Silas Sule V. The State (2007)
LawGlobal-Hub Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
The appellant Silas Sule and five others were arraigned before the High Court of Kogi State sitting at Ankpa while the charge preferred against them read as follows:-
“That you Silas Sule, Christopher Sule, Jonah Sule, Jibrin Umoru, Timothy Sule and Titi Sule on or about the 24th day of June 1999 at Ika-Efofe village via Alajo Ankpa in Ankpa Local Government of Kogi State agreed to do illegal Act to wit to commit the offence of culpable homicide punishable with death and that same act was done in pursuant of the agreement and you thereby committed an offence punishable under section 97 of the penal code.
That you Silas Sule, Christopher Sule, Jonah Sule, Jibrin Umoru, Timothy Sule and Titi Sule on or about the 24th day of June 1999 at Ika-Efofe village via Alajo Ankpa in Ankpa Local Government of Kogi State commit culpable homicide punishable with death in that you caused the death of Jubrln Umoru Okpanachi by doing an act to wit raiding the compound of the said Jubrin Umoru Okpanachi while armed with sticks, knifes and a gun and inflicting a deep stab in his right thigh with intention of causing his death.
At the trial before the High Court, five witnesses gave evidence, while all the six accused persons gave evidence in their defence. Learned counsel for both sides submitted their written addresses. In his considered judgment the learned trial judge found that the allegation of conspiracy has not been made against the 2nd, 3rd, 4th, 5th and 6th accused persons and thereby discharged and acquitted them of the offence, while he concluded that the prosecution has proved the guilt of the 1st accused beyond reasonable doubt: having regard to the overwhelming evidence of the prosecution witnesses and convicted him for the offence of culpable homicide punishable with death under section 221 of the Penal Code.
Being dissatisfied with his conviction the appellant appealed to this court. He complied with the processes of appeal as stipulated in the Court of Appeal Rules 2002. At the hearing of the appeal the applicant relied on the appellants brief filed on 26/1/06 and the appellants Reply brief deemed filed on the 14/11/06. In the appellants brief six issues were settled for determination as follows:-
(i) Whether the trial court considered the defence of self defence raised by the appellant before arriving at the conclusion to convict him of the offence as charged on the 2nd head charge.
(ii) Whether in view of the fact that application for leave to prefer a charge against the appellant was neither moved nor granted, the trial embarked upon by the trial court is not void.
(iii) Whether the trial court was right in lumping the pleas of the appellant to the two count charges and taking them as one plea.
(iv) Whether the deceased was sufficiently identified to establish the needed nexus between the victim and the act of the appellant
(v) Did the prosecution indeed prove the guilt of the appellant beyond all reasonable doubt as required by law?
(vi) Whether having found that the evidence of the prosecution did not sufficiently establish their case of conspiracy there was any other evidence left that could sustain the charge of culpable homicide punishable with death upon which the appellant could be rightly convicted
The Respondent adopted and relied upon the Respondents brief deemed filed on 14/11/06.
The Respondent distilled four issues for determination as follows:-
(1) Did the trial court fail to consider the defence raised by the appellant? If so has such a failure occasioned a miscarriage of justice in this case?
(2) Whether the fact that the trial court lumped the plea of the appellant to the two count charge as if there was only one charge against him and whether the failure if any on the part of the trial court to grant leave to the prosecution to prefer the charges has occasioned a miscarriage of justice and therefore voided the trial in the lower court.
(3) Whether the statement which the appellant made to the police Exh B is confessional or not
(4) Whether the prosecution proved the case against the appellant beyond reasonable doubt.
ISSUE ONE
Whether the trial court considered the defence of self defence raised the appellants before arriving at the conclusion to convict him of the 2nd head of charge.
The appellant submitted that he gave a detailed account of the whole incident right from his statement to the police Exh ‘B’. The appellant gave a strong defence of self defence which the trial court neither appreciated nor, evaluated. The defence raised complied with the ingredients of self defence under section 60(a) and (b) of the penal code. The failure of the court to consider the defence has occasioned a substantial miscarriage of justice. The court is urged to allow this appeal on this ground. The cases cited by the appellant are:-
Maeze v. State 2004 All FWLR pt 202 pg 1920
Ukpe v. The State 2002 FWLR pt 103 pg’416 at pg 423
Kwaele v. State 2003 FWLR pg 159 pg 304 at 510
The respondent replied that it is the duty of the trial court to consider the defence raised by the accused however worthless, slight or narrow.
The respondent concluded that failure of the trial judge to consider the defence has not occasioned a miscarriage of justice, while the evidence of the prosecution witnesses at pages 22-26 of the records sufficiently prove the case against the appellant. The Respondent also cited the cases
Maeze v. State 2004 All FWLR pt 202 pg 1920 at 1923
Kwaele v. State 2003 FWLR pg 159 pg 304 at 510
ISSUE TWO
Whether in view of the fact that the application for leave to prefer a charge against the appellant was neither moved nor granted, the trial embarked upon by the trial court is not void.
The learned counsel for the appellant referred to the provisions of section 167(1) of the Criminal Procedure Code which provides for a preliminary Inquiry by a magistrate as a necessary precondition to a trial at the High Court, and that section 185(b) and (c) provides for the summary trial of a case, section 185(b) provides that no person shall be tried by the High court unless:-
185(b) “A charge is preferred against him without the holding of preliminary inquiry by leave of a judge of the High Court.”
Mr. Ayo Fashoba filed an application for leave to prefer a charge on the 30th day of December 1999 there is nothing on record to show that the application was moved and granted by the trial court. The provision of section 185(b) is mandatory. The appellant submitted that a fundamental condition precedent to assumption of jurisdiction to prefer a charge has been violated, and the effect therefore is that the entire proceedings no matter how well conducted is void.
The appellant should be discharged and acquitted. The Respondent replied that the application for leave filed by the prosecution was granted by the lower court hence the application formed part of the record and the charge was thereafter read to all the accused persons in the lower court and their pleas taken thereto. These are sufficient grounds to infer that the lower court granted leave to the prosecution to prefer the charges against the accused persons at the lower court. The court is urged to discountenance this issue.
ISSUE THREE
Whether the trial court was right in lumping the plea of the appellant to the two count charge and taking them as one plea.
The appellant’s counsel submitted that by the charge on which the appellants and others were arraigned there were two heads while sections 161 and 212 of the Criminal Procedure Code provide for taking the plea. It is the provision of section 212 that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried, separately. It was the contention of the appellant that the learned trial judge lumped two charges before it as one allegation and took the plea of the accused to them jointly. The appellant pleaded that:-
“The allegation are false”
The manner in which the plea of the accused was taken was not only improper but also defective. Plea taken is not only a fundamental process it should be done as provided by law. Separate counts must be separately read to the accused and he must plead to each separately else the trial shall be declared a nullity because of such irregularity. A defective plea renders a trial a nullity as it is equivalent to no plea. Cases cited are:-
Durall v. C.O.P. 19622 ALL NLR 831
Ihekwoba v. State 2004 All FWLR pt 228 pg 738
Udo v. State 2005 FWLR pt 286 pg.734 at pg 743
The Respondent submitted that the appellant and five others were arraigned on a two count charge of criminal conspiracy and culpable homicide punishable with death. It is not on record that the appellant pleaded specifically to each of the two heads of charge against him.
The court took one plea to the two count charge against him but the omission has not vitiated the trial of the appellant, neither has the irregularity led to a miscarriage of justice. The respondent cited the case Buraima v. Ajayi and Zaria Native Authority 1964 NWLR Pg 6
ISSUE FOUR
Whether the Deceased was sufficiently identified to establish the needed nexus between the victim and the act of the appellant.
The appellant submitted that this is a case where the act of an accused has to be established or linked with the causing of the death of a victim; there must be proper identification that the body collected from the scene is that identified to the doctor who performed the autopsy to determine the cause of death. Since the deceased was not identified by anybody who know him before the alleged death, the deceased is not validly identified by the court and the trial is based on speculation and the prosecution has failed to prove the material elements of the offence to secure a conviction. The appellant cited the cases-
Idemudia v. State 1999 1 NWLR pt 610 pg 200 at pg 223
Amusa v. The State 2002 FWLR pt 85 pg 382 at 385
Enewoh v. The State 1990 4 NWLR pt 149 pg 469
The Respondent submitted that the issues of the identification of the deceased to the medical doctor who performed his post-mortem examination was not actually necessary in proving the cause of death. The appellant made a confessional statement that he stabbed the deceased on his left thigh. It was the attack that left him dead. The court regarded the piece of evidence as confessional and placed a high probational value on same in determining the nexus between the accused and the act which caused the death of the deceased.
ISSUE FIVE
Whether the prosecution proof the case against the appellant beyond all reasonable doubt to sustain the conviction.
The appellant submitted that the prosecution has the burden of proving all the essential elements in a case of culpable homicide punishable with death. The evidence of the prosecution in this case failed to meet this standard. The identity of the deceased was not established to the doctor. There were contradictions and inconsistencies in the evidence of the prosecution witnesses, the unreliability of the exhibits, none of the knifes before the courts was used by the appellant to stab the deceased, the photographs before the court should not be relied upon as the negative were not produced. The evidence before the court failed to establish the offence of conspiracy. The investigation into the case was shoddy. The facts to be considered whether death was the likely or probably consequence of the appellant’s act were not available such as the degree of force used, the weapon used, the part of the body of the deceased, the weapon struck. It is usually less risky to sustain an injury on the thigh than on the neck, head, or ribs or chest. This court is to hold that the legal requirements of the offence of culpable homicide were not proved beyond reasonable doubt by the prosecution, this appeal should be allowed.
The respondent submitted on this issue that the evidence of PW1, PW2, PW3 and PW4 confirmed by Exh C the medical report show that Jubrin Umoru Okpanachi is dead. The evidence of PW1, PW3 and PW4 show that it was the stabbing of the appellant on his left thigh that led to the death of the deceased. The evidence of the prosecution witnesses and that of the appellant is sufficient to ground the conviction of the appellant, and establish that the prosecution has proved the case against the appellant beyond reasonable doubt as required by section 138(1) of the Evidence Act. This court is urged to dismiss the appeal on this ground. The Respondent referred to the case of-
Monday Edhigere v. The State 1996 9.10 SCNJ 36
ISSUE SIX
Whether having found that the evidence of the prosecution did not sufficiently establish the case of conspiracy. There was any other evidence left that could sustain the charge of culpable homicide with death upon which the appellant could rightly be convicted.
The appellant maintained on this issue that since the trial court found that the evidence to establish the allegation of conspiracy contrary to section 97 of the penal code is not sufficiently cogent and convincing against the accused persons the court ought to have proceeded to apply the same findings to the 2nd head of charge which is culpable homicide under section 221 of the penal code. The onus is on the prosecution to prove a case beyond reasonable doubt does not shift; the prosecution had Failed woefully to discharge this as required by law.
The trial court should have discharged and acquitted all the accused persons including the appellant based on the poor quality of the evidence before it which is unsafe to convict. This court is urged to set aside the conviction of the appellant and discharge and acquit him.
The Respondent maintained the stand that on the overall evidence the prosecution has proved a case beyond reasonable doubt as required by section 138(1) of the Evidence Act. This court is urged to dismiss the appeal and to affirm the conviction of the appellant and the sentence of death passed on him.
I have carefully considered the argument and submission of counsel on the issues raised for the determination of this court in this appeal. For ease of reference and purpose of clarity this court shall not consider the six issues seriatim. Issue One, issues two and three, issues four and five and finally issue six in that order.
ISSUES ONE
This raised question as follows:-
(a) Whether the trial court considered the defence of self defence raised by the appellant
The appellant’s contention was that the learned trial judge did not appreciate or evaluate the strong defence of self defence raised by the appellant both in his extreme judicial statement and in his evidence before the court. The summary of the defence is that the deceased accosted him while holding a knife and threatened to stab him. The deceased was stronger and bigger than him. When he dogged the deceased and the knife fell he picked it up and decided to inflict an injury that will incapacitate him on his left thigh. It was not his intention to kill him and he was not dead when he left him. The respondent conceded that the learned trial judge did not consider the defence raised by the appellant but submitted that the failure of the trial judge to consider the defence did not occasion a miscarriage of justice.
Generally speaking an appellant who asserts that the prosecution failed to prove his guilt beyond reasonable doubt before convicting him has the duty to prove his assertion, while 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.
Ekpe v. the State 1994 9 NWLR pt 368 pg 263
Otesa v. The State 1986 2 NWLR pt 24 pg 648
It is therefore trite in criminal trial that no matter how weak or stupid a defence raised by an accused may appear it must be considered by a trial court. Audu v. The State 2003 7 NWLR pt 820 pg 516, Amada v. State 2004 12 NWLR pt 888 pg 520, Ibikunle v. The State 2005 1 NWLR pt.907 pg.387, Namsoh v. State 1993 5 NWLR pt 292 pg 129
The appellant in this case raised the defence of self-defence in his statement to the police submitted as Exh B in the trial court. It is apparent in the judgment of the learned trial judge that he laid emphasis on the statement as a confessional statement rather than one raising a defence of self-defence. The relevant portion of the statement of the appellant on pg 12 of the Record of appeal reads:-
“Then on the 24/6/99 in the evening I went to go and buy something on the road side then Jibrin Umoru Okpanachi stop me and he told me that God has catch me today then from there he (refuse) removed knife in order to stab me with it I then dogged, and grip him and he fall down as the leg enter gutter and the knife fall away from his hand I then pick the knife then told him that I am going to stab you since you have missed me. I then stabbed, him on his left thigh the knife I use on the Jibrin Umoru Okpanachi now deceased the knife is not among the knife here with the police, and when I stabbed him with the knife ran away from the place before I drop the knife. I cannot identify the knife I use on him.”
I shall now consider what constitutes self defence. Self defence is a defence of oneself or other persons whom one is under a duty to defend against a wrong-doer in prevention of a forcible and violent felony.
A man is justified in using against an assailant, a proportionate amount of force in defence of himself or other persons whom he is under a duty to defend where he considers his life or such person’s lives to be in danger.
Where a person who was attacked used a greater degree of force than was necessary in the circumstance and thereby caused the death of his assailant the trial court is entitled, after considering all the evidence adduced, to reject the issue of self defence raised by the accused and convict him of murder.
As at the time the appellant stabbed the deceased the knife with which he threatened the appellant was no longer in his possession, the knife fell on the ground and
(1) The appellant picked it.
(2) The appellant stabbed the deceased with the knife
(3) Eye-witnesses PW1, PW2 and PW3 who were at the scene testified that the deceased died shortly 1fter he was stabbed by the appellant at the scene in a pool of his blood.
(4) The medical report Exh C gave the cause of death as hemorrhage from extensive matchet cut of the left thigh. The injuries observed on the corpse by the medical doctor as indicated in Exh C reads:-
(a) Puncture Injury of the right side of the lower abdomen
(b) Deep matchet cut on the left thigh
As against the evidence of the appellant that the deceased met him that night as he was going to buy something. PW1 in her evidence testified that the appellant and his siblings also charged Jibrin Umoru, Christopher, Jonah and Timothy led by their mother Titi Sule came to their compound that night to attack his brother who just finished supper and went out of the house to ease himself.
When she raised alarm about the attack on her brother PW2 and PW3 met all these people except their mother running out of the compound of the deceased towards their own compound.
Christopher Sule, Jonah Sule, Timothy and Jubrin Umoru wrote in their respective statements to the police that a meeting was held in the house of Jubrin Umoru that since the case at the magistrate was decided in favour of the deceased they should avenge the attack on Timothy Sule by confrontation with the deceased later that evening. This meeting was held around 6pm after the parties came home from the Magistrate Court. The deceased was attacked with a knife by Silas Sule the appellant thereafter.
In the circumstance the defence of self defence was not open to the appellant.
Queen v. Adelodun 1959 WRNLR 114
State v. Agbo 1973 3 ESCLR pt 1 pg 4
Duru v. The State 1993 3 NWLR pt 281 pg 283
Laoye v. The State 1985 2 NWLR pt 10 pg 832
Nungu v. Queen 1953 14 WACA 379
Aganmonyi v. A-G Bendel State 1987 1 NWLR pt 47 pg 26
Stephen v. The State 1986 5 NWLR pt 47 pg 26
Audu v. The State 2003 7 NWLR pt 820 pg 516
State v. Usman 2004
ISSUES TWO AND THREE
The crux of the argument of the appellant on issues two and three, is non compliance with the procedure to seek leave prefer a charge at the High Court against the appellant and others according to section 165 and non-compliance with the procedure in section 215 of the Criminal Procedure Code for a proper arraignment of an accused particularly taking his plea.
The requirements in section 215 are mandatory and not directory, as shall is the operative word in that section. The end result of non-compliance is to render the entire trial void ab initio.
The Respondent agreed that though leave to prefer a charge was filed by the prosecution pursuant to section 185(b) of the Criminal Procedure Code, in the Record of Proceedings this court should invoke section 150(1) of the Evidence Act to presume that leave was granted hence the lower court proceeded with this trial and took the pleas of the accused persons. The Respondent also agreed that the lower court accepted the simple plea of each accused as plea to the two count charge against him as recorded on page 21 of the record. The appellant has failed to show that the steps taken by the lower court have led to a failure of justice in the case. The record of proceedings from the High Court of Kogi State, Ankpa Judicial Division pages 2-21 reflect an application for leave to prefer a charge with the proofs of evidence attached. The application for leave was made pursuant to section 185(b) of the Criminal Procedure code. The case came up for the first, time before the lower court on the 9th of October 2000 and on the 22nd of October 2000 after allowing an amendment to the charge at the request of the prosecution. The learned trial judge proceeded to take the plea of the accused persons. I find it appropriate to invoke section 150(1) of Evidence Act Laws of the Federation 1990 and presume that the lower court granted the requisite leave which was a condition precedent to the hearing of this matter before the lower court.
On the 22nd of November 2000 the learned trial judge took the plea of all the accused. The court wrote on page 23 of the record as follows:-
“Court: – Content of the charge reap and explained to the accused persons by Barrister J. A. Akubo who interpreted from English to Igala and vice-versa”
Court to Accused: – Do you understand the charge just read and explained to you?
1st Accused – I understand the charge
2nd Accused – I understand the charge
3rd Accused – I understand the charge
4th Accused – I understand the charge
5th Accused – I understand the charge
6th Accused – I understand the charge
Court: – Are the allegation true or false?
1st Accused – The allegation are false
2nd Accused – The allegation are false
3rd Accused – The allegation are false
4th Accused – The allegation are false
5th Accused – The allegation are false
6th Accused – The allegation are false
The charge read and explained to the accused in Igala language which they all agreed that they understood had two offences. When the accused person took the plea they used the word are to describe the allegation. The accused persons pleaded to the two offences on the charge. The accused persons were represented according to the Record page 22 by Mr. Ugwoeruchukwu – a legal practitioner.
There was no objection made by their counsel. There is raised a rebuttable presumption that the court is satisfied that the charge was explained to the accused to their satisfaction. The view of the court below that the appellant and the other accused persons knew and understood the charge is supported by the fact that they denied the offences in their defence. The fact that the plea of the accused was not recorded for each of the offence is of no moment. The object of arraignment in terms of section 215 of the Criminal Procedure Law is to ensure that justice is done to an accused by ascertaining that he understands the charge, against him and as to enable him to make his defence in effect to guarantee the fair hearing. For there to be a valid arraignment in terms of section 215 of his Criminal Procedure Law(sic). The essential requirements which must be satisfied are:-
(a) The accused must be placed before the court unfettered unless the court shall see cause otherwise to order
(b) The charge or information must be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court and
(c) The accused must be called upon to plead thereto unless there exists any valid reason to do otherwise.
These requirements are mandatory and not just directory and must be compiled with in all criminal trials. Failure to satisfy any of them will render the whole trial incurably defective, null and void. In the instant appeal the requirements were substantially followed by the trial court. Any lapse in the procedure followed by court did not occasion a miscarriage of justice.
Eyisi v. State 2000 5 NWLR pt 691 pg 555
Erekanure v. the State 1993 5 NWLR pt 73 pg 721
Kanu v. State 1998 13 NWLR pt 583 pg 531
Okoro v. State 1998 14 NWLR, pt.584 pg 18
Kajubo v. State 19881 NWLR pt.73 pg.721
Solola v. The State 2005 2 NWLR pt.937 pg.460
I regard the procedure before the trial court as not affecting the justice of the trial itself. Where an appellant and counsel acquiesced to an irregular procedure that did not lead to a miscarriage of justice they cannot be heard to complain of the procedure on appeal.
Egbedi v. The State 1981 11-12 Udosen 2007 4 NWLR pt 1023 pg.125
The issues are resolved in favour of the Respondent
ISSUES FOUR AND FIVE
Whether the deceased was sufficiently identified to establish the needed nexus between the victim and the act of the appellant. Did the prosecution prove the guilt of the appellant beyond all reasonable doubt as required by law?
The appellant argued that the deceased was not properly identified to the medical doctor who allegedly produced the medical report admitted as Exh C where the act of an accused has to be established or linked with causing the death of a victim there must be proper identification that the corpse collected from the scene is as that identified to the doctor who performed the autopsy to determine the cause of death. The prosecution must prove the case against an accused person beyond all reasonable doubt. The evidence of prosecution witnesses were materially contradictory and conflicting. The investigation of the police into the matter was shoddy and shabby.
The issue of whether death is a probable consequence of a persons act is a question of fact which depends on several factors. None of the legal ingredients of the offence of culpable homicide have been proved.
It is the duty of the prosecution to prove its case by evidence of such quality and quantity as to leave the court in no reasonable doubt as to the guilt of the accused person. This is where the prosecution fails to prove an essential element in a criminal charge or the appellant convicted in such a trial is entitled to have his appeal allowed and the conviction quashed. The burden is throughout on the prosecution to prove its case beyond reasonable doubt. In a murder charge, if there is inconsistency in the prosecutions case such as to cast doubt on the guilt of the accused, the accused is entitled to be given the benefit of the doubt, and he should be discharged and acquitted.
Abegede v. The State 1996 5 NWLR pt 448 pg 270
Kalu v. State 1988 4 NWLR pt.90 pg.503
Esangbedo v. The State 1989 4 NWLR pt 113 pg 57
Akinfe v. The State 1988 4 NWLR pt 85 pg 720
Solola v. The State 2005 2 NWLR pt 937 pg 460
Agbadion v. The State 2000 7 NWLR pt 666 pg 686
In culpable homicide cases the prosecution in order to discharge the burden of proof must prove the undermentioned essential ingredients namely:-
(a) That the deceased died
(b) That the death of the deceased was caused by the act of the accused.
(c) That the killing was unlawful and
(d) That the act or omission of the accused person which caused the death of the deceased was intentional or done with the knowledge that death or grievous bodily harm was its probable consequence.
Ogbu v. State 1992 8 NWLR Pt.259 pg 255
Onah v. State 1985 3 NWLR Pt.12 pg 236
State v. Aibangbee 1988 3 NWLR pt 84 pg.548
Onyenankeya v. State 2000 2 CLRM 81
Angulu v. State 1968 NMLR 201
Kumo v. State NMLR 227
Adava v. State 9 NWLR pt 984 pg 152
The guilt of an accused person can be proved by:-
(a) The confessional statement of the accused person
(b) Circumstantial evidence
(c) Evidence of eye witnesses of the crime.
The prosecution does not always need an eye witness account to convict an accused of murder, if the charge can otherwise be proved ,
Lori v State 1980 8.11 SC 81,
Emeka v. State 2001 14 NWLR pt 234 pg 66
The purpose of a medical report or evidence is mainly to prove the cause of the death of deceased. Such medical report/evidence must clearly show that the injury inflicted on the deceased caused the death without any intervening factor as would create the possibility that the cause of death was something else other than the injury inflicted.
In the instant case where a man is attacked with a lethal weapon and dies on the spot cause of death can properly be inferred that the wound inflicted caused the death. Where the cause of death is obvious medical evidence ceases to be of any practical or legal necessity where death is instantaneous.
There is evidence from the appellant that he attacked the deceased with a knife on the thigh. The cry of the deceased brought people to the same scene where he instantaneously died from haemorrhage. It was his dead body that was deposited in the hospital. Where there is other evidence upon which the cause of death can be inferred, as in this case, it is not vital to have resort to medical report.
The medical officer did not complain of identifying the corpse of the deceased as that brought to the hospital on 24/6/99.
Bukari v. State 1965 NMLR PO163
Uyo v. A-G Bendel State 1986 1 NWLR pt 17 pg 418
Onwumere v. State 1991 4 NWLR pt 188 pg 478
Nwachukwu v. State 2002 12 NWLR pt 782 pg 543
Ben v. State 2006 16 NWLR pt 1006 pg 582
The appellant picked on the contradictions in the case of the prosecution and that proper investigation was not carried out by the 5th prosecution – the police officer. A contradiction is a statement, action or fact that contradicts itself. A contradicting statement is an affirmation of the contrary of what was earlier stated or spoken.
It is not every inaccuracy in the testimonies of prosecution witnesses that will render such testimonies unreliable.
For contradictions in the evidence of prosecution witnesses to be material and capable of rendering the evidence unreliable and not capable of being acted upon such contradictions or inconsistencies must relate to the material ingredients of the offences charged.
The contradictions must be substantial and fundamental to the main issue for them to be fatal to the prosecutions case, mirror in accuracies and discrepancies that do not touch the justice or substance of a case should not be sufficient ground to disturb a judgment.
Igabede v. State 2006 6 NWLR pt 975 pg 100
Onubogu v. The State 1974 9 SC 1
Okeke v. State 1995 4 NWLR pt 392 pg 676
Enahoro v. Queen 1965 1 All NLR 125
Omisade v. Queen 19641 All NLR 233
If contradiction is material, it will tilt an appeal in favour of the party relying on the contradiction – the appellant. If a contradiction is immaterial it will not be of any assistanceto the party raising it.
Anehia v. State 1982 4 SC 78
Oka v. State 1975 9.10 SC 17
Onubogu v. State 1974 9 SC 1
The contradiction relied upon is the evidence of PW1 who was at the scene, that Titi Sule the mother of the accused persons led them to the scene while PW3 said that when he ran after the accused persons to their compound after attacking the deceased he met them giving an account of the incident to her. The evidence that the incident took place in the deceased family compound was overwhelming. The appellant admitted to stabbing the deceased and disposing of the knife used when he flee the scene. 2nd PW a relation of tile deceased ran to him but could not do anything to help him as the deceased died immediately. PW1 confirmed an attack by all the accused persons. This confirmed a plan by them to attack the deceased so as to save the face of their family. The deceased inflicted a cut with a knife on the thigh of the 5th Accused – Timothy Sule. The magistrate before whom he was arraigned discharged and acquitted him. The accused persons before the trial court resorted to self help. The force used on the deceased was out of proportion as a result of which he met his premature death that night. The medical report Exh C besides the deep matchet cut on the left thigh of the deceased, show that he had a puncture on the right side of the lower abdomen. This confirmed the evidence of PW1 that it was not only the appellant who attacked him. The other accused persons except the appellant denied the charge. The appellant admitted stabbing the deceased. 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.
Rabiu v. The State 2005 7 NWLR pt 925 pg 491
Kanu & Anor v. R 195214 WACA 30 at pg 32
R v. Chukwiji Obiasa 19622 SCNLR pg 402
The scenario of the incident and the immediate death of the deceased did not call for any elaborate police investigation. Where the ingredients of an offence of culpable homicide have been established, the appellant cannot be heard on procedural technicality. In the evidence before the court the learned trial judge found that death of a human being took place, and that the death was caused by the appellant and that the act of the accused was not only unlawful but was done with intention of causing death or that death would be the probable consequence of his act. Proof beyond reasonable doubt does not mean proof beyond any shadow of a doubt, and therefore if the court based on the evidence before it, entertained no doubt that the appellant committed the offence, the burden would have been discharged and the conviction of the accused will be upheld.
Obiakor v. State 2003 10 NWLR pt 776 pg 612
State v. Oanjuma 1997 5 NWLR pt 506 pg 512
Bolanle v. State 2005 7 NWLR pt 925 pg 431
ISSUE SIX
“Whether having found that the evidence of the prosecution did not sufficiently establish the case of conspiracy. There was any other evidence left that could sustain the charge of culpable homicide punishable with death upon which the appellant could be rightly convicted.”
The learned trial judge held on pages 64 and 65 of the Record of Appeal that allegation of conspiracy contrary to section 97 of the Penal Code is not sufficiently cogent and convincing to establish the offence against the accused persons. In the light of the above and in view of the inconsistencies in the evidence of the prosecution witnesses, it was his view that case of conspiracy has not been made out against the 2nd, 3rd, 4th, 5th and 6th accused persons. Accordingly 2nd, 3rd, 4th, 5th and 6th accused persons were thereby discharged and acquitted of the offence of conspiracy.
The learned trial judge before reaching his verdict on the offence of conspiracy failed to go into details of the inconsistencies in his judgment. This omission is very vital in that it is not even contradiction or inconsistency in the prosecutions case that would warrant the, acquittal of an accused person. The contradiction or inconsistency must be substantial and fundamental to the main issues before the court. Where there exists some minor discrepancy between a previous written statement and subsequent testimony in court, such discrepancy or disparity would not destroy the credibility of the witness.
Ikemson v. State 1989 3 NWLR pt.110 pg 455
Theophilus v. State 1996 1 NWLR pt 423 pg 139
Okonji v. State 1987 1 NWLR pt, 52 pg 659
Uyo v. A.G Bendel State 1986 1 NWLR pt 17 pg 418
Asariya v. State 1987 4 NWLR pt 67 pg 709
Gabriel v. State 1989 5 NWLR pt 122 pg 457
State v. Danjuma 1997 5 NWLR pt 506 pg 512
The disparity between the evidence was as regards those who were present at the scene of crime according to the evidence of PW1 and PW3. Whereas the possibility of the 6th accused returning to her compound after leading her children to the scene cannot be ruled out. It is impossible in offences of this nature to record identical eye witness account of the incident, save where the story is concocted. The judgment of the lower court on the offence of conspiracy failed to demonstrate in full a dispassionate consideration of the issues properly raised and heard by court. The judgment on that aspect was scanty and devoid of any legal or logical reasoning or substance.
Ogbomoh v. State 1985 1 NWLR pt.2 pg.223
The statements of the 2nd, 3rd, 4th and 5th accused persons made to the police at Lokoja on the 10th of July 1999, disclosed a meeting held by the accused persons except the 601 accused where they decided to confront the deceased later on the night of 24/6/99. They regarded the attack of the deceased on the 5th accused following which the magistrate at Inye discharged and acquitted him as an insult to their family. The 1st PW and 3rd PW saw all these accused persons at the scene where the deceased was attacked following which he died. It is noteworthy that the accused denied such meeting in their oral evidence before the court. Where the evidence of a witness is materially contradictory of his earlier statement to the police, the witness Should be regarded as unreliable and his evidence ignored. Such evidence can however be accepted and relied upon if the contradiction is explained to the satisfaction of the court. The evidence of each accused ought to have been discountenanced in the absence of satisfactory explanation. The trial court did not consider the offence of conspiracy or this aspect of the evidence of the 2nd – 5th accused persons. Dara v. State 1993 3 NWLR pt 281 pg 283
Onubogu v. State 1974 9 SC 1:,
Agwu v. State 1965 NMLR pg.18
Agbi v. State 2003 3 NWLR pt.648 pg 169
Conspiracy lies in the bare agreement and association to do an unlawful thing which is contrary to or forbidden by law whether that thing be criminal or not and whether or not the accused had knowledge of its unlawfulness. It is open to the trial court to infer from the fact of doing things towards a common intention and a common purpose. The reason being that the crime of conspiracy is usually hatched with utmost secrecy and the law recognises the fact that in a situation it might not always be easy to lead direct and distinct evidence. The fact that there was no positive evidence of any agreement between the accused persons to commit the offence is not enough to hold that the prosecution cannot establish the charges of conspiracy. In most charges of conspiracy nobody except the conspirators themselves can give direct and positive evidence of the agreement. The court can therefore infer a conspiracy and convict if it is satisfied from the evidence that the accused 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. The conspirators need not know themselves and need not have agreed to commit the offence at the same time.
Clark v. State 1986 4 NWLR Pt.35 pg 381
Gbadamosi v. State 1991 6 NWLR pt.196 pg 182
Njovens v. State 1973 5 SC.7
Majekodunmi v. Queen 14 WACA 64
Daboh v. State 1977 5 SC 197
Onoehle v. Republic 1966 1 All NLR 86
Haruna v. State 1972 All NLR
Nwankwo v. FRN 2003 4 NWLR pt 809 pg.1
Abacha v. State 2002 11 NWLR pt.779 pg 437
Where the trial court has failed to appreciate, appraise and evaluate the evidence before it and as a result arrived at a wrong decision the appellate court may intervene, revisit the evidence and, draw the appropriate inferences and conclusions.
This will be more so if the issue on appeal is a question of inference to be drawn from established facts or evidence on record.
Woluchem v. Gudi 1981 SC 291
Balogun v. Agboola 1974 10 SC 111
Okafor v. Idiyo III 1984 1 SCNLR P9 481
Sanyaolu v. State 1976 5 SC 37
Nwankwoala v. State 2005 12 NWLR P9 637
The gist of the offence of conspiracy is in the criminal acts of the accused persons done in pursuance of an apparent criminal purpose in common between them. Where an agreement to further a criminal act is not established there can be no conspiracy.
Though the 3rd accused Jonah Sule mentioned in his statement Exh B3 about the meeting held by the 1st – 5th accused persons on 24/6/99 he advised the others to forget about the court judgment, and the entire incident. Timothy Sule supported him. Timothy Sule – 5th accused in his statement Exh 34 at the meeting discourage the other accused persons in; their plan to revenge the act of the deceased in stabbing Timothy. The 3mactused further said in the statement that in executing the plan to revenge – Jubrin Umoru carried stick, Silas the appellant carried knife, and Christopher the 2nd accused carried knife. Timothy Sule and himself disagreed with the plan – hence they did not go with them. The evidence of PW1 and PW3 confirmed that they attacked the deceased.
Two knives were recovered at the scene and handed over to the police. The appellant gave evidence that he stabbed the deceased. The medical report revealed a puncture injury of the right side of his lower abdomen of the deceased to which the appellant did not refer to in his statement.
In the statement Exh B1 the appellant revealed that he stabbed the deceased when he had the opportunity to get hold of the knife. His evidence before the trial court was a mere after thought. The other injury on the corpse show that the deceased was attacked by more than one person.
I regard the decision of the learned trial judge in the circumstance of this case as perverse in that he decided to shut his eyes to the evidence before the court. The name of Titi Sule was not mentioned as one of those who participated in the meeting while the evidence did not reveal the role she actually played in the attack of the deceased which caused his death.
In the surrounding circumstance of the evidence available on the record of proceedings about the incident and regardless of the contradiction or quality of the investigation in this matter – I regard the evidence of the prosecution as more convincing and credible in arriving at the truth of the matter.
Woluchem v. Gudi 1981 5 SC 291
State v. Usman 2005 1 NWLR pt 906 pg 80
State v. Ajie 2000 11 NWLR pt.678 pg.434
Where common intention is established a fatal blow as in this case with a knife given by one of the parties is deemed in the eyes of the law to have been given by all those present and participating.
The person who delivered the fatal plow in such a case is no more than the hand by which others struck.
Offor v. Queen 1955 15 WACA
Adekunle v. State 1989 5 NWLR pt.123 pg 505
Nwankwoala v. State 2005 14 NWLR pt 1000
Ikemson v. State 1989 3 NWLR pt 110 pg 455
The appellant struck on behalf of all the others in furtherance of the agreement to attack the deceased on 24/6/99
The appellant inflicted the deep cut on the left thigh of the deceased which caused the haemorrhage – that resulted in his instantaneous death. The knife used which the appellant admitted he threw away was a lethal weapon. A man is presumed to intend the natural consequences of his act. Where a man causes another person grievous bodily harm, he is presumed to have intended to kill that person and he would be guilty of murder irrespective of his intention.
The learned trial judge was right when it convicted the appellant of murder. I concluded earlier that the finding on the offence of conspiracy was perverse and this court has every reason to interfere with it.
Woluchem v. Gudi 1981 5 SC 291
State v. Usman 2005 1 NWLR pt 906 pg 80
State v. Ajie 2000 11 NWLR Pt.678 pg 434
In the final analysis there is overwhelming evidence to convict Silas Sule, Christopher Sule and Jubrin Umoru of the offences of conspiracy and culpable homicide, while the benefit of doubt should be resolved in favour of Jonah Sule, Timothy Sule and Titi Sule respectively.
I am mindful of the fact that in criminal trials, justice has many faces meaning – justice for the victim, justice for the accused and justice for the society.
The scenario was a village set up.
A family decided to have recourse self help because the magistrate failed to meet their aspiration for justice.
This incident occurred in 1999. The entire village must have been in gloom ever since a family lost a son and another family’s son has a hangman’s noose around his neck. The affected families must have learnt their lessons and even the entire villagers. It will be casting darkness on the entire village to send the case back for re-trial or trial de novo. Vital evidence may not even be easy to come-by. It is therefore in the interest of peace in the village not to change the verdict of the trial court.
Appeal is dismissed for lacking in merit, while the judgment of the lower court is affirmed in respect of the appellant only.
Other Citations: (2007)LCN/2304(CA)
