conviction and sentence of the appellant on the confessional statement was light in view of the facts and the evidence adduced by the respondent. Section 27(1) and (2) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 provides:

“27(1) A confession is a statement made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.

(2) Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”

The law is settled that an accused person can be convicted on his confessional statement alone. See Ikemson v. State (supra) at 476 C; Ntaha v. State (1982) 4 SC 1. In the case of Edhigere v. State (1996) 8 NWLR (Pt. 464) 1 at 10 B-C the Supreme Court held:

“As had been decided in a long line of decided cases by this court, it is trite law that a free and voluntary confession of guilt made by a prisoner whether under examination by a Magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily prove, is sufficient to warrant conviction without any corroborative evidence as long as the court is satisfied of the truth of the confession. See Jimoh Yusufu v. The State (1976) 6 SC 167; and Edet Obosi v. The State (1965) NMLR 119. It has also been laid down that it is desirable however to have outside a defence’s confession to the police some evidence be it slight of the circumstances which make it probable that the confession is true vide Paul Onochie & 7 Ors. v. The Republic (1966) NMLR 307; and Onuoha v. The State (1987) 4 NWLR (Pt. 65) 331.”

A voluntary confession of guilt, if it is fully consistent and probable is usually regarded as evidence of the highest and most satisfactory nature if there is independent proof that a criminal act has in fact been committed by someone, that the accused had the opportunity of committing the offence and that the confession was consistent with the other facts that had been ascertained and proved. See: Rabiu v. The State (2005) 7 NWLR (Pt. 925) 491 at 513 B – G; Phillip Kanu & Anor. v. R (1952) 14 WACA 30 at 32; R v. Chukwuji Obiasa (1962) 2 SCNLR 402, (1962) NNLR 354; R v. Sykes (1913) 8 CAR 233.

In the instant case, the appellant’s statement was admitted in evidence after a trial within trial had been conducted. The learned trial Judge found that the statement was indeed made by the appellant and that it was reliable. He found that the narration of events surrounding the commission of the offence as contained in exhibit 3 was consistent with other evidence before the court. He found that the statement as to how the deceased was killed was consistent with the cause of death as stated in the medial report tendered by the prosecution. He also found that the contents of exhibit 3 were consistent with the evidence of PW1 and PW2 regarding their recovery of the various body parts of the deceased as well as his identity and the fact that the appellant knew him prior to the incident.

One of the contentions made on behalf of the appellant was that exhibit 3 was inconsistent with the evidence of PW1 and PW2 and the medial report because the medical report was made on 6/12/89, which is before 17/12/89 the date on which the PW1 stated that the offence was committed. I have dealt with this issue earlier in the judgment when I held that the prosecution proved all the essential ingredients of the offence and that the evidence of PW1 regarding the date the offence was committed was a minor discrepancy that is not fatal to the prosecution’s case. There is no evidence on the record that the appellant was misled as to the charge he was facing and on which he was tried.

In the instant case, it would not be correct to say as contended by the appellant that his conviction was based solely on exhibit 3. The learned trial Judge considered other evidence outside exhibit 3 before coming to the conclusion that the prosecution had proved its case beyond reasonable doubt. The learned trial Judge even went further to ascertain whether the exceptions provided for in section 222 particularly sub-section (4) of the Penal Code were applicable to this case. He rightly concluded that they were not. I find no reason to interfere with the judgment of the trial court.

In conclusion, I hold that this appeal lacks merit. The sole issue for determination in this appeal is resolved against the appellant. The appeal is accordingly dismissed. The judgment of the Katsina State High Court delivered on 11/8/97 in charge No. KTH/I8C/90 per Sada Abdulmuminu, J. is hereby affirmed.

---

Other Citations: (2006)LCN/2061(CA)