Alpha Paul V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALUMJE, J.S.C.

The Appellant herein was on the 21st of January, 2011, arraigned before the Taraba State High Court, on a one count charge of culpable homicide punishable with death under Section 221(a) of the Penal Code.

Appellant pleaded not guilty to the charge. In order to prove its case, the prosecution called five witnesses and tendered various items including a medical report which was tendered from the bar. These items were admitted in evidence. Parties addressed the Court through their respective Counsel. In a reserved and considered judgment delivered on the 27th April, 2012, Ali I. Andenyangtso J., found the Appellant guilty as charged and sentenced him to death by hanging till he be dead.

The Appellant felt aggrieved and therefore filed an appeal at the Court of appeal Yola Division. His appeal was heard and in a unanimous decision of the lower Court, (Coram Bada, Sankey and Jauro JJCA) delivered on the 19th December, 2013, his appeal was dismissed. The instant appeal is against the decision of the lower Court. The Appellant’s notice of appeal at pages

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199-206 of the record of this appeal, filed on the 11th March 2014 contains eight grounds of appeal.

Parties filed and exchanged briefs of argument. Mr. F.K. Idepefo, Learned Counsel for the Appellant submitted two issues for determination of this appeal as follows: –

1. Whether the Honourable Justices of the Court of Appeal were right to rely on Exhibit “AP2” to fix the cause of death of the deceased person and consequently held the Appellant responsible for the death of the deceased person
2. Whether the Honourable Justices of the Court of Appeal were right when they held that Exhibit “AP1” the extra-judicial statement of the Appellant amounted to an admission by the Appellant that he committed the offence of culpable homicide for which he was charged and consequently resolved all the doubt arising from the evidence against the Appellant

Mr. Y. N. Akirikwen, Learned Attorney-General, Taraba State, the author of the Respondent’s brief of argument also distilled two issues for determination of this appeal. They read thus:-

1. Whether the Honourable Justices of the Court of Appeal were right in holding that Exhibit “AP1” is a

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confessional statement.

2. Whether the Honourable Justices of the Court of Appeal were right in relying on Exhibit “AP2” to attribute the cause of death of the deceased to the act of the Appellant

Before I consider the argument of Learned Counsel in support of the issues they have formulated, I find it imperative to set out the brief fact of this case, which is simple and straight forward. On the 15th of August, 2010 at about 1.00 pm the Appellant who was living at Bariyanga village, via Gunduma, Gassol local Government Area of Taraba State with his wife, Rahab Alfa Paul, before this incidence, left their home and went to a television viewing center to watch football.

The wife also left home and went to where she sold locally brewed alcohol popularly called “burukutu.” The Appellant returned home late in the night and found that the door leading to their bedroom was locked from inside. Knowing that his wife was inside, he called severally and knocked at the door for his wife to open the door, there was no answer. He now kicked open the door with his foot and entered the room. A quarrel ensued between him and his wife. This quarrel degenerated

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into a fight. One Mr. Danladi Yayeh an uncle to the Appellant, heard about the fight and came to the Appellant’s house at about midnight on the same 15th August, 2010 with his two wives and when he entered into the Appellant’s room, he found him fanning his wife who was already unconscious. Danladi Yayeh who testified as PW1 at the trial Court went to town and secured a vehicle for the sole purpose of conveying the Appellant’s wife to the hospital.He reported the incidence to the police and was given a policeman who came with him to the Appellant’s house. When they got to the house he met a crowd and heard from some members of the crowd, saying that Rahab had died. It was at this instance that some of Rahab’s relations who were among the crowd pounced on him and started to beat him. He returned to the police station and told the officer in charge that Rahab had died. The police officer now used the vehicle that was procured by PW1 and conveyed the corpse of Rahab to the Referral Hospital in Mutum Biyu.

The Appellant who saw what the relations of his wife did to his uncle went into hiding and was subsequently arrested at Yoro Local Government Area and

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handed over to the Criminal Investigation Department, police headquarters Jalingo.

I have read the briefs of argument settled by Learned Counsel for the parties and the record of this appeal and I have come to conclusion that the only issue calling for determination of this appeal is whether the lower Court was right when it held that the prosecution has proved its case against the Appellant beyond reasonable doubt.

The charge against the Appellant at the trial Court is culpable homicide punishable with death under Section 221 (a) of the Penal Code. This Section provides as follows: –

“Except, in the circumstances mentioned in Section 222, culpable homicide shall be punished with death if the act by which the death is caused is done with the intention of casing death.”

Culpable homicide is defined under Section 220 of the same Penal Code as follows: –

“220, Whoever causes death: –

(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or

(b) by doing an act with the knowledge that he is likely by such act to cause death; or

(c) by doing a rash or negligent act, commits

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the offence of culpable homicide.”

Homicide therefore means the act of killing of a person or persons by another person or persons. It is the act of purposely, knowingly or recklessly or negligently causing the death of a human being. See Umaru Adamu v The State (2014)10 NWLR (Pt.1415) 441, Apishe v The State (1971)1 All NLR 50, Takida v State (1969)1 All NLR 270; Williams v IGP (1965) NMLR 470.

The Law is settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such crime is or is not directly in issue in the action. See Section 135 (1) and (2) of the Evidence Act 2011, Akpan v The State (1990)7 NWLR (Pt.160)101, Adamu v A.G. Bendel State (1986) 2 NWLR (Pt.22) 284.

Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999, provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Flowing from

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this Constitutional provision, it is plain that the burden of proof in criminal cases is on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift.

For the prosecution to prove the offence of culpable homicide, it must prove the following ingredients:

1. That the death of a human being has actually taken place.
2. That such death was caused by the accused person.
3. That the act of the accused that caused the death was done with the intention of causing death or that the accused knew or had reason to believe that death would be the probable consequence of his act.

All the three ingredients must be proved before a conviction can be secured.

See Oguno v The State (2011) 7 NWLR (Pt. 1246) 314, Gira v The State (1996) 4 NWLR (Pt.443) 375, Adava v The State (2006) 9 NWLR (Pt.984) 152, Akpa v State (2007) 2 NWLR (Pt.1019) 500; Uwagboe v State (2007) 6 NWLR (Pt.1031) 606.

In the instant case, both parties are ad idem that Rahab Alfa Paul, the wife of the Appellant died on the 15th of August, 2010.

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PW1, Mr. Danladi Yayeh, uncle to the Appellant confirmed in his evidence that Rahab Alfa Paul died in the following words: –

“I came back to the police station and informed the officer-in charge that the lady had died and he arranged for a vehicle to convey the corpse to the Divisional Police Headquarters Mutum Biyu.

I went along with them. The corpse was taken to the first Referral Hospital Mutum Biyu that night.”

PW4, Corporal John Alome, attached to the Nigeria Police Division, Mutum Biyu also confirmed the death of Rahab in the following words:-

“On the receipt of the information, I booked at the station and with a team of police officers and conveyed the corpse of Rahab the deceased to the first Referral Hospital Mutum Biyu where post mortem was conducted and a report was issued. The Doctor then was Sunday Oduniyi, the P.M.0.”

The Appellant, under cross examination admitted that he would not know whether his wife, before her death, used to make liquor, popularly known as “Burukutu.”

All these pieces of evidence point to the fact that Rahab, the wife of the Appellant is dead. The next question is whether the

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death of Rahab was caused by the Appellant. Learned Counsel for the Appellant submitted that there were other possibilities that the cause of Rahab’s death could be attributed to other than the act of the Appellant which the prosecution neglected to investigate. Learned Counsel made reference to the evidence of the Appellant, where he testified that he was outside when he heard his daughter crying, and when he got into the room, he saw his wife foaming from her mouth, and when he checked around he saw empty container of herbicide, and contended that the woman might have died as a result of ingesting herbicide. In a further argument, Learned Counsel submitted that the lower Court was wrong when it held that Exhibit AP1, the extra-judicial statement of the Appellant is a confessional statement.

According to the Learned Counsel, there is nothing in Exhibit “AP1” suggesting that the Appellant admitted committing the offence for which he was charged. Learned Counsel urged this Court to hold that the prosecution has not linked the Appellant with the death of his wife.

In answer to the issues raised by Learned Counsel for the Appellant, the Learned Attorney

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general submitted that the Learned Justices of the lower Court were right when they held that Exhibit “AP1” is a confessional statement in which the Appellant clearly admitted the commission of the offence for which he was charged.

On whether the death of Rahab was caused by the Appellant, the lower Court extensively considered the testimonies of the witnesses before the trial Court and came to the conclusion that it was the act of the Appellant that caused the death of Rahab his wife. In respect of Exhibit AP1, the lower Court held at page 192 of the record as follows: –

“Exhibit AP1 is clearly confessional in nature, because the appellant admitted fighting with his wife and in the course of the fight she fell down.

Confessional statement is the best evidence and a Court can convict based on confessional statement alone.”

What then is a confessional statement Section 28 of the Evidence Act defines a confession to mean an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. The crime admitted in a confession must be the crime for which the accused is charged with. In

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the instant case, the Appellant was charged with culpable homicide in that he killed his wife. Did the Appellant admit in Exhibit AP1 that he killed his wife For a proper answer to this question, the extra-judicial statement of the Appellant Exhibit AP1 deserves a careful scrutiny, and it is reproduced hereunder as follows:-

“I the above name and address voluntarily elect to state as follows, after duly caution and understood. That on the 15/08/10 at about 1300 hrs I left to a studio to go and watch a football match while my wife left to a nearby market to sell her Burukutu local drink. Around 2100 hrs I returned back home and met my room was locked inside which I knew it was my wife by name Rahab Alpha. I then call on her but she couldn’t answer me. I still knock on the door but she refused to open the door, then I hit the door with my leg and it open, I went in and met her sitting on the bed, while her daughter was laying on the ground. I then asked her why I called her and even knock but she refused to open the door for me, she then stood up and answered me that I should go back to where I am coming from. I still asked her that what

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is happen that she is saying I should go back to where I am coming from. She then used her hand and slapped me on my face. Immediately I was provoked. I used my hand and also slapped her and we started fighting each other inside the room to the extent that she even fell down. Then I ran outside and she ran after me. When I realize that she is running toward me I then ran outside the compound. Then she went back inside the room while I was sitting outside the compound. Within 30 minutes I heard my daughter named Rejoice was crying I then went back to the room to know why the child was crying. On my entering into the room I saw my wife was laying on the bed while the child placed her hand on the body of the mother. And I saw my wife laying breathing and foaming through her mouth. Then I send one of my wife younger sister by name Keziah Joseph to go and called my step father by name Danladi Yayeh. When he came with two wives and they went inside the room. Then one among the wives started crying by name Antiah Danladi. Then my step father went and arrange for a vehicle to carry her to the Hospital. When (she) he returned back he saw the relation to (the) my wife

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were already on ground and they started beating my step father and I ran to Jalingo and meet one of my uncles by name Obadiah Kpanti and he brought me to SCID Jalingo.

The time my uncle came with a car to the hospital, he came with Policemen from Gunduma. It was then I saw the relation to my wife beating my uncle. When I saw it I became afraid and ran away for my dear life. As I was running I heard some of them saying she is dead I never know that the fight will result to her death because I did not intend to kill her. I have been fighting with my wife on several occasions and nothing happened. This is just (it will) an accident because I never expected it will happen like this. I am pleading with the authority concerned to sympathize with me and pleading with the authority concerned to sympathize with me and forgive me. I still have no reason of killing my wife because there is love between the two of us. That is all.”

In this statement, appellant admitted that he and his wife fought and that his wife fell down. He also admitted that this was not the first time that he and his wife fought each other and nothing happened.

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In Gbadamosi v The State (1992) 9 NWLR (Pt. 266) 465, this Court per Uche Omo JSC held:-

“In his judgment, the learned trial Judge held Exhibit ‘J’ which is the statement of the 2nd appellant to the police to be a confession. what the 2nd Appellant admitted in that statement is being a party to the attempted sale of the stolen car. That is not offence for which he was charged. To constitute a confession, a statement must admit or acknowledge that the maker thereof committed the offence for which he was charged.

It must in so doing be clear, precise and un equivocal.”

I have gone through Exhibit AP1 and I am of the firm view that it has fallen short of the requirement of a confessional statement. The statement of the Appellant did not admit clearly, precisely and unequivocally that he killed his wife. I therefore agree with Learned Counsel for the Appellant on this point. However, a statement wrongly admitted as a confessional statement, does not become obsolete as same can, if it has no defect, be admitted as an ordinary statement and be relied upon as a basis for conviction. See Gbadamosi & Anor. v The State (Supra). To that extent, the contents of

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Exhibit AP1 was tendered and admitted in evidence without any objection. There is no evidence that it was made under duress, threat or any form of inducement. Since there is no apparent defect on Exhibit AP1, it is an ordinary statement that can be relied upon in reaching a decision as to whether the death of Rahab is caused by the Appellant.

PW1, Danladi Yayeh stated in his testimony before the trial Court that at about midnight on 15th August 2010, one Keziah Joseph came from the Appellant’s house and knocked at the door. He came out and asked her what happened that she came to his house so late in the night. Keziah told him that the Appellant and his wife Rahab were fighting.

He and his two wives went with Keziah to the Appellant’s house; He went in and met the Appellant fanning his wife. When he asked the Appellant repeatedly three times, to know what happened, the Appellant broke down and started crying. This narrative by PW1 is corroborated by PW2 and PW3, who are wives to PW1. If the testimonies of PW1-PW3, were left at that stage, one would have attempted to say that the story about the fight is hearsay. The Appellant in Exhibit AP1

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confirmed the testimonies of PW1 -PW3 that he and his wife fought when he returned from the television viewing studio where he had gone to watch football. The Appellant was therefore the last person that was seen with the deceased and there is evidence that they fought before the deceased died.

In his evidence in chief, the Appellant denied fighting the wife. He testified that when he asked for food from the wife, they had a miss-understanding which resulted in a quarrel. The wife tried to hold him by the shirt; he stood up, removed the shirt and ran out. Later he heard her junior sister Kezia crying, and when he went in, he saw his wife lying on the ground and foaming from the mouth. Continuing with his testimony, Appellant stated that when he got into the house, he observed that the container of herbicide he kept in the house was empty. In considering the Appellant’s testimony at the trial Court, the lower court held: –

“The medical report in Exhibit AP2, stated suffocation, severe brain injury secondary to beating and certified the cause of death to be suffocation and severe traumatic injury. The medical report therefore conclusively rules out the

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herbicide theory or story, as propounded by the Appellant in his evidence in chief.”

Learned Counsel for the Appellant submitted that the lower Court was wrong to have relied on Exhibit “AP2” as it does not command any evidential value. First Learned Counsel submitted that the name of the doctor that prepared the Exhibit does not appear on its face. Secondly that the doctor that issued the report was not called as a witness so as to be cross examined with regard to his qualification, and that the Appellant was not given fair hearing because he was not given the right of cross examining the doctor. Section 249 (3) (a) (b) and(c) of the Criminal Procedure Code provides as follows: –

“249(3)(a) A written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of providing the nature of any injuries received by and the physical cause of the death of any person who has been examined by him.

(b). On the admission of such report, the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such

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disagreement shall be recorded by the Court.

(c). If by any reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend and give evidence in person, the Court shall summon such medical practitioner to appear as a witness.”

Although Section 249 (3) (b) provides that the written medical report shall be read to the accused person after its admission in evidence and he shall be asked whether he disagrees with any statement therein, where the accused person is represented by a counsel, the Court needs not ask the accused if he agrees with any statement in the medical report. See A.G. Difa v The State (1977) NNLR 224. The contention of the Learned Appellant’s Counsel is that Exhibit AP2, the medical report was not tendered through its maker as such the Appellant, was denied the right to fair hearing as he was not allowed to cross examine the maker of the said exhibit. Learned Counsel is clearly wrong in his submission. By the provision of Section 249(3)(a) (b) and (c), a medical report is admissible

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even if it is not tendered through the maker. When the Application to tender Exhibit AP2 in evidence was made at the trial Court, Learned Counsel for the Appellant’s objection was not based on the Court’s failure to read Exhibit AP2 to the Appellant. The objection was that Exhibit AP2 was not tendered through its maker and that the said exhibit was not certified by a pathologist, entomologist, Accountant-General or Government Chemist as provided for under Section 42(1)(a) of the Evidence Act. The trial Court in a considered ruling overruled the objection. At the lower Court, the only challenge to the trial Court’s ruling was that the maker of Exhibit AP2 was not called as a witness.

The lower Court rightly in my view held that the failure to procure the maker of Exhibit AP2 was explained and the trial Court was right when it admitted the said Exhibit in evidence. I agree with the lower Court, as I have explained elsewhere in this judgment that a medical report is admissible even if it is not tendered through its maker, provided that the reason for the absence of the maker is provided. The prosecutor had explained that the medical Doctor, Sunday Oduniyi

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who prepared the report was no longer in the service of Taraba State Government. I also agree with the lower Court, that the medical report which was rightly relied upon by the trial and lower Courts conclusively ruled out the herbicide story as propounded by the Appellant in his evidence in chief.

The herbicide story was neither disclosed to PW1 who met the Appellant fanning his wife nor was it disclosed to the police. It is clearly an afterthought.

In Exhibit AP2, the cause of death of Rahab is given as “suffocation, severe traumatic brain injury.” This report is consistent with the evidence of PW1-3 and DW1, the Appellant, who all testified that the Appellant fought his wife when he broke the door and gained entrance to their room. It is therefore very clear that it was the act of the Appellant that caused the death of the deceased.

The question now is whether the act of the Appellant that caused the death of his wife was done with the intention of causing her death or that the Appellant knew or had reason to believe that death would be the probable consequence of his act. On this the lower Court agreed with the trial Court that the 3rd

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ingredients of the offence of culpable homicide has been established in the following words:-

“Though there were no eye-witnesses to the fight between the appellant and the deceased, the confessional statement and the circumstantial evidence have proved the 2nd and 3rd requirements beyond reasonable doubt. Consequent upon the foregoing, all the essential ingredients for the offence of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code have been proved beyond reasonable doubt.”

Intention is a state of mind in which a person seeks to accomplish a given result through a course of action. It is therefore a mental attitude which can seldom be proved by direct evidence, but must ordinarily be proved by circumstances from which it may be inferred. A state of mind existing at the time a person commits an offence may be shown by act, circumstances and inferences deducible therefrom. In the instant case, Exhibit AP2 has shown that the deceased was suffocated and she suffered severe brain injury. By the nature of the injury that was inflicted on the deceased, the Appellant clearly intended

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to kill the deceased. The sole issue formulated by me is accordingly resolved against the Appellant. The appeal is devoid of any merit and it is hereby dismissed. The decision of the lower Court is hereby affirmed.

SC.496/2014