Peoples Democratic Party (Pdp) V. Congress For Progressive Change (Cpc) & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

The Appellant was tried at the Kano Judicial Division of the High Court of Kano State on a one count charge which reads as follows:

“That you Rabi Isma’il on or about the 25th December, 2002 at Rurum dam along Tiga Road did commit culpable homicide punishable with death, in that, you caused the death of one Auwalu Ibrahim (Alias Zazu) by doing an act to writ drugging him by means of giving him a doped Eclairs sweet as a result of which the deceased lost consciousness and you later pushed him into the dam with the knowledge that death will be the probable consequence of your act and you thereby committed an offence punishable under section 221(8) of the penal code.”

The actual trial commenced on the 18th of November, 2003, when a fresh charge was substituted for the old one and the plea of the accused taken.

The prosecution called a total of 9 witnesses. The Appellant alone testified in self defence. In its judgment at the end of the trial, the Appellant was found guilty as charged and convicted. She was sentenced to death. This was by its judgment on the 5th of December, 2004.

The Appellant was not satisfied with said judgment and proceeded on appeal to the court below. In its unanimous judgment on the 3rd of March, 2008, the judgment of the trial court was affirmed and the appeal was dismissed.

The Appellant was not satisfied with that decision and has come on further appeal to this court. On behalf of the parties, briefs of argument have been filed and exchanged. The Appellant’s Brief was prepared by Tawo E. Tawo and it was filed on the 11th of February, 2011. He also prepared Appellant’s Reply Brief which was filed on the 22nd of April, 2010. The Respondent’s brief was prepared by Aliyu Umar, Learned Attorney-General of Kano State. It was filed on the 30th of March, 2011.

On the 12th of May, 2011 when this appeal was heard, learned counsel for the parties adopted their arguments contained in their respective briefs.

In the Appellant’s brief; Mr. Tawo proposed four issues for determination and which he formulated as follows:-

“1. Whether the Court of Appeal was right in affirming the conviction of the Appellant when the alleged cause of death of the deceased by the Appellant was not established.

2. Whether the lower court was right when in spite of the rejection of Exhibits 1 and 7, the purported confessional statements of the Appellant by the trial court for inherent contradictions; it still relied on same to convict the Appellant.
3. Whether the material contradictions in the evidence of the prosecution witnesses ought to have been resolved in favour of the Appellant; and
4. Whether from the totality of the evidence adduced the prosecution proved it case against the Appellant beyond reasonable doubt”.

In the respondent’s brief, Aliyu Umar, the learned Attorney-General Kano State formulated only two issues as follows:

1. Whether the lower court only relied on the oral confession of the Appellant in affirming the conviction of the Appellant.
2. Whether from the totality of the evidence adduced at the trial, the lower court is right in holding that the prosecution had proved its case against the Appellant beyond reasonable doubt.”

I have examined the issues as formulated and it is my view that the Appellant’s 1st and 4th issues and the Respondent’s second are one and the same and the determination of those issues effectively decides the appeal. Under the said all pervading issues every other issue can very well be considered. I shall however restate the substance of the arguments of counsel as they are set out in their respective briefs.

With respect to the Appellant’s first issue of whether the cause of death of the deceased by the Appellant was established, learned counsel Mr. Tawo E. Tawo referred to the reasoning and findings of the trial court at page 181 of the record relying on the evidence of the PW6, the affirmation of the findings by the Court below at page 308 of the record relying on the evidence of the PW1, PW6, PW7 and PW8 and the doctrine of last seen at page 324-325 of the record and submitted that both courts were wrong in their evaluation of the evidence. He contended that the doctrine of last seen was wrongly applied to the circumstances of this case. In support of these submissions, leaned counsel relied on GODWIN IGABELE V. THE STATE (2006) 6 NWLR (part 975) 100 at 121 BASSEY AKPAN ARCHIBONG V. THE STATE (2006) 14 NWLR (part 1000) 349 and NWAEZE V. THE STATE (19960 2 NWLR (part 428) 1. Learned counsel referred to the finding of the trial court at page 183 of the record to the effect that the death of the deceased was drowning, and contended that drowning could have been accidental and that there is no evidence whatsoever that the drowning was caused by anybody, let alone the Appellant.

Learned counsel pointed out from the evidence of the Pw6 that after the alleged first pushing of the deceased into the water, he was still alive. He referred to the evidence of the pw6 who said that on their return to the Dam, he ran away abandoning the deceased and the Appellant and contended that the pw6 did not actually see what caused the drowning. It was his submission therefore that the evidence available is merely that of suspicion which cannot ground a conviction. He relied on PATRICK IBENEME V. STATE (2003) FWLR (part 170) 1447 at 1457. The decision of the court below was perverse, learned counsel argued.