Ojo Esseyin V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
PAUL ADAMU GALINJE, J.S.C.
The Appellant herein was arraigned before the High Court of Kogi State, holden at Lokoja, on a two counts charge of rape and culpable homicide punishable with death under Sections 283 and 221 (a) of the Penal Code respectively.
In order to prove its case, the prosecution called four witnesses and tendered in evidence the following items:-
- Pictures taken at the scene of crime
- Negatives of the Pictures
- Coroner Form including medical report
- Cautionary statement of the Appellant
These items were admitted in evidence and marked Exhibits A,B,C and D respectively.
At the end of the trial and in a reserved and considered judgment delivered on the 19th December, 2013; the appellant was acquitted and discharged from the first count of rape, but was found guilty in respect of the second count of culpable homicide punishable with death under Section 221(a) of the Penal Code and he was accordingly convicted and sentenced to death by hanging. Appellant’s appeal against the conviction and sentence to the Court of Appeal
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was dismissed on the 24th of April, 2015. The instant appeal is against the decision of the Court of Appeal, Abuja Division.
The Appellant’s notice of appeal at pages 99 to 108 of the record of this appeal dated 21st May, 2015 and filed on the 22nd May, 2015; contains five grounds of appeal.
Parties filed and exchanged briefs of argument. Mr. J. O Adele, learned counsel for the Appellant formulated five issues for determination of this appeal as follows:-
a. Whether the learned Justices of the Court of Appeal Abuja were legally right when they upheld the findings of the trial High Court of justice, Kabba, Kogi State that the ingredients of the charge/offence of culpable homicide punishable with death was proved by the respondent against the Appellant even when the Respondent did not establish the ingredients of the charge or offence of culpable homicide punishable with death under Section 221 (1) (a) of the Penal Code as required by law.
b. Whether the learned Justices of the Court of Appeal Abuja were legally right when they upheld the finding of the trial High Court of Justice, Kabba, Kogi State which found the Appellant guilty of the charge of
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Culpable Homicide punishable with death because the Appellant did not give evidence for his defence but rather rested his case on the evidence of the Prosecution/Respondent.
c. Whether the learned Justices of the Court of Appeal Abuja were legally right when they upheld the findings of the trial High Court of Justice, Kabba, Kogi State that the prosecution/Respondent had by circumstantial evidence proved the case of Culpable Homicide punishable with death against the Appellant.
d. Whether the learned Justices of the Court of Appeal Abuja were right when they upheld the findings of the trial High Court of Justice, Kabba, Kogi State which relied upon Exhibit D (the alleged confessional statement) of the Appellant to convict and sentence the Appellant for the charge of culpable homicide punishable with death after a discharge acquittal of the Appellant for the charge of rape even when the content of the said Exhibit D is a mere narration of the incident which culminated to the charge of Rape and Culpable homicide punishable with death.
e. Whether the learned Justices of the Court of Appeal, Abuja were legally right when they relied on
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the doctrine of “Last seen” to hold that the deceased was last seen with the Appellant for which the Appellant was actually the one responsible for the death of the deceased.
Mr. A. O. Suleiman, Deputy Director in the Ministry of Justice, Kogi State, settled the Respondent’s brief of argument. Learned counsel formulated three issues for determination of this appeal, and they read as follows:-
- Whether the Appellant has proved his case beyond reasonable doubt to warrant this honourable Court to discharge and acquit the Appellant from the conviction and sentence of the Appellant to death by hanging meted to the Appellant by the High Court of Justice, Kabba, Kogi State which said conviction and sentence to death by hanging was upheld by the Court of Appeal, Abuja.
- Whether the Court of Appeal, Abuja was legally right to have upheld the respondent establishment of circumstantial evidence by upholding the final verdict/judgment of the trial Court, Kabba, Kogi State.
- Whether the Court of Appeal, Abuja was legally right when it upheld the final decision of the trial High Court, Kabba, Kogi State that the Respondent had established all the ingredients of the charge
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of culpable homicide punishable with death as required by Law.
I have read through the record of this appeal and the briefs of Argument filed by both parties and I am of the firm view that the only issue calling for determination of this appeal is whether the lower Court was right in affirming the decision of the trial Court on the ground that the prosecution did prove its case beyond reasonable doubt.
Before I venture into the argument of learned counsel on both sides, it is pertinent to set out in brief the facts of this case as disclosed from the evidence before the trial Court. The Appellant, a casual worker was employed by Joseph Akadi, a resident of Kajola Area of Kabba in Kogi State to fill the foundation of his uncompleted building. Joseph Akadi testified as PW4 at the trial Court. On the 21st of November, 2011, at about 9.30am, while working at the site, the appellant saw three Fulani girls who were carrying fresh cow milk for sale, and he called one of them whose name is Sefiyat under the pre that he wanted to buy some cow milk she was carrying. She went to meet the Appellant while the remaining two girls went ahead to
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the venue where they used to sell fresh cow milk to buyers. They waited for Sefiyat for several hours, but she did not join them. They now reported to the leader of the Fulani at Zango that Sefiyat was missing, The Fulani leader Alhaji Mohammed Musa went along with the two girls Hadiza Lawal and Awawu lbrahim and reported the disappearance of Sefiyat to the police at about 2.00pm. A team of policemen accompanied them to the place where they left Sefiyat. A search conducted in the area led them to a grave. After the necessary formalities the body of Sefiyat was exhumed from the shallow grave. According to the prosecution, an investigation that was conducted subsequently showed that the Appellant raped Sefiyat, a girl of 17 years after which he killed her.
As I have stated elsewhere in this judgment, the High Court absolved the Appellant from the charge of rape.
In arguing the appeal, learned counsel for the Appellant submitted that the lower Court was wrong to have held that the ingredients of the offence of culpable homicide punishable with death had been proved even when the Appellant was discharged and acquitted from the charge of
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rape, which was said to have caused the death of the deceased, on whether the lower Court was right when it held that the prosecution did prove its case by circumstantial evidence, learned counsel for the appellant contended that the lower Court was wrong in that direction because the circumstantial evidence upon which the trial Court relied, related to the charge of rape under Section 283 of the Penal Code, an offence which was not proved by the prosecution. It is the learned counsels submission that the circumstantial evidence in this case did not in law point irresistibly that the Appellant intended to cause death of the deceased by the alleged act of having carnal knowledge of the deceased.
On whether Exhibit D, the extra-judicial statement of the Appellant is a confessional statement, learned counsel submitted that it is not a confessional statement, but a clear explanation of what happened between him and the deceased, where the appellant admitted that the deceased first attacked him and how he had to defend himself.
On the doctrine of last Seen’, learned counsel for the appellant submitted that the lower Court was wrong when it
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held that because the deceased was last seen with the Appellant, the appellant was responsible for her death.
Finally, learned counsel submitted that the evidence of last Seen was not corroborated, as such the lower Court was wrong in upholding the conviction of the Appellant. In aid, learned counsel cited Madu vs The State (2012) 15 NWLR (Pt. 1324) 405 at 419; The State vs Kura (1975) 2 SC 8; Eme Orji vs The State (2008) MJSC 169 and Uwaekweghinya vs The State (2005) ALL FWLR (Pt.259) 1930 to buttress his submission.
I very much deprecate the attitude of learned state counsel. A. O Suleiman, who as prosecutor in this case at the trial Court, cited displayed great incompetence in handling his brief. The confessional statement of the Appellant exhibited at pages 9 – 9A of the record of this appeal was not tendered in evidence before the trial Court. In this statement, recorded by Inspector S lbrahim, the Appellant admitted both the offences of rape and culpable homicide. The failure to bring this evidence before the Court by the prosecuting counsel was either a deliberate act of hiding evidence or gross incompetence on the part of the state counsel who
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should have not been given such responsibility in the first place. Be that as it may Exhibit D, the statement of the Appellant to the police in Kabba is not a confessional statement, as the appellant totally denied any connection with the deceased. The Appellant’s conviction at the trial Court was not based on any confessional statement, or on any evidence connected with the rape of the deceased.
Learned counsel for the Appellant does not seem to know the contents of Exhibit D and that is why he argued in his brief of argument that the appellant merely narrated what happened between him and the deceased.
The trial Court in its judgment relied on circumstantial evidence in arriving at the decision that the Appellant was guilty of culpable homicide This is what the Court said at pages 37 of the record thus:-
Even though from the incidence (sic, evidence) adduced by the prosecution, there is no direct prove (sic, proof) that the accused person caused the death of the deceased, circumstantial evidence has pinned the accused to the commission of the crime of culpable homicide punishable with death against the deceased.”
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The lower Court after setting out the definition of circumstantial evidence as enunciated in Mohammed vs The State (2007) 37 WRN 1 at 25, agreed with the trial Court in the following words at page 92 of the Printed record thus:-
…….and the circumstantial evidence presented was direct, to the effect that Appellant killed the deceased, who was last seen with him along and (sic, was) found dead in his place of work in a shallow grave. The Appellants discharge and acquittal for the offence of rape took nothing away from the charge or culpable homicide punishable with death, for which the appellant was eventually rightfully found guilty, and convicted.
Clearly the conviction of the appellant had nothing to do with the charge for rape wherewith the appellant was acquitted and discharged. The only issue left for this Court to determine is whether the Court was right when it affirmed the decision of the trial Court that the prosecution did prove by circumstantial evidence that the Appellant intentionally killed the deceased. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and
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Section 135(2) of the Evidence Act 2011 have squarely placed the burden of proof in criminal cases on the prosecution, who must prove beyond reasonable doubt the guilt of the accused person and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused Person.
This burden does not shift. See Alabi vs The State (1993) 7 NWLR (Pt. 307) 511 at 531 paras A-C; Solola vs The State (2005) 5 SC (Pt. 1) 135 (2005) 11 NWLR (Pt. 939) 460; Akeem vs The State (2017) 18 NWLR (Pt. 1597) 311 at 350 paras D-E. In discharging this burden, the prosecution must establish the ingredients of the offence with which the accused is charged. This it can do by direct evidence or circumstantial evidence or confessional statement. The Appellant was charged, tried and convicted for culpable homicide punishable with death. Both the Appellant and the Respondent agreed that Sefiyat Umoru died on 21st November. 2011. The death of Sefiyat Umoru was confirmed by Exhibits A, B and C. PW3 identified the Appellant as the person who called the deceased to buy fresh cow milk from her. PW4 who employed the Appellant to fill the foundation of his house, gave evidence that he left the Appellant
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working at his site at about 9.00a.m on the 21st November, 2011 and few minutes later, the deceased went to sell fresh cow milk to the appellant when she disappeared. At 4.00p.m the same day, the corpse of the deceased was exhumed from the same premises where the Appellant was working. Clearly from the evidence available, the trial Court and the lower Court were right when they held that the prosecution has circumstantially proved that the death of the deceased was caused by the Appellant.
Circumstantial evidence is a testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved. The fact that the Appellant called the deceased and the corpse of the deceased was found at the premises of his work, shows irresistibly that he and no other person caused the death of the deceased.
The Appellant did not call evidence to rebut the accusation by the prosecution. He therefore took the risk which ultimately has not assisted him. The trial Court found the Appellant guilty of the offence of culpable homicide punishable with death.
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This decision was affirmed by the lower Court. This is clearly a concurrent finding of facts by the two lower Courts which this Court can only upset if there is an exceptional or special circumstance to do so. Such exceptional circumstance is not available in this case.
The sole issue identified by me is resolved against the appellant. This appeal shall be and it is hereby dismissed for lacking in merit. The decision of the trial Court which was affirmed by the lower Court, is further affirmed by me.
Appeal dismissed.
SC.371/2017
