Hajara Mohammed V. The State (2016)

LawGlobal-Hub Lead Judgment Report

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

This appeal is against the judgment of the Kaduna State High Court in Charge No KDH/Z/2C/2013 delivered by Honorable Justice M. L. Bello on the 5th of June, 2014. The Appellant was arraigned before the lower Court on a two count charge of conspiracy to commit culpable homicide under Section 97 of the Penal Code Law of Kaduna State and culpable homicide punishable with death under Section 221 of the Penal Code of Kaduna State. The Appellant was charged along with one Jamilu (now at large) and was alleged to have conspired with Jamilu to commit an illegal act and to have, in company of the said Jamilu, caused the death of one Abdullahi Sanni Abba on the 28th of February, 2012 in Kakiyeyi Village in Zaria Local Government Area of Kaduna State by attacking him with dangerous weapons and inflicting machete wounds on his face, back, neck and head and leaving him in a pool of his blood with the knowledge that death would be the probable consequence of the act.

?The Appellant pleaded Not Guilty and the matter proceeded to trial and in the course of which the Respondent called four witnesses and

1

tendered two exhibits in proof its case against the Appellant. The Appellant testified as the sole witness in her defence.

At the conclusion of trial and after the final addresses of Counsel, the lower Court found the Appellant Guilty on the two count charge and sentenced her to death by hanging. The Appellant was dissatisfied with the judgment of the lower Court and she caused her Counsel to file a notice of appeal against it. The notice of appeal is dated the 20th of August, 2014 and it contained three grounds of appeal.

In canvassing the case of the Appellant in this appeal, his Counsel filed a brief of arguments dated the 27th of February, 2015 on the 2nd of March, 2015 and the brief of arguments was deemed properly filed and served by this Court on the 27th of April, 2015. In response, Counsel to the Respondent filed a brief of arguments dated the 25th of May, 2015 on the 26th of May, 2015. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs as their oral submissions in this appeal.

Counsel to the Appellant formulated three issues for determination in this appeal and these

2

were:
i. Whether the lower Court was right in convicting the Appellant for conspiracy and culpable homicide when it failed to warn itself of the dangers of so doing.
ii. Whether the lower Court was right in relying on the contradictory evidence of the first and second prosecution witnesses to convict the Appellant.
iii. Whether the trial Court has properly evaluated and acted on the evidence placed before it in arriving at its judgment and if it has failed, whether that has occasioned a miscarriage of justice.
?
In arguing the first and second issues for determination, Counsel stated that the evidence of the first and second prosecution witnesses were such that no reasonable Court would rely on it to convict without warning itself of the dangers of doing so and he thereafter traversed through the testimonies of the first and second prosecution witnesses and stated that the testimonies of the third and fourth prosecution witnesses added no value to the case of the Respondent against the Appellant. Counsel stated that the testimonies of the prosecution witnesses were contradictory and inconsistent and that the law is that where such

3

contradictions and inconsistencies cast a reasonable doubt on the guilt of an accused person, that accused person should be given the benefit of doubt and should not be convicted on the basis of such unreliable evidence and he referred to the case of Onuchukwu Vs State (1998) 4 NWLR pt 547) 576. Counsel stated that the onus is on the prosecution to prove the guilt of an accused person beyond reasonable doubt and that suspicion, no matter the gravity, is not a substitute for the establishment of the guilt of an accused on the standard laid down by law and a trial Court should not speculate on evidence and he referred to the cases of Ugwu Vs State (1998) 7 NWLR (Pt 558) 397, Mohammed Vs State (1997) 9 NWLR 169 and Emeka Vs State (1998) 7 NWLR (Pt 559) 567. Counsel urged this Court to find that there was no evidence to sustain the charge against the Appellant.
?
On the third issue for determination, Counsel urged this Court to hold that the lower Court did not properly evaluate and act on the evidence before him in arriving at the conclusion that the Appellant was guilty as charged and stated that a trial Court has a primary duty to consider all the evidence

4

before it and that this includes a rationalization of the facts available on each side upon which a finding is necessary to be made and he referred to the cases of Mogaji Vs Odofin (1978) 4 SC 91 and Adebayo Vs Adesei (2005) All FWLR (Pt 240) 152. Counsel stated that the ingredient of a good judgment is a consideration of all evidence before the Court and that in the instant case, the lower Court relied on the contradictory testimonies of the first and second prosecution witnesses, without properly evaluating and without considering the evidence given by the two witnesses under cross-examination, in coming to its conclusion on the guilt of the Appellant. Counsel stated that a serious miscarriage of justice was occasioned by the non-appraisal and/or the improper evaluation and appraisal of the evidence by the lower Court and that the judgment thus lacked the basic attributes of a good judgment and that this Court is empowered to interfere with the evaluation of evidence carried out by the lower Court in such circumstances and review the evidence and he referred to the cases of Olafemi Vs Ayo (2010) All FWLR (Pt 526) 547, Strabag Construction (Nig) Ltd Vs

5

Ibitokun (2010) All FWLR (Pt 535) 203, Fagbenro Vs Arobadi (2006) All FWLR (Pt 310) 1575.

Counsel concluded his arguments by urging this Court to allow the appeal and to set aside the judgment of the lower Court and the sentence passed therein on the Appellant and to discharge and acquit the Appellant.

In his response, Counsel to the Respondent distilled two issues for determination in this appeal and these were:
i. Whether the learned trial Judge was right to have convicted the Appellant on the basis of the eye witness account of the first prosecution witness and the evidence of the second and third prosecution witnesses where the evidence fixed the Appellant at the scene of the crime and neither her nor her Counsel was able to remove her, coupled with the corroborative and contradictory statement of the Appellant.
ii. Whether the learned trial Judge was right to have held that the prosecution proved the offences of criminal conspiracy punishable under Section 97 and culpable homicide punishable with death under Section 221 of the Penal Code against the Appellant beyond reasonable doubt.
?
In arguing the two issues for determination,

6

Counsel reiterated the long established principle that in any criminal trial, the burden of proof lies with the prosecution and that this burden is not proof beyond shadow of doubt but beyond reasonable doubt and he referred to the case of Miller Vs Minister of Pensions (1994) 2 All ELR 372, amongst others, and he also restated the ingredients of the offence of conspiracy as (i) an agreement between two or more persons to do or cause to be done an illegal act or a legal act by illegal means; (ii) where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreements (iii) specifically that each of the accused individually participated in the conspiracy. Counsel also restated the three ingredients of the offence of culpable homicide punishable with death as (i) that the deceased died; (ii) that the death resulted from the act of the accused person; and (ii) that the act of the accused person was intentional with knowledge that death will be the probable consequence of his act and he referred to the cases of Ogba Vs State (1992) 2 NWLR (Pt.222) 164, Abegunde

7

Vs State (1995) 5 NWLR (Pt 448) 270 and Kaza Vs State (2008) 32 WRN 46.

Counsel stated that in the instant case, the evidence against the Appellant was circumstantial and that for it to ground a conviction it has to lead to one conclusion which is the guilt of the Appellant and the facts must be consistent, cogent and irresistible in coming to that conclusion and he referred to the cases of Onah Vs State (1985) 12 SC 59 and Obiakor Vs State (2002) 10 NWLR (Pt774) 612. Counsel stated that a trial Court may rely on direct or circumstantial evidence to prove the offence of culpable homicide and that what is important is to establish the guilt of the accused person. Looking at the three ingredients of the offence of culpable homicide, Counsel stated that there was no contest between the parties on the first ingredient, that the deceased died, and he traversed through the testimonies of the first to the third prosecution witnesses on the second ingredient and stated that the Respondent led cogent evidence through the evidence of the first prosecution witness who testified that he saw the Appellant, along with the people that attacked the deceased and inflicted

8

the injuries that led to the death, and that he identified the Appellant at the Police Station two days thereafter by the clothes she wore because they were the same clothes she wore on the day of the incident and that the testimony of the first prosecution witness was corroborated by the testimonies of the second and third prosecution witnesses.

Counsel traversed through the evidence of the Appellant in her defence which was a complete denial of the charges against her and stated that the testimonies of the first and second prosecution witnesses fixed the Appellant at the scene of the crime and that the presence of the Appellant at the scene of the crime was a relevant fact under Section 4 of the Evidence Act and it confirmed her involvement circumstantially in conspiring with the other suspect to commit the crime and he referred to the case of Khaleel Vs The State (1997) 8 NWLR (Pt 516) 237. Counsel sated that the contents of the extra judicial statement of the Appellant was in tandem with the testimony of the second prosecution witness as to her presence at the scene of the crime and that the combined effect is that they established the offence of

9

conspiracy between the Appellant and her other co-conspirators now at large. Counsel stated that the offence of conspiracy is complete and consummated the moment the agreement or plot is formed even if the conspirators did nothing in pursuance of the agreement and it is rarely or seldom proved by direct evidence and it is a matter of inference and involvement can be inferred from all collateral circumstances and that the mere seeing of the Appellant together with the co-accused, now at large, was enough evidence to prove conspiracy and he referred to the cases of Onochie Vs The State (1966) NMLR 307, Erim Vs The State (2004) 5 NWLR (Pt 346) 525, Waziri Vs The State (1997) 3 NWLR (Pt 496) 689.
?
Counsel stated that the Respondent can boldly say that the evidence of the first and second prosecution witnesses was a direct identification of the Appellant and it was sufficient to remove any uncertainty in the mind of the trial Court as to the identity of the Appellant as a co-conspirator in the killing of the deceased. Counsel stated that the oral evidence rendered by the Appellant in her defence contradicted her extra judicial statement in several material

10

parts and that the law is that the evidence of the Appellant at the trial should be disregarded and he referred to the case of Akpabio Vs State (1994) 7 NWLR (Pt 359) 642. Counsel stated that all these surrounding circumstances which are irresistible point in one direction, that the Appellant conspired and actually took part in the killing of her husband and that the trial Court was thus right in holding that the Respondent proved its case against the Appellant beyond reasonable doubt. Counsel stated that it is the duty of a trial Court to evaluate evidence and that where a trial Court unquestionably evaluates the evidence and appraises the facts of a case and comes to a particular conclusion supported by the evidence, as in the instant case, it is not the business of an appellate Court to substitute its own views for that of the trial Court and he referred to the cases of Adeniran Vs Shabi (2004) 2 NWLR (Pt 857) 375 and Ezukwu Vs Ukachukwu (2004) 17 NWLR (Pt.902) 227.

Counsel concluded his arguments by urging this Court to resolve the two issues for determination in favour of the Respondent and to dismiss the appeal and affirm the judgment of the

11

lower Court and the sentence passed therein on the Appellant.

Now, it is trite law that an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment answers the following questions positively: (i) did the prosecution prove the essential elements of the offence; (ii) was the case proved beyond reasonable doubt; and (iii) was the evaluation of the evidence of the prosecution and defence witnesses properly done – Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360. In this wise, it is the view of this Court that there is only one issue for determination in this appeal and this is:
Whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offences of conspiracy to commit culpable homicide and culpable homicide punishable with death against the Appellant beyond reasonable doubt?

All the arguments of Counsel to both parties shall be considered and resolved under this issue for determination.

?It is settled in our criminal jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person

12

who asserts it and this is, more often than not, the prosecution. By virtue of Section 135 (1) of the Evidence Act, where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal – Ike Vs State (2010) 5 NWLR (Pt 1186) 41, Gabriel Vs State (2010) 6 NWLR (pt 1190) 280, Garba Vs State (2011) 14 NWLR (Pt.1266) 98, Obi Vs State (2013) 5 NWLR (Pt 1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt 1391) 298. It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence

13

“of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt – Uzoka Vs Federal Republic of Nigeria (2010) 2 NWLR (Pt.1177) 118, Jua Vs State (2010) 4 NWLR (Pt 1184) 217, Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548, Ali Vs State (2015) 10 NWLR (Pt 1466) 1.

The Appellant was convicted for conspiracy to commit culpable homicide and for culpable homicide punishable with death. The Courts have stated that, as an offence, conspiracy is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means and that the actual agreement alone constitutes the offence of criminal conspiracy and it is unnecessary to prove that the act has in fact been committed – Omotola Vs State (2009) 7 NWLR (Pt 1139) 148 and Yakubu Vs Federal Republic of Nigeria (2009) 14 NWLR (Pt 1160) 151. The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other, and concluded agreements can be inferred by what each

14

person does or does not do in furtherance of the offence – Shurumo Vs State (2010) 19 NWLR (Pt 1226) 73, Jimoh Vs State (2014) 10 NWLR (Pt 1414) 105. Conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. It is based on common intent and purpose and once there is such evidence to commit the substantive offence, it does not matter what any of the conspirators did – Sule Vs State (2009) 17 NWLR (Pt.1169) 33, Ajuluchukwu Vs State (2014) 13 NWLR (Pt.1425) 641.
It is trite that in a charge of conspiracy, proof of actual agreement is not always easy to come by and thus a trial Court can infer conspiracy and convict on it if it is satisfied that the actual persons pursued, by their acts, the same object one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design – Usufu Vs State (2007) 3 NWLR (Pt 1020) 94, Tanko Vs State (2008) 16 NWLR (Pt 1114) 597 and Yakubu Vs State (2014) 8 NWLR (Pt 1408) 111. Reading through the judgment appealed against, it is obvious that the trial Court did

15

not make any direct and specific finding on conspiracy, and it inferred the guilt of the Appellant for the offence of conspiracy from the facts led by the Respondent against the Appellant in proof of the substantive offence of culpable homicide punishable with death. The Supreme Court has stated that the proper approach to an indictment which contains a conspiracy charge and the substantive charge is to first deal with the latter, that is the substantive charge, and then proceed to see how far the conspiracy count had been made out in answer to the fate of the charge of conspiracy – Osetola Vs State (2012) 17 NWLR (Pt 1329) 251 and Jimoh Vs State (2014) 10 NWLR (Pt 1414) 105. In considering the complaints of the Appellant in this appeal therefore, this Court will start with the findings made by the lower Court on the substantive offence of culpable homicide punishable with death and from there consider whether the charge of conspiracy was properly sustained by the Respondent.
?
The Appellant was alleged to have, in company of the said Jamilu, caused the death of one Abdullahi Sanni Abba by attacking him with dangerous weapons and inflicting machete wounds on

16

his face, back, neck and head and leaving him in a pool of his blood with the knowledge that death would be the probable consequence of the act. It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Sabi Vs State supra, Obi Vs State supra, Babatunde Vs State supra.

In the finding on the guilt

17

of the Appellant, the lower Court stated in the judgment thus:
“In the instant case the prosecution’s case is that the accused conspired with the co-accused (now at large) to kill her deceased husband. 4 witnesses have testified for the prosecution.
PW1 gave evidence that on the fateful day he saw a person lying down and some persons choking him on his body. He shouted but nobody came out. He went to a nearby school and called some people. The deceased was identified to be Abdullahi Sani. Under cross-examination he saw a lady with a head tie. He saw her going to the people who were beating and choking the deceased.
The evidence of PW2 is that he heard a shout for help and he came out. He sighted a person coming and asked whom he is; a woman’s voice said she is the one. She passed and he saw her open the door to the house of the deceased, who was killed, and entered.
It is in the evidence of PW1 that he identified the accused person by her head tie which she was wearing as the woman he saw outside on the day of the incident.
PW3 gave evidence that the deceased was his friend. The deceased has told him that the accused called her

18

boyfriend Jamilu (co-accused) with his phone. In his presence, the deceased called the 2nd accused and asked him what was between him and the 1st accused. Jamilu told them that he was her boyfriend but has nothing to do with her now. The deceased gave him money and asked him to go. In the morning he was told that the deceased was killed.
The evidence of PWs 1 and 2 to my mind shows that the accused was out at the time her husband was out and being brutalized by his killers. Both witnesses saw a woman at the time the crime was taking place. PW1 identified the woman to be the accused person. He identified her by the head tie she wore on that night being the same he saw her wearing at the Police Headquarters.
This to my mind is direct identification. Head ties are of many numbers, but it is of a number with the accused. She was seen with the head tie at the scene and the same was seen with her at the police station. There is no need for identification parade.
Both PWs 1 and 2 testified of seeing a woman together with the other criminals who killed the deceased. PW2 saw her entering the house of the deceased and PW1 identified her by the head tie

19

she wore. There is visual identification evidence of the accused by these PWs 1 and 2 which I believe has destroyed both the evidence of DW1, the accused, and the submissions of learned Counsel to the accused on the identification of the accused…
In her statement the accused stated knowing the co-accused as she owed some money to him for sewing. In her evidence in chief she denied knowing the co-accused. The evidence of PW3 is clear and unequivocal that the accused communicates with the co-accused, she was using the phone of the deceased to even call the co-accused.
All these are evidence of surrounding circumstances which, to my mind, by undersigned coincidence is capable of proving a proposition to wit the accused conspired to kill her deceased husband and did actually participated in the crime with the accuracy of mathematics. It is no derogation of evidence when this Court holds that the evidence against the accused is circumstantial. The circumstances relied upon by this Court point unequivocally, positively, unmistakably and irresistibly to the fact that the offence of conspiracy and culpable homicide were committed and that the

20

accused is part of it …? (see pages 45 to 47 of the records)

From the submissions of Counsel in this appeal and from the above excerpts of the judgment of the lower Court, there is no contest that the person mentioned in the charge against the Appellant as the deceased, one Abdullahi Sanni Abba, is dead. The parties were thus agreed that the first ingredient of the offence of culpable homicide punishable with death was established.

On the second ingredient of the offence of whether it was the act of the Appellant that caused the death of the deceased person, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant -Udosen Vs State (2007) 4 NWLR (Pt 1023) 125, Oche Vs State (2007) 5 NWLR (Pt 1027) 214, Ekpoisong Vs State (2009) 1 NWLR (Pt 1722) 354, Illiyasu Vs State (2014) 15 NWLR (Pt 1430) 245. This point was made by the Supreme Court in Oforlete Vs State (2000) 12 NWLR (Pt 631) 415 thus:
“In every case where it is alleged that death has resulted from the act of a

21

person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence”
?
In this case, the Respondent led no evidence as to the cause of death of the deceased.
It is correct that the charge read that the Appellant, in company of the co-accused, caused the death of the deceased by attacking him with dangerous weapons and inflicting machete wounds on his face, back, neck and head and leaving him in a pool of his blood with the knowledge that death would be the probable consequence of the act. But the Respondent neither tendered a medical report confirming that the deceased suffered such injuries and that these caused his death nor did any of the four prosecution

22

witnesses, not even the Investigating Police Officer, the fourth prosecution witness, give evidence as to the nature of the injuries inflicted on the deceased by his attackers and from which the cause of death could be inferred. It is correct that the first prosecution witness stated that he saw some people using something to choke the deceased, but this is not that same as using ?dangerous weapons and inflicting machete wounds on his face, back, neck and head? stated in the charge. It is also correct that the Respondent tendered three photographs of the deceased showing injuries on his body, but again the fourth prosecution witness who tendered the photographs was not the person who took them or commissioned the taking of the photographs and it was his evidence that he was not present when the photographs were taken and that he knew nothing of the matter until the two full days after the alleged incident when the matter was transferred to the State Criminal Investigation Department in Kaduna where he was serving at the time. There is thus no assuredness that the injuries shown on the deceased, and which may have caused his death, were inflicted by

23

his attackers, particularly as the evidence of the first prosecution witness, who stated that he saw the attack, was that he only saw the deceased being choked by some people.

Going further, it is axiomatic in our jurisprudence that the Prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes – Emeka Vs State (2001) 14 NWLR (Pt.734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt 1066) 300, Ilodigwe Vs State (2012) 18 NWLR (Pt.1331) 1, Umar Vs State (2014) 13 NWLR (Pt.1425) 497.
In the instant case, it is obvious from the above excerpt of the judgment that the lower Court relied on the circumstantial evidence present in the testimonies of the prosecution witnesses to convict the Appellant.

Now, circumstantial evidence is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and/or precision of mathematics.

24

It is not a derogation of evidence to say that it is circumstantial. However, to be sufficient to ground a conviction in a criminal trial, circumstantial evidence must be complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the defendant and no one else did the deed and as such, it is only the defendant and no one else, who should be criminally culpable for the offence alleged or charged. The facts must be incompatible with the innocence or non-culpability of the defendant and incapable of explanation by any other reasonable hypothesis or consideration than that of his guilt – State Vs Njoku (2010) 1 NWLR (Pt 1175) 243, Oladotun Vs State (2010) 15 NWLR (pt 1217) 490, Ahmed Vs Nigerian Army (2011) 1 NWLR (Pt.1227) 89, State Vs Okpala (2012) 3 NWLR (Pt 1287) 388.
?The Court must take great care in drawing an inference of guilt of an accused person from circumstantial evidence so as not to fall into serious error. Therefore, circumstantial evidence must be narrowly examined so that a possibility of fabrication to cast suspicion on an innocent person is ruled out. Before a defendant can be convicted of a capital

25

offence on circumstantial evidence, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than the offence can the facts be accounted for. A conviction on circumstantial evidence must point to the guilt of a defendant with the accuracy of mathematics. A Court cannot convict on circumstantial evidence, especially in a case concerning a capital offence where such evidence points in more than one direction – Osuoha Vs State (2010) 16 NWLR (Pt 1219) 364, Margari Vs State (2010) 16 NWLR (Pt 1220) 439, Ahmed Vs Nigerian Army (2011) 1 NWLR (Pt 1227) 89 and Udor Vs State (2011) 11 NWLR (Pt 1259) 472. In other words, for circumstantial evidence to sustain conviction, the following conditions must be met (i) the evidence must irresistibly and unequivocally lead to the guilt of the defendant; (ii) no other reasonable inference could be drawn from it; and (iii) there must be no co-existing circumstances which could weaken the inference. All the three conditions must

26

exist in the adduced evidence to ground and sustain the conviction of a defendant – Shehu Vs State (2010) 8 NWLR (Pt 1195) 112.

The question that arises in this matter is – whether the Respondent led sufficient circumstantial evidence to prove its case against the Appellant beyond reasonable doubt?

The totality of the evidence led by the first, second and third prosecution witnesses and upon which the lower Court relied in coming to its decision on the guilt of the Appellant have been adequately summarised in the above excerpts of the judgment of the lower Court and need no repetition. Suffice to say that the core issue in the evidence of the prosecution witnesses on the case against the Appellant was on the identification of the Appellant as one of the persons that carried out the alleged attack on the deceased. The issue was raised by Counsel to the Appellant before the lower Court and it was resolved in the judgment. The question is whether the issue was properly resolved by the lower Court?

?The law is that where there is a controversy over the identification of the person or persons alleged as the actual perpetuators of the offence charged,

27

the Respondent must lead cogent identification evidence which tends to show that the person charged is the same as the person who was seen committing the crime. Whenever the case of an accused person depends wholly or substantially on the correctness of the identification of the accused or defendant which the defence alleges to be mistaken, a trial Court must warn itself of the special regard for caution and must meticulously examine the evidence proffered to see whether there are any weaknesses capable of endangering or rendering worthless any contention that the accused was sufficiently recognized by the witness. The trial Court is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was actually the person who committed the offence with which he is charged ? Ikemson Vs State (1989) 3 NWLR (Pt 110) 455, Ndidi Vs State (2007) 13 NWLR (Pt 1052) 633, Alufohai Vs State (2015) 3 NWLR (Pt 1445) 172, Okanlawon Vs State (2015) LPELR-SC.300/2012.

To ascribe any value to the evidence of an eye witness regarding the identification of a criminal, the Courts in guarding against cases of mistaken

28

identity must meticulously consider the following (i) circumstances in which the eye-witness saw the suspect or defendant; (ii) the length of time the witness saw the subject or defendant; (iii) the lighting conditions; (iv) the opportunity of close observation; and (v) previous contacts between the two parties. A proper identification will take into consideration the description of the accused given to the police shortly after the commission of the offence, the opportunity the victim had of observing the accused, and what features of the accused noted by the victim and communicated to the police marked him out from other persons – Ikemson Vs State supra, Ndidi Vs State supra.
?
From the facts of this case, the incident leading up to the charge took place in the middle of the night, around 4am, and there was power failure and no light in the area of the scene of the crime at the time. Only the first prosecution witness identified the Appellant as one of the perpetuators of the offences charged. The second prosecution witness did not identify the Appellant and he only said he heard a female voice and he saw the female open the door to the house of the

29

deceased and went inside, but he did not identified the voice he heard as belonging to the Appellant. The first prosecution witness did not give any description of the Appellant to the police immediately after the commission of the offences and neither did he communicate any distinctive feature of the Appellant that marked her from other persons. The first prosecution witness did not say that he had ever met or knew the Appellant before the incident and he testified that he identified the Appellant two days after the incident at the Police headquarters by her head tie which he said was similar to the one worn by the lady he saw amongst the perpetuators on the night of the incident.

The witness did not state for how long he observed the incident of the attack on the deceased and he stated under cross examination that the scene of crime was at least two houses away from his house, and that it was from there that he witnessed the goings on, and that he did not identify the Appellant until she had been identified by someone else. The witness did not state the distinctive feature of the head tie that made it peculiar to only the Appellant in the entire

30

neighbourhood; whether it was in the sewing of it or the manner of tying or the material used and neither did he state how he was able to see the perpetuators of the crime in the dark, at 4am, without light from the distance of about two houses.

It is trite law that credible evidence to sustain a criminal charge must be such evidence that is reasonable, probable, cogent, unequivocal and compelling as to lead to only one rational conclusion, that it was the accused person, and no one else, that committed the offence with which he is charged. Where an eye witness account does not meet this quality of evidence, it cannot sustain a conviction – Anekwe Vs State (2014) 10 NWLR (Pt 1415) 353. There was no basis, legal or otherwise, for the lower Court to have accorded probative value to the evidence of the first prosecution witness on the identification of the Appellant as one of the perpetuators of the crime.
It is correct that the Courts have stated that it is not in all cases that identification parade is needed, but where the victim or eye witness did not know the accused before the incident and was confronted by the offender for a very short time

31

and on which time and circumstances he might not have had full opportunity of observing the features of the accused, the law is that an identification parade is essential ? Adisa Vs The State (1991) 1 NWLR pt 168) 490, Wakala Vs The State (1991) 8 NWLR (Pt.217) 552, Alabi Vs The State (1993) 7 NWLR (Pt 307) 511. This case is a perfect example of when the Police should have conducted an identification parade to determine if the Appellant was the lady that the first prosecution witness said he saw in the midst of the perpetuators of the crime. There was thus no credible evidence putting the Appellant amongst the perpetuators of the offence of killing the deceased.
?
Going further and even assuming that the Appellant was Present at the scene of the crime as testified by the first and second prosecution witnesses, neither of the witnesses stated what exactly the Appellant did in facilitating the commission of the crime in question. The evidence of the third prosecution witness that the Appellant still communicated with her ex-boyfriend after her marriage to the deceased did not add value to the case of the Respondent on this point. It is trite law that

32

the mere presence of an accused person at the scene of a crime does not as a matter of law render the person so present guilty. There must be clear evidence that either prior to or at the time of the commission of the offence, the person present did something to facilitate the commission of the offence – Mohammed Vs The State (1991) 5 NWLR (pt.192) 438, Ogunlana Vs The State (1995) SCNJ 189, Orji Vs The State (2003) 10 NWLR (Pt 1094) 31. In Emiowe Vs State (2000) 1 NWLR (Pt 641) 409, it was held that even where an accused person is seen running away from the scene of crime, it is not conclusive proof that he is guilty of the offence. This is particularly moreso in this case as the presence of the Appellant at the scene of the crime was not an event out of the ordinary in the circumstances of the case. The deceased was her husband and the scene of the crime was in front of their house. There was a need for the Respondent to do more than fix the Appellant at the scene of the crime.
?
The lower Court also placed reliance on the fact that the Appellant told lies in her oral evidence and which was at variance with her extra judicial statement made to the Police

33

in finding her guilty. With respect, the lower Court obviously forgot that in a criminal trial the onus is not on the accused to prove his innocence, but on the prosecution to prove his guilt beyond reasonable doubt. It has never been the law that the mere fact that a person told lies is by itself sufficient to convict him of an offence unconnected with mendacity nor does the fact that an accused person has told lies relieve the prosecution of its duty of proving the guilt of the accused of the offence charged beyond all reasonable doubt – Boy Muka Vs The State (1976) 9-10 SC 105, Anekwe Vs The State (1976) 9-10 SC 255, Akinkunmi Vs The State (1987) 3 SCNJ 30, Ogidi Vs State (2005) 5 NWLR (pt 918) 286. The rationale for this position of the law is that, although a man may lie because he is guilty, he may just as well lie because he is stupid or afraid or both and whether he it guilty or not – Haruna Vs The Police (1967) NMLR 145, Ojo Vs Federal Republic of Nigeria (2008) 11 NWLR (Pt 1099).
?
The best that the evidence led by the Respondent proved against the Appellant was that there were grounds for suspecting that the Appellant had something to do with the

34

death of the deceased. The evidence was not cogent and compelling in proving the guilt of the Appellant beyond reasonable doubt. It is settled that suspicion, no matter how grave it may be, cannot amount to legal evidence to prove the guilt of an accused person – Abieke Vs State (1975) 9-11 SC 97, Orji Vs State (2008) 10 NWLR (Pt 1094) 31, Ogundele Vs Agiri (2009) 18 NWLR (Pt 1173) 219, King Vs State (2016) LPELR-SC.200/2013.

It is trite that if an appellant asserts that the prosecution failed to prove his guilt beyond reasonable doubt before conviction, it is for him to establish that it is so and it is the duty of an Appeal Court to examine the assertion against the whole background of the case and in particular, against the evidence leading to the guilt of the appellant. If at the end of the whole of the case, there is reasonable doubt created by the evidence given either by the prosecution or the appellant, as to whether the offence was committed by him, the prosecution has not made out the case and the appellant is entitled to an acquittal -Oteki Vs State (1986) All NLR 371, Ekpe Vs State (1994) 12 SCNJ 731, and Udosen Vs The State (2007) All

35

FWLR (Pt 356) 669.
Speaking on the quality of evidence required to sustain a charge under common law, Lord Cowper in Proceedings against Bishop Attenbury (123); 8 New Panl. Hist 338 stated:
“The wisdom and goodness of our law appear in nothing more remarkable than in the perspicuity, certainty, and clearness of evidence it requires to fix a crime upon a man whereby his life, his liberty or his property may be concerned: herein we glory and pride ourselves and are justly the envy of all our neighbor nations. Our law, in such cases, requires evidence so clear and convincing that every bystander the instant he hears it must be fully satisfied of the truth of it; it admits of no surmises, innuendos, forced consequences or harsh construction, nor anything else to be offered in evidence but what is real and substantial according to the rules of natural justice and equity.”
?
The conviction of a man for an offence must be seen as the product of prudent and logical thinking based upon admissible evidence, in which the fact leading to his conviction are clearly found and the legal deduction therefrom carefully and rightly made and it cannot be allowed to

36

stand if it is founded upon a misapprehension, misdirection and/or error of law.
?
The lower Court misapprehended the evidence led by the Respondent and it committed a blunder in convicting and sentencing the Appellant on the strength of such evidence. This Court finds merit in this appeal and it succeeds. The judgment of the Kaduna State High Court in Charge No KDH/Z/2C/2013 delivered by Honorable Justice M. L. Bello on the 5th of June, 2014 and the sentence passed therein on the Appellant are hereby set aside. The charge against the Appellant is dismissed and the Appellant is discharged and acquitted. These shall be the orders of this Court.

---

Other Citations: (2016)LCN/8760(CA)