Mufutau Bakare V. The State (1987)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

This appeal was set down for hearing on the 11th day of December, 1986. After going through the record of proceedings, the Briefs filed out both side (which were too brief to be of any use) and hearing learned counsel for the Appellant, I did not consider it necessary to call upon learned counsel for the Respondent.

I there and then dismissed the appeal, affirmed the judgment of the Court below, and confirmed the conviction and sentence of the Court of first instance. I indicated that I will give reasons for my judgment today, the 6th day of March, 1987. Hereunder are those reasons.

The Appellant, Mufutau Bakare, was charged with the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code. He was arraigned before the Kwara State High Court holden at Ilorin and presided over by Gbadeyan, J. The learned trial Judge heard the evidence of 9 prosecution witnesses. The Appellant made an extra judicial Statement to the Police in Yoruba tendered as Ex. 3. The English translation was tendered as Ex.4. In addition to Ex.3 and Ex.4, the Appellant gave oral evidence on oath in his own defence. After reviewing the evidence on both sides Gbadeyan, J. found the Appellant guilty and sentenced him to death.

The Appellant aggrieved by the above conviction and sentence appealed to the Court of Appeal Kaduna Division Coram Wali, Maidama and Babalakin, J.J.C.A. That Court by a unanimous verdict dismissed his appeal and confirmed the conviction and sentence of the trial Court. Still aggrieved the Appellant has now appealed to the Supreme Court of Nigeria on 9 grounds of various errors and misdirection in fact as well as in law.

The first ground of appeal complained that:

“1. The decision of the Court of Appeal is unreasonable having regard to the evidence before the trial Court”.

This ground deals with, the facts of the case, the evidence led on both sides. the evaluation of that evidence, the ascription of probative value to such evidence, the credibility of witnesses who testified, the consideration of all credible evidence and the logical conclusion both of fact and of law to be drawn from the totality of the evidence led. All these are matters squarely within the exclusive competence of the trial Judge who saw, heard and believed. Understandably, therefore, an appellate Court is naturally very reluctant to reverse on ground 1 above the findings of trial Judge who had the peculiar advantage of seeing the witnesses, of watching their demeanour and of hearing them give evidence.

Therefore, again, when the questions involved are purely those of fact an appellate court will not interefer unless the decision of the trial Judge is shown to be perverse and not the result of a proper exercise of judicial discretion (to believe or disbelieve witnesses) or that there is no evidence at all to support a particular crucial finding or that the trial court made wrong deductions or drew wrong inferences from admitted or established facts.

There is such a myraid of authorities to support the above propositions that it is unnecessary to repeat them here. What is necessary is to look critically at the evidence before the trial Court to see whether the learned trial Judge erred in his handling of the facts and whether it is true that his decision “is unreasonahle having regard to the evidence before him.”

The star witness for the prosecution was Jonathan David called as P.W.2.He was an eye-witness. He was present and saw all that happened. He heard the Appellant threaten to “deal ruthlessly” with the deceased stressing that his action will lead the deceased “to the hospital”.

He made good his threat. His action led the deceased to the hospital alright. The deceased was taken to the hospital in an unconscious state on 18/11/81 and he died on 19/11/81. What did the Appellant do to the deceased in the execution of his threat Without any provocation whatsoever and following a mere argument over the tearing of the deceased person’s motor-cycle seat by the Appellant’s younger brother, the Appellant rushed into his room, fetched his dagger, made for the deceased and plunged the dagger into the head of the deceased.

The dagger had to be pulled out by the P.W.2. The deceased collapsed and slumped down soaked in his own blood. The Appellant tried to run away but the P.W.2 gave chase and caught him. The P.W.2 and others took the deceased, and the Appellant to the hospital. At the hospital the doctor insisted, and rightly too, that the Appellant be handed over to the Police. This the P.W.2 did. There the Appellant was arrested. The murder weapon (Appellant’s dagger) was recovered under a grinding stone (belonging to the Appellant) at the entrance of the Appellant’s own room. The dagger was tendered as Ex.1.

The story of the P.W.2 was corroborated by the evidence of the other witnesses. Shaibu Aremu called as P.W.3 was in his bathroom when he heard the P.W.2 shouting “Help, Please help me.” He ran out and saw the P.W.2 holding the Appellant. He also saw blood gushing out from the head of the deceased. He helped the P.W.2 to convey the deceased to the hospital and he was present when the Police recovered the Appellant’s dagger EX.1 from underneath the Appellant’s grinding stone. The evidence of Dr. James Omoniyi Fagbayi called as P.W.6 showed the ferocity with which the Appellant stabbed the deceased who died of truama, shock and bleeding. The medical evidence was that the cut on the head was 1/2 to 3/4 inch deep and about 1 1/2 to 2 inches long. The medical opinion was that this cut could easily lead to death and that Ex.1 could produce the injuries on the deceased. This was the summary of the prosecution’s case against the Appellant. It is this case that the trial Court will have to compare and contrast with the defence of the Appellant.

What then was the defence of the Appellant The Appellant made three extra judicial Statements to the Police namely Ex.3A, Ex.4 and EX.5A. In Ex.3A the Appellant said inter alia:-

“As I was going out to call my junior brother Latifu, the said Rasaki followed me. When he came out of his room to our passage he put down a bottle of beer on his hand and rolled up his trouser. Then one Momo Saka held him not to come and meet me. From the bottle of beer he put on the ground fell down and pour on the ground. I don’t know the reason why they were holding the said Rasaki not to come and meet me. From there he stepped where the beer was and he fell down while he hited his head on his machine. Then he sustained injury from there”.

From EX.3A made on 18/11/81, the deceased sustained his injury when he slipped on a wet floor. His bottle of beer spilled over on the floor. Exhibit 4 made on 19/11/81 repeated the story of the deceased stepping on the wet floor and falling on his motor cycle. In Exhibit 5A made on 23/11/81, the Appellant introduced a new element:-

“It is at this juncture that Rasaki Adedokun the deceased came out of his room and wanted to fight me. One woman in our house, Iya Saka then held the deceased not to fight with me. Rasaki Adedokun the deceased then fell on his motor cycle …. and his head where he sustained injury previously in an accident started bleeding”.

The prosecution called the woman, Iya Saka, as P.W.5. She was emphatic that she was not at home when the deceased sustained his fatal injuries. She went to the mosque to pray. When she returned she saw a crowd in their house. It was then that she was told what had happened.

From the evidence of the Appellant under cross-examination at p.31 of the record he conceded that Rasaki Adedokun, the deceased, fell down. The Appellant saw him fall. The Appellant continued – “He bled profusely. He was unconscious.” This, again, is common ground. The Appellant further admitted that he owned the dagger, Ex. 1. Now the question is what caused Rasaki’s bleeding and ultimate death – the dagger EX.1 or the fall The Appellant’s explanation at p.28 lines 22 to 29 was:-

“When he (deceased) was struggling to release himself from the hold of the P. W.2, Rasaki slipped and fell down and hit his head against the passenger’s foot rest (Pedal) of his machine …. The foot rest has no rubber pad. The exact spot on his head knocked against that pedal was the spot where he had a scar. He was injured and we tried to rescue him …. We took Rasaki to the hospital. At the hospital the doctor said we should call in the police. I waited with another person at the hospital while a report was made at the Police Station by P.W.2 and P.W.3. The Police came … I was taken to the Police Station. I was questioned and locked up that night”.

The learned trial Judge had two conflicting versions of the causa causans of the death of Rasaki Adedokun – the prosecution’s case was that Rasaki was stabbed to death by the Appellant while the Defence was that Rasaki fell to his death by knocking his head against the pedal of his motor cycle.

The learned trial Judge reviewed the evidence in support of each proposition, believed all the prosecution witnesses and disbelieved the story of the Appellant which he described as “an after-thought designed to hide the truth”. The learned trial Judge went further. He did not believe that the “type of injury sustained by the deceased” and described by the medical witness P.W.6, Dr. James Omoniyl Fagbayi, could be caused by a fall on a motor cycle pedal. This point is important as it emphasises the fact that a finding of the trial Court must be in accord with the probabilities which on the evidence it is natural to expect.

It is quite improbable that a fall on a motorcycle pedal will produce “a cut 3/4 inch deep and 2 inches long” (the italics mine). From what height would someone fall to produce such injury From a mountain top perhaps but definitely not from someone standing who merely slipped and fell down. I am satisfied that on the facts, the judgment of the learned trial Judge cannot be faulted. He carefully considered the evidence on both sides, pointed out the various flaws, contradictions and improbabilities in the evidence of the Defence. He then exercised his prerogative as a trial Judge to believe the prosecution witnesses and disbelieve the Appellant. Surely such a carefully written judgment cannot be upset on the facts. The Court of Appeal was right in not disturbing the trial Court’s finding of fact. Ground 1 of the Grounds of Appeal therefore fails.

Ground 2 complained that:-

“2. The Court of Appeal erred and misdirected itself in law and in fact in dismissing the Appellant’s appeal when it cannot be said that the prosecution had proved its case beyond every reasonable doubt.”

In his Brief, which was too brief to be of much use, learned counsel for the Appellant submitted that “there is only one issue for determination in this appeal; viz “whether or not the prosecution had proved its case beyond every reasonable doubt”. From the particulars of error/misdirection (supporting this ground of appeal) which were further elaborated in the Brief, it is obvious that there is here a thorough misconception of the requirement that the prosecution should prove its case beyond reasonable doubt.

Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All. E.R. 373:-

“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt”.

In the case now on appeal, it is possible that a man slipping and falling and hitting his head on motor cycle pedal may sustain some injury to the head but it is highly improbable that he will have a cut as deep and as wide as that described by the medical evidence of the P.W.6. Also it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable. Not all doubts are reasonable. Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt – a doubt not borne out by the facts and surrounding circumstances of the case.

Another sense in which the expression “Proof beyond Reasonable Doubt” is used refers to the shifting of the onus of proof as stipulated by Section 137(1) Evidence Act Cap 62 of 1958:-

“137(1) If the commission of a crime by a party to any proceedings directly in issue… it must be proved beyond reasonable doubt”.

But if the prosecution proves the commission of a crime beyond reasonable doubt then the burden of proving reasonable doubt is shifted onto the accused – see Section 137(3) of Cap 62 of 1958.What does this subsection mean in relation to the case now on appeal It means this. At the close of the prosecution case the Court had heard 9 witnesses testified. If the prosecution witnesses were believed and there was nothing urged in defence, no fair ‘minded jury can return any verdict except that of guilty. In other words the prosecution established this case beyond reasonable doubt. The onus then shifted to the defence to adduce evidence capable of creating some reasonable doubt in the mind of the trial Judge. The primary onus of establishing the guilt of the Appellant was still on the prosecution and this does and did not shift. What does shift is the secondary onus or the onus of adducing some evidence which may render the prosecution case improbable and therefore unlikely to be true and thereby create a reasonable doubt:- R. v. Harry Lazarus Lobell (1957) 41 C.R. App. R. 100 at p.104 per Goddard L.C.J.

The learned trial Judge in this case compared the accounts of the incident as told by the prosecution and the defence and was not in any doubt that the Appellant was not a truthful witness. He (the Judge) described his defence as “an after thought designed to hide the truth”. Evidence that is not accepted cannot possibly create a doubt in the mind of a fair minded jury. If the defence account of the incident is disbelieved then that is the end of the story and there will then be no evidence on which to consider the existence of a reasonable doubt. The Court of Appeal was right in holding that the case was proved beyond reasonable doubt. Ground 2 of the grounds of appeal therefore fails.

Ground 3 complained –

“3. The learned Justices of the Court of Appeal erred and misdirected themselves in fact in not holding that in view of the alleged sequence of events it was most doubtful that EX. 1(the knife) was used on deceased by the appellant when P.W.3 admitted in evidence that he did not see EX. 1”.

There is some misconception here about the relative roles of a trial Court and an appellate Court. The role of a trial Court is to try the issues, evaluate the evidence, make appropriate findings and come to a conclusion one way or the other – a conclusion dictated by the natural drift of the evidence and the probabilities of the case. The role of the Court of Appeal, the Court below, is to see whether the case was properly tried and whether the conclusion arrived at can be supported by the available evidence and the law on the subject. In this case there was the evidence of the P.W.2:-

1. That Appellant plunged his dagger into the head of the deceased.
2. That he (P.W.2) pulled out the dagger
3. That he threw the dagger on the ground
4. That the Appellant took to his heels
5. That he (P.W.2) gave chase and caught the Appellant and dragged him back to the scene of crime.
6. That he (P.W.2) saw his brother, the deceased, lying in a pool of his own blood.
7. That he left the Appellant to take care of the deceased. It was then he shouted for help.
8. That the only man at home was P.W.3 who was in the bathroom having his bath.
9. That when he was explaining to the P.W.3 what happened the Appellant ran away a second time and the dagger vanished.

The question now is:- How was P.W.3 expected to see the dagger which “vanished” on the night of 18/11/81 only to be found hidden under the grinding stone of the Appellant by the Police on 19/11/81 after a search To my mind the sequences of events go to show that the P.W.3 was a truthful witness and his evidence corroborated and gave additional credence to the story of the P.W.2 who himself did not also see EX. 1 when the P.W.3 appeared on the scene from the bathroom and when the Appellant disappeared only to be chased and ‘capture’ a second time by the P. W.2.

The case of the Appellant was that he did not stab the deceased on the head with this dagger, Ex.1. The case of the prosecution per the P.W.2 was that he did. The trial Court believed the P.W.2 and disbelieved the Appellant. The circumstantial evidence quietly but effectively (given the surrounding circumstances) showed that the learned trial Judge was right in believing the P.W.2. The Appellant admitted owning 4 knives. Three were found inside his room (see p.29 lines 16-17) but EX.1 was found “outside my room” under his grinding stone. Who placed EX. 1 there When was EX. 1 placed there These are questions which the defence alone can answer. This the Appellant failed to do. The trial Court was in such circumstances at liberty to draw any reasonable conclusion from the evidence at its disposal. And one reasonable conclusion was that after using EX.1 on the deceased the Appellant hid it under his grinding stone and ran away. There was also the fact admitted by the Appellant in cross-examination (page 31 Lines 14/15) that Ex.1 the dagger was slightly bent – why was that The Appellant’s answer was – “I do not know why the head of the dagger is slightly bent”. One can hazard one reasonable reason. Using a dagger on a hard object like the head of a human being with the force which produced the injuries deposed to by the P.W.6 may account for the bending of the dagger, Ex.1. Now when the Appellant who had the opportunity to explain why his dagger Ex.1 was bent, says “I do not know why”. It is left to the Court to draw its own conclusion from the totality of the evidence led. The Court of Appeal was right in rejecting any suggestion that the evidence of the P.W.3 should have created a doubt in the mind of the trial Judge.

The next ground of appeal I will like to consider is Ground 9 which complained:-

“Ground 9

The learned Justices of the Court of Appeal erred and misdirected themselves in law in their view “that there is ample evidence on which the learned trial Judge could reach the conclusion that the Appellant had constructive knowledge that death would be the probable consequence of his act”.

Particulars of Error/Misdirection in Law

Section 19 of the Penal Code is inapplicable in that the appellant clearly expressed his intention which negatived that presumption”.

The law is that intent can be proved positively by proof of the declaration of the accused as to his intent or inferentially or by proof by evidence of similar facts. In the case now on appeal, there is no evidence from the Appellant as to this intent. There could not have been for he denied killing the deceased. But there is evidence from the P.W.2 that:-

“An argument ensured … The accused then promised to deal ruthlessly with my brother and that his (Accused’s) action could lead him (Deceased) to the hospital …. The accused then went into his room …. came out wearing a flowing gown (agbada) with his right hand inside the Agbada … The accused in a flash brought out his right hand from the agbada and struck my brother on the head … I saw clearly a knife submerged in my brother’s head and I pulled it out. This is the knife (Ex.1 is identified)”.

In keeping with his promise the Appellant did deal ruthlessly with the deceased and his action sent the deceased to the hospital to where he was carried in an unconscious state and where he died the following day. From the above evidence of the P.W.2 which was believed, the inference is that the appellant intended to kill the deceased or at least cause him grievous bodily harm. There was in this case direct evidence of the intention of the Appellant. The surrounding circumstances again confirmed the declared intention of the Appellant as deposed to by the P.W.2:-

(i) the stabbing on the head with EX.1 with such a force to result in EX.1 bending;

(ii) the instrument used is a dagger;

(iii) the nature and gravity of the wounds inflicted –

All these testify to an intention to kill or at least cause grievous bodily harm. Death resulted almost immediately. The Court of Appeal was therefore right in holding that there was ample evidence to justify the learned trial Judge holding that the Appellant had knowledge that death would be the probable consequence of his act. This ground of appeal also fails.

In the final result and since all the grounds of appeal considered have all failed, this appeal should be dismissed as it was in fact dismissed on 11th December, 1986.

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SC.242/1985