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Home » Nigerian Cases » Court of Appeal » The State V. Babawuro Usman (2004) LLJR-CA

The State V. Babawuro Usman (2004) LLJR-CA

The State V. Babawuro Usman (2004)

LawGlobal-Hub Lead Judgment Report

IFEYINWA CECILIA NZEAKO, J.C.A.

On the 24th of November, 1995, Oluoti, 1., sitting at the High Court of Justice,  Jalingo, Taraba State, delivered judgment in charge No. GGSJ/10c/90. The accused, the respondent in the main appeal herein, was  found guilty of the offence of culpable homicide pursuant to section 220(b) of the Penal Code punishable under section 224 of the  Code. He was sentenced to 11 years imprisonment. This was not the offence for which he was arraigned. The charge was for the  offence of culpable homicide punishable with death, under section 221(a) of the Penal Code. It related to the accused, causing the  death of his wife, Aminatu Babawuro. Dissatisfied with the judgment of the High Court, the State appealed to this court on four (4)  grounds.

The appellant, that is to say the State, filed its brief of argument on 28/10/96. It took the convict/respondent over six years before  taking any steps towards reacting to the appeal. He obtained leave of this court for extension of time to cross-appeal and to file his  brief of argument on 13/1/2003. His notice of cross-appeal and his cross-appellant’s brief were both filed on 10/2/2003.
In reaction to the cross-respondent’s brief of argument, the appellant/cross-respondent filed a cross-respondent’s brief on  17/4/2003.

When the appeal came up for hearing on 13/1/04, learned Counsel for the appellant, S. Haruna, Esq., Director of Public Prosecution,  (DPP) Taraba State, adopted his brief of argument. He urged this court to allow the appeal. He also adopted his cross-respondent’s  brief and urged the court to dismiss the cross-appeal.

For the respondent/cross-appellant, learned Counsel M. Igbokwe, Esq., adopted his brief of argument and the cross-appellant’s brief  filed on 12/4/2003. He also urged the court to examine paragraphs 5.3 and 5.4 of the cross-respondent’s brief of argument. He  submitted that the contents ought to move the court to allow the cross-appeal and dismiss the main appeal, as they portray an  agreement between the appellant’s and respondent’s submissions regarding miscarriage of justice caused the delay by the trial  court in delivering’ the judgment.

He submitted that the case of Chime v. Chime (2001) 1 SC (Pt.11) 1; (2001) 3 NWLR (Pt. 701) 527, relied on by the appellant’s  Counsel on the issue of jurisdiction is distinguishable and, he urged this court not to follow it. Learned Counsel sought and obtained  leave to cite an additional authority, the case of Emenamaya v. Okoroji (1987) 2 NWLR (Pt. 59) 6 at 15 SC, which should be applied.

Mr. Haruna replied that the miscarriage of justice complained of was not against the respondent and that the similarity in the  submissions of both parties must be viewed against that. In their briefs of argument, learned Counsel for the parties had identified  issues for determination. For the main appeal, the appellant’s two issues are distilled as follows:
(d) Whether or not, the learned trial Judge was justified in law, in holding that “intention to cause death” the mens rea for the offence  of culpable homicide with death under section 221(a) of the Penal Code had not been proved by the prosecution beyond reasonable  doubt to ground a conviction of the accused under the said charge as laid. (From grounds 1 and 4).
(e) Whether or not, the trial court was correct in law, to have veered-off course and to act on speculations and possibilities, rather  than on the concrete evidence before it in arriving at the conclusion as it did that the accused was not guilty of the offence charged,  but guilty of culpable homicide under section 220(b) of the Penal Code punishable under section 224 of the Penal Code, when it  found that none of the exceptions under section 222 of the Penal Code applied. (From grounds 2 and 3).

For the respondent/cross-appellant, the following 2 issues were distilled from the 4 grounds of appeal and the cross-appeal:
1. From the main appeal:-
Did the prosecution prove its case against the accused/respondent, beyond all reasonable doubt to ground a conviction under  section 221(a) of the Penal Code?
2. From the cross-appeal:-
Was the proceedings in this case and the judgment entered therein a nullity?

The appellant/cross-respondent viz the State, which filed its cross-respondent’s brief of argument on 17/4/03 had also identified two  issues from the cross-appeal, thus:-
A. Whether or not, the entire proceedings in this case and the judgment entered on 24th October, 1995, convicting the  cross-appellant was a nullity. (From ground 1 of the cross-appeal).

B. Whether or not, the failure of the learned trial Judge to comply with the provisions of section 258(1) of the 1979 Constitution,  occasioned any miscarriage of justice against the cross-appellant thereby, rendering the entire proceedings a nullity. (From ground 2  of the cross-appeal).
Before taking up the issues, let me recount some of the facts relevant to this matter.

The respondent/cross-appellant, the accused in the court below, was charged under section 221(a) of the Penal Code with the  offence of culpable homicide punishable with death for killing his wife, Aminatu, sometime in 1990, in Jalingo, within Jalingo Judicial  Division. Jalingo, was then in Gongola State. It is now in Taraba State of Nigeria, being its capital. The prosecution called 6  witnesses who testified at the trial. Among the witnesses, PW1, Abubakar Bakari who was the houseboy of the accused, gave  uncontradicted evidence of what transpired. He testified that on a Saturday night, in the month of May, 1990, he heard Aminatu  Babawuro, the wife of the accused crying. The crying later stopped.

The accused later called him, PW1. When he came into the  parlour of the accused’s house, in response, he saw the dead body of Aminatu, the accused’s wife lying there in a pool of blood. The  accused asked him to help him carry the corpse into a grave. The grave already dug was in the compound of the accused. This, he  did. The accused warned him not to tell any one that he had killed his wife and that if he did, whatever happened to him, he would  have himself to blame. He should tell anyone who enquired after his wife that she had gone to the hospital and had not returned.  PW1 further testified that on the 2nd of June, 1990, the accused went out of his house, leaving his little dog. The dog then went to the  grave, where the deceased was buried and started digging and before the accused returned, the dog had reached the hand of the  corpse. Then, the accused went to the Nigeria Police in Jalingo and reported and a policeman came back with him to the house and  looked at the grave. The police came back the next morning with other policemen to the accused’s compound and dug the grave and  found the body which the accused said was that of his wife, Aminatu.
Thereupon, PW1 was taken to the police station with the accused.

PW6, was a medical doctor, who performed a post-mortem examination of the body of the deceased, Aminatu after it was dug out.  This is another vital evidence. The corpse, found in the grave about 2 feet deep, was examined there. When it was taken out, it was in  an advanced state of decomposition. The skin was broken at one spot on the neck, there, being a straight wound, about 5cm deep  and 3cm long and on the right side of the neck. In the doctor’s opinion, death was caused by severe blood loss (hemorrhage) from  the injury on the neck which might have been caused by a sharp object. Other prosecution witnesses, PW2, 3, 4 and 5 also testified.

For the defence, the accused testified for himself and called no witness. His evidence was a denial of the charge. He said nothing  whatsoever about the evidence of PW1 or PW6. His testimony was to the effect that sometime in May, 1990, he reported to the police,  the missing of his wife from home. He could not find her at home, where he left her in the morning, when he went to Dong. Although,  his house boy, PW1 had informed him that she left home saying she was going to get some medicine from the town, she had not  returned. He said he had reported this to her relations, but no one knew her whereabouts. Sometime in June, about 1/6/90, his  attention was drawn by a woman who was in his compound to some digging by his little dog. The dog had been digging out  something which was causing some stench from a spot in his compound. This he reported to the police and when three (3)  policemen came to investigate, what they dug out turned out to be his wife’s dead body.
Under cross-examination, regarding the testimony of PW1, the accused did not address the evidence.

He simply stated that he had a  problem with the witness some months before. Significantly, the accused, while testifying in court, admitted that he was present  while PW1 testified in court. He did not however, try to rebut the so damaging and detailed evidence proffered by that witness against  him.

Parties duly closed their case after their witnesses testified, but their counsel waived their right of final address to the trial court and  the court on 21/3/95 adjourned for judgment to 11/5/95. Judgment was however, not delivered till 24/11/95.

I would adopt the appellant’s issues for determination in the main appeal. It derives from the grounds of appeal. See Labiyi v.  Anretiola (1992) 8 NWLR (Pt. 258) 139, Modupe v. State (1988) 4 NWLR (Pt. 87) 130, Oshoboja v. Amuda (1992) 6 NWLR (Pt.250)  690, Aseimo v. Abraham (2001) 16 NWLR (Pt. 738) 20 at 31.

On the other hand, the respondent’s lone issue does not derive from any of the grounds of appeal, nor even from his cross-appeal.  His lone issue in the main appeal, issue No.1, simply adopted a general system of attack on the whole judgment of the court below  and argued in his brief of argument that the prosecution did not prove its case against the accused/respondent beyond all  reasonable doubt to ground a conviction under section 221(a) or 224 of the Penal Code. The crux of his brief is that the respondent  urged this court to set aside the conviction, as there was complete failure by the prosecution to prove its case. This is not consistent  with the appellant’s grounds of appeal.

The appellant’s grounds of appeal without their particulars are set out hereunder –
“Grounds of appeal
(i) The learned trial Judge erred in law, in holding thus, “if the evidence that the accused had dug the grave prior to the killing of his  wife is believed, one could have inferred that the accused had the intention to cause death of his wife. But I do not believe the PW1,  that accused had dug the grave, before he apparently stabbed his wife … and this occasioned a miscarriage of justice.
(ii) The learned trial Judge erred in law, in convicting and sentencing the accused person under section 220(b) of the Penal Code  punishable under section 224 of the Penal Code, when he held that none of the sub-sections of section 222 of the Penal Code  applied.
(iii) The learned trial Judge misdirected himself in law, in holding that “next for consideration is this – Did the accused know or had  reason to know that death would be a “probable” and not only the ‘likely’ consequence of his act or any bodily injury, which his act was  intended to cause and this occasioned a miscarriage of justice?
(iv) The learned trial Judge erred in law, in holding that intention to cause death under section 221(a) of the Penal Code had not been  proved by the prosecution and this occasioned a miscarriage of justice.”

An issue must be distilled from a ground or grounds of appeal, and where it is not, it becomes a non-issue. For issues derive their  source from grounds of appeal. A respondent must frame his issues for determination from the appellant’s grounds of appeal. He  cannot frame issues not based on any ground of appeal, unless, there is a cross-appeal or respondent’s notice from which such  issues derive their source. See Oshoboja v. Amusa (supra) at 701, para. H. Issues for determination and arguments which suffer the  vice pointed out concerning the respondent’s issue herein ought to be discountenanced, being incompetent. See Modupe v. State  (supra) Labiyi’s case and Aseimo v. Abraham (supra), Asinupebi v. Saibu (1982) 7 SC 101, Elf (Nig.) Ltd. v. Sillo (1994) 6 NWLR (Pt.  350) 258 SC; NNS.C. v. Agricor Incorp. (1994) 3 NWLR (Pt. 332) 329 CA.

It must be pointed out also that the exception in Oshoboja v. Amuda (supra) does not avail the respondent. For not even in his  cross-appeal, did he constitute any ground of appeal from which his lone issue as to whether the prosecution proved its case  beyond all reasonable doubt, and which he argued at length in the main appeal could have been distilled.
This is clearly manifested from the respondent’s two grounds of cross-appeal set out hereunder:
Ground 1: “The entire proceeding is a nullity, illegal, null and void since the judgment was given without jurisdiction.”

Particulars:
1 . The trial Judge was no longer a member of the Taraba State Judiciary at the time of delivering the judgment.
2. As at the time of judgment, the trial Judge was functus officio and has no legal authority to further adjudicate on the matter in view  of the fact that he was no longer in charge of the Jalingo High Court, Taraba State, having been moved to Adamawa State.

Ground 2: The judgment is a nullity for violating section 258(1) of the 1979 Constitution having been delivered outside the statutory  period allowed by the Constitution of the Federal Republic of Nigeria, 1979.

Particulars:
1. Hearing in the case was concluded on 21st March, 1995, and judgment delivered on 24th November, 1995.
2. The court is obliged by section 258(1) of the 1979 Constitution to deliver its judgment within 3 months from the date of closing  hearing.”

The foregoing notwithstanding, I have decided, in the interest of justice that, rather than totally discountenance the respondent’s  issue No.1 relating to the main appeal and automatically his brief of argument thereon, to salvage and consider that part of his brief  of argument, which seem to touch on and are relevant to the matter in issue in the main appeal. Such is the part of the brief dealing  with proof of intention to cause death. This is all to ensure substantial justice, particularly, in a matter which touches on the life of a  citizen.

The issues for determination in the main appeal will now be addressed.

Issue A of the appellant questions the learned trial Judge’s justification in holding that the intention to cause death had not been  proved by the prosecution beyond reasonable doubt to ground a conviction for the offence of culpable homicide punishable with  death as charged. I will consider this with issue 1 of the respondent in the main appeal, which raised the question whether the  prosecution proved its case beyond all reasonable doubt to ground a conviction under section 221(a) of the Penal Code.

For the appellant, the following submission was proffered:- That the learned trial Judge erred in law, when he held that the  prosecution had not proved the intention to kill, the mens rea for the offence of culpable homicide punishable with death under  section 221(a) of the Penal Code to convict the respondent as charged. That the prosecution discharged the burden of proof on it to  prove the guilt of the respondent beyond reasonable doubt, having adduced credible, cogent and convincing evidence. Reviewing the  evidence of PW1, learned Counsel described it as unchallenged and uncontroverted, concluding that he set it out in extenso in order  to show that there was ample evidence to ground a conviction as charged.

Learned Counsel pointed out that the accused did not  rebut the damaging evidence of PW1 that he had dug the grave prior to asking  him to help him carry the corpse to bury, nor did he  say anything concerning the grave in his compound in his statement under caution – exhs. A and A1, or in his testimony in court. The  learned D.P.P. argued that in the face of this, the trial court ought not to have reasoned or indeed gone into speculations as he did  when he held that, “if the evidence that the accused had dug a grave prior to the killing of his wife, one could have inferred that the  accused had the intention to cause the death of his wife, but I did not believe PW1 that accused had dug the grave before he  apparently stabbed his wife”.

He submitted that it was for the accused to rebut the damaging evidence of the prosecution but he did not do so. Counsel cited the  case of lkuomola v. Oniwaya (1990) 4 NWLR (Pt. 146) 617 at 624, showing that where evidence in support of an issue is not  challenged in cross-examination, it is not right to disbelieve such evidence without sufficient reason for so doing. In this case, PW1  testified that the accused killed his wife. He was not challenged.

The learned D.P.P. argued that the trial court proffered no reason to disbelieve the forceful evidence of PW1 the witness, who saw the  body of the deceased with blood on the floor in the respondent’s parlour, when the respondent called him and asked him to help him  carry the corpse to the grave already dug, and which he did and this damaging evidence was not rebutted. Indeed, the accused said  nothing about that or the grave in his compound.

The learned D.P.P. also reviewed the evidence of PW6, the medical doctor who carried out the post-mortem examination on the  exhumed body of the wife of the accused-respondent, who found a serious wound on the right side of the neck and that death was  caused by severe blood loss from that injury which might have been caused by a sharp object. He submitted that there was enough  strong circumstantial evidence before the learned trial Judge to infer that the accused had the intention of killing his wife. This he  itemised.

He cited, The State v. Ironsi (1969) 1 NMLR 20 to show that even though the sharp object was not found, but that it is not in every case  that direct evidence is available to prove a criminal charge. Counsel argued that having found that the accused inflicted the injury  resulting in her death, that the mitigating circumstances provided by law in section 222 of the Penal Code did not apply, rejected the  defence of alibi, and, having found that the accused said nothing about the grave in his compound; that, the accused knew his wife  was not missing, when he reported that to the police, and concluded that the defence was “bogus” the evidence led by the  prosecution was positive and pointed irresistably to the complicity and culpability of the accused, the accused should have been  found guilty as charged.

Learned Counsel relied on the case of The State v. Patrick Njovens (1973) NNLR 93 at 95 and Ikemson v.  The State (1989) 3 NWLR (Pt. 110) 455; (1989) 6 SCNJ 54 at 66, in support of the proposition that the prosecution having adduced  sufficient and accepted evidence to fix the accused at the scene of the crime at the material time of the commission of the offence,  the alibi is logically demolished and the evidence of PW1 and PW6 dislodged same.

In these circumstances, counsel concluded, the learned trial Judge was in grave error after he critically examined positive and cogent  evidence of the accused’s complicity when he disbelieved PW1 on the issue of the grave and thereby arrived at the wrong conclusion  that the prosecution had not proved the mens rea to ground the conviction of the accused as charged. He then urged that the Court of  Appeal is in as good a position as the trial court to draw proper inferences from the facts proved – Akpabio v. The State (1994) 7  NWLR (Pt. 357) 635; (1994) 7-8 SCNJ 429, Woluchem v. Gudi (1981) 5 SC 219 cited. The cause of death was obvious, counsel  added.

The irresistible presumption in the circumstances of this case, counsel concluded, is that the accused, killed her deliberately, being  alone with her in the house and her death can only be explained by him.

For the respondent, his learned Counsel had pointed out that to succeed in a charge of culpable homicide not punishable with  death, the following must be established:
(i) the death of the deceased occurred as a result of the accused’s voluntary act
(ii) the accused had the intention of killing the deceased; and
(iii) the death of the deceased or victim was caused as a result of the accused’s act.
He cited-Igago v. State (1999) 14 NWLR (Pt. 637) 1 at 20, 23-4
Okeke v. State (1999) 2 NWLR (Pt. 590) 246 at 273
Akinyemi v. State (1999) 6 NWLR (Pt. 607) 449 at 464.
I must break off here to state that I agree with counsel on the foregoing.

The burden of proof, he further pointed out is always on the prosecution in criminal cases to prove the guilt of the accused beyond  reasonable doubt, only discharged by adducing credible, cogent and convincing evidence – Okeke v. State (1999) 2 NWLR (Pt. 590)  246, Akinyemi v. State (supra) Ahmed v. State (1999) 7 NWLR (Pt. 612) 641 at 673-4.

Counsel argued that, of the six prosecution witnesses, only PW1 testified to facts relating to the death of the deceased and there was  nothing to show that the death was caused by the accused, that proof that he killed the deceased must be strictly beyond reasonable  doubt, not conjecture. Ahmed v. State (supra) at 372-4, Nasiru v. The State (1999) 2 NWLR (Pt. 589) 87 at 98 & 102, Ifejirika v. State  (1999) 3 NWLR (Pt. 593) 59 at 74-81, Aigbadion v. State (1999) 1 NWLR (Pt. 586) 284 at 300.

Learned Counsel submitted, after referring to the evidence of PW6, the medical doctor who performed the post-mortem examination  on the deceased, that there was complete failure by the prosecution to prove its case beyond reasonable doubt. No weapon was  tendered, nor was the report of the doctor’s finding. In counsel’s view, the conviction must be set aside. He cited in support, the  following cases:
Akinyemi v. State (supra), Onuchukwu v. State (1998) 4 NWLR (Pt. 547) 576 at 592, Haruna v. C.O.P (1998) 7 NWLR (Pt. 557) 215 at  22, paras. D – E.

As to the finding of the learned trial Judge before convicting the respondent, to the effect that the accused must have known that the  blow or the stab was likely to cause death (see page 50 lines 11 of the records) it was submitted that this finding was not supported  by any evidence, and such a finding cannot be allowed to stand citing:-
Ajoke v. Bello (1992) 1 NWLR (Pt. 218) 380 at 402
Okeke v. State (1999) 2 NWLR (Pt. 590) 246 at 259.

It was further submitted that there was no evidence in the entire proceeding that the accused person stabbed the deceased, for, the  principal prosecution witness (PW1) only stated that he saw the deceased lying in her blood, and not what happened to the  deceased. Secondly, even if the evidence of PW6 (Medical Officer) that the deceased was stabbed is to be believed learned Counsel  questioned how this renders the accused liable for that. It was counsel’s further argument and submission that PW1 was not an  eye-witness to the alleged crime, that his evidence was at best circumstantial evidence and that for circumstantial evidence to  support a conviction, it must lead to one conclusion to the effect that an offence had been committed and that it was committed by the  accused person. Okeke v. State (supra) at 256, Adepetu v. State (1998) 9 NWLR (Pt. 565) 185 at 215 (C-E), Lori v. State (1980) 8-11  SC 81 relied upon.

Learned Counsel expressed the view that because of the trial Judge’s consideration of the fact that it was only the accused person,  who was in the house alone, he concluded that the accused person was the killer, and that he was also gravely influenced by the  unsubstantiated evidence of PW1.
There was no evidence on record to support the finding that it was only the accused, who was in the house. He stated that PW1 was  also in the house that night, and then submitted that the finding was baseless and against the evidence on record and this court  ought not to allow it to stand, and since this was the only discernible reason for the learned trial Judge’s conclusion that the accused  had something to do with the death of the deceased that finding also could not stand.

Counsel referred to the trial court’s finding at page 47 lines 31-36 as follows:-
“If the evidence that the accused had dug a grave prior to the killing is believed one could have inferred that the accused had the  intention to cause death of his wife. But I do not believe PW1 that accused had dug a grave before he apparently stabbed his wife.  Why did the PW1 not raise an alarm when he found that the accused had dug a grave?” and also, at page 47 lines 6-7 where the trial  Judge said “I do not find that accused had intention to kill his wife”.

He concluded that, there was no evidence linking the accused with the cause of the death of the deceased, and no proof by the  prosecution that the accused had the intention of killing the deceased or that he actually killed her, that no prosecution witness said  that he saw the accused with any knife or any other instrument before, during or after the incident and no such object was tendered in  evidence and that the totality of the evidence against the accused is to the effect that he was present when PW1 saw the deceased’s  body. He submitted that mere presence at the scene of a crime is not enough to prove guilt. He relied on Azumah v. R (1950) 13  WACA 87.

On appellant’s argument in his brief at page 15 paragraph 5.02 that: the accused offered no explanation on how the deceased met  her death in his oral evidence before the court, and said nothing about the grave which PW1 testified that he dug prior to the killing,  learned Counsel for the respondent, submitted that that was an attempt to shift the burden of proof on an accused person, contrary to  section 138 of the Evidence Act, Cap. 112, LFN, 1990 and Ahmed v. State (1998) 5 NWLR (Pt.550) 493 at 503 (G), that there is no  statutory duty on an accused person to prove the existence or non-existence of any fact alleged by the prosecution. It is the duty of the  prosecution to prove his case beyond all reasonable doubt and the duty cannot be shifted on the accused, he further submitted,  relying on Ibeh v. State (1997) 1 NWLR (Pt. 484) 632 at 649, 667. He argued that this was an attempt at circumscribing the  constitutional rights of the accused under section 33(5) and (11) of the 1979 Constitution Nasiru v. State (1999) (supra) at 102(G) &  106 (B-D).

To secure a conviction in a charge of murder or culpable homicide, a long line of legal authorities show that the prosecution must  proved beyond reasonable doubt that:
(1) the deceased had died
(2) his death was caused by the accused; and
(3) the act of the accused, who caused the death was intentional, having knowledge that death or grievous bodily harm was the  probable consequences of the act. See Ogba v. The State (1992) 2 NWLR (Pt. 222) 164; Gira v. The State (1996) 4 NWLR (Pt. 443)  375; Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 1; Ubani v. The State (2003) 18 NWLR (Pt. 851) 224 etc.

I must state that learned Counsel for the respondent quite rightly set out the applicable principles and authorities in his brief. The  question however is, to what extent do they apply to this case. Section 220(a) of the Penal Code the offence of culpable homicide  punishable with death for which the accused was arraigned, is committed by a person who causes death by “doing an act with the  intention of causing death or such bodily injury as is likely to cause death”.

What the prosecution must prove can be clearly discerned from the words of the provision per se –
(1) the act by which death was caused was done by the accused;
(2) the act was done by the accused with the intention of causing death.
It is the same as in murder charges generally and these are the ingredients which the prosecution has the onus under the law to  prove.

It is indeed trite law that in criminal cases, the prosecution must prove the guilt of the accused beyond reasonable doubt. See section  138(1) and (2) of the Evidence Act, Adamu v. State (1991) 4 NWLR (Pt. 187) 530; Ayub Khan v. State (1991) 2 NWLR (Pt. 172) 127;  Okeke v. State (1999) 2 NWLR (Pt. 590) 246.

The prosecution, in discharging this onus on it, is bound to adduce, not only cogent but credible evidence.

Evidence which could  ground a conviction could be direct or circumstantial. What is crucial is that circumstantial evidence to be relied upon must be so  cogent and compelling as to lead to only one conclusion, viz to the guilt of the accused. See Onah v. State (1985) 3 NWLR (Pt. 12)  236; (1985) 12 SC at 61 – 62, Idighi v. State (1976) 11 SC 31, Ukora v. State (1977) 4 SC 167; Igboji Abeke v. State (1975) 9-11 SC 97;  Onah v. State (supra) is one typical example where it was rightly found that the cumulative value of the circumstantial evidence leaves  one in no doubt as to the guilt of the accused. Said Sir Danley Alexander, CJN (as he then was), in Igboji Abeke v. State (supra)  “Circumstantial evidence should be cogent and compelling as to convince the jury that on no rational basis other than murder can  the facts be accounted for. R v. Onufrejczyk 30 CR App. R1.”

See also  Alhaji Mojeed O. Ibrahim V. Chief Oyelakin Balogun & Ors (1999) LLJR-CA

Obaseki, JSC, put it in another way in Onah v. State (supra) at page 63 “Where circumstantial evidence is overwhelming and leads to  no other conclusion than the guilt of the accused, it leaves no room for acquittal”. See also Buba v. State (1994) 7-8 SCNJ 472 at 478  per Belgore, JSC. The courts of law in performing their duty of administering justice are often enjoined to critically examine evidence  adduced before them, in order to protect innocent citizens from being punished or on the other hand to ensure that the guilty is not  set free.

Sometimes, in propagating those basic principles of our criminal jurisprudence relating to the onus of proof and proof beyond  reasonable doubt which are ascribed to the prosecution, parties fail to appreciate that there are circumstances when the onus of  proof may shift to the accused. The courts will continue to affirm those principles that the burden of proof is always on the  prosecution, but the defence must also know that that burden may shift to the accused. A typical example is where the accused may  be required to make some explanation of some facts. See Adeniji v. State (2001) 13 NWLR (Pt.730) 375 SC. Such is the case where  damaging facts have been established by the prosecution against the accused – Adeniji v. State (supra) at 398, per Katsina-Alu, JSC  and at p. 402, per Iguh, JSC. See also Emeka v. State (2001) 14 NWLR (Pt. 734) 666 at 680.

If therefore an accused person, who is misguided, basking in his rights from the principles that the onus of proof is always on the  prosecution, leaves unchallenged and uncontroverted, cogent, compelling and damning evidence placed before the court, the trial  court may have no option except to exercise its liberty to accept and treat the evidence as credible. See Okeke v. State (2001) 2 NWLR  (Pt.697) 397. The case of Odulaja v. Haddad (1973) 11 SC 357; (1973) 1 All NLR 171, Ifeanyichukwu Osondu and Co. Ltd. v. Akhigbe  (1999) 11 NWLR (Pt. 625) 1 at 19, though civil cases convey the principles in a plethora of cases that admissible evidence which  remains uncontroverted becomes part of what will lead to a decision and unless such evidence is palpably incredible, the court is  not only entitled, but has no reason to accept it.
The onus of proof beyond reasonable doubt stamped on the prosecution by law, has been examined by the courts. They have  determined the extent of the duty on the prosecution and held that the “doubt” must be such doubt as arisen from some evidence  before the court and not from the imagination and any conjecture or inference not supported by evidence. See Olalekan v. State  (2001) 18 NWLR (Pt. 746) 793 SC 822 para. G (Per Onu, JSC). See also Kalu v. The State (1988) 4 NWLR (Pt. 90) 503, Iortim v. State  (1997) 2 NWLR (Pt. 490) 711.
Parties are agreed on the applicable principle of burden of proof and proof beyond reasonable doubt placed on the prosecution, set  out above.
Of the six prosecution witnesses, the crucial evidence came from PW1, PW2 and PW6. The evidence of PW1 and PW6 will be set out  hereunder:
Here is what PW1 said in his testimony about the deceased:
“…when she came back about 9pm, my master started to talk to her and on the next Saturday … in the night, when I was sleeping I  heard the wife of my master, Aminatu Babawuro, crying. Later on the cry stopped then my master Babawuro called me. When I came  out I moved inside the parlour of his house. I saw the dead body of his wife, Aminatu Babawuro. The accused has already dug a  grave inside the yard, the accused asked me to help him carry the dead body of his said wife. I helped him in taking the said body  and put same inside the grave. He told me that I should not tell anybody that he had killed his wife. He said that if I told anyone,  whatever happened to me, I have myself to blame. He said to me that anybody who asked me about his wife I should tell him that  she had gone to the hospital and had not come back.
On the 2nd June, 1990, I was in Sabon Line, Jalingo, with the accused in his house. On that day there was one old woman, a relation  to the accused, who started to cook for him. About 6pm, accused left his dog and the dog went to the grave and started digging,  before accused came back home, the dog has reached the hand of a human being then Babawuro went to the Nigeria Police in  Jalingo and reported. A policeman came back with him and looked at the grave. The police went back. In the following morning more  policemen came to the accused’s house. The police dug the grave and found that the body was that of accused’s wife Aminatu…”
In cross-examination, he said:
“I saw blood in the parlour together with the body of the accused’s wife on that Saturday night. The accused did not tell the cause of  the death of the wife. The time interval the cry of the wife stopped and the time the accused called me would be about 30 (thirty)  minutes”.
PW1 is a form 4 student in Teachers College, Jalingo and the house boy of the respondent.
PW6 also testified thus:-
“I accompanied the police to the premises where I entered the premises (a private one) where I entered the premises. There was a  yard and a building therein. I was taken to a site of a corpse. I witnessed the examination of the body by the police, myself and an  assistant from the said General Hospital. The corpse was found about two (2) feet deep and the corpse was totally covered. I  examined the position of the body at the sites and when the body was brought out. The sex of the body was that of female. I  estimated the age of the deceased to be about 20 years. We could not weigh the body. She was naked. She was a fair complexioned  person with woven hair. No physical parts of the body were missing. I found uteral marks sign of pregnancy, which I estimated to be  about 16 (sixteen) weeks. The corpse was in an advanced stage of decomposition but was grossly intact. The skin was broken at  one spot on the neck. There was a lineal or straight wound which was about 5 (five) centimeters deep and 3cm of length. The edges  were of any pattern because of the advanced stage of decomposition. The position of the wound is on the right side of the neck. The  air ways were spared or untouched. There were great vessels which had injuries.
In my opinion the death was caused by severe blood loss (hemorrhage) from the said injury.”
Cause of death was unequivocally established and the burden of proof on the prosecution was adequately discharged as required in  Rex v. Abengowe (1936) 3 WACA 85, R v. Olederima (1940) 6 WACA 202 and Lori v. The State (supra).
What other inference as to who caused the death of the deceased is there in the face of the evidence on record other than that the  appellant killed her? None, is the answer, when all the foregoing is placed against the evidence of the defence at the trial. The  testimony of the accused who elected to testify on his own behalf and called no other evidence goes thus:-
” … at 9.00am I was to go to one village market … in Numan Local Government … called Dong. I left my house boy at home, Abubakar  … I did not return till about 7.00pm that same day. I asked Abubakar where is my wife? He told me she has gone to the hospital … I  left home to check her at the General Hospital, Jalingo. On my way, I met one friend Tijani, a staff of that hospital. He too had looked  for the wife but no trace as he had earlier called on Abubakar above mentioned. We went back to the hospital to check for her. We  came back.”
“I did not see her and I came home and went to bed.
On the following day as I was sitting in front of my house I wanted to go to Mutum-Biu where her parents are. I saw her uncle and I  told him the position of things about the wife. The uncle asked me to hold on. He told me he too would check with relations. I  continued to check for her.”
“On the third day, the uncle mentioned above, said he had received no information about her whereabout. Then I reported at the  Police Station and the Radio Station all in Jalingo. I came home. I travelled to Jada and Mayo-Belwa to check for her as I learnt that  her relations are there.
After about 19 days, my small dog I had in the house, started to dig a certain point within the compound. A certain old woman, who  was looking after the house informed me about the activities of the dog and I reported to the police in the night. The police asked me  to come back the following morning (7.00). I reported there. Three policemen were assigned to go with me including an ASP. At my  house, the ASP asked me to take one of the policemen to their office which I did on my motorcycle.
At the Police Station, I was asked to make a statement which I did. The police asked me to sit somewhere, until the policeman I had  known there before came, who told me that what they found in my compound was the dead body of my wife. I was detained. Later,  6pm, a L.G. vehicle came to the police station and conveyed me to the C.I.D. office in Yola. I saw my house boy, Abubakar, in the  vehicle and we were taken to Yola. I told the Yola Police the same thing.
Before I left home for the market, my relationship with my wife was good. On my return from Dong market, I did not see my wife dead  or alive.”
In cross-examination, all the accused said was as follows:-
“I returned from the market at about 8pm. I saw my neighbour when I returned from the hospital. I was finding that my wife was  nowhere to be found, I was in court, when PW1 Abubakar testified in this court in respect of this matter. I had a problem with that  Abubakar about 2 to 3 months preceding the event I have narrated. My wife did not come back that night.”
The foregoing is all there is to the defence of the accused in the court below against whom PW1 gave such clear and damaging  testimony. Placed against the uncontroverted evidence of the prosecution witnesses, particularly PW1, PW2 and PW6, what inference  could any reasonable person draw?
The decision of the learned trial Judge that mens rea or intent to kill was not established which dictated his findings that the  accused/respondent was not guilty of culpable homicide punishable with death under section 221(a) of the Penal Code but guilty  under section 220(b) of the Penal Code does not appear to be borne out by substantial reasons and by applicable legal authorities.  Here is an accused whom the same court below itself had decided, was responsible for the death of his wife. This was for good  reason, as set out in his judgment. Both the testimony of PW1 and PW6 in my view provide sufficient and substantial reason for  identifying the intention to kill and the killing. The intention to kill is clearly manifest from the nature of the instrument, (“a sharp  object”) testified to by PW6, the medical doctor, and the wound inflicted on the neck (a most delicate part of the body), manifest from  the testimony of PW6, and by what followed when PW1 saw the deceased in a pool of her blood in circumstances from which it is  inferable that the respondent was responsible for it. PW6 found deep wound caused on her neck with a sharp object and that it was  the cause of her death. The accused was the one, as uncontroverted evidence of PW1 shows, who called PW1 into his parlour on the  fateful night, after the deceased’s cries which PW1 was hearing ceased, requesting him to help him carry her corpse into a grave  already in existence when he was called. PW1 helped him as requested. He was warned by the accused not to tell.
I hold the view that in this case, intent to kill has been adequately established, just as the killing was. Legal authorities abound which  show that intent to kill can be ascertained or inferred from the nature of instrument and the wound inflicted and circumstantial  evidence. Ehiot v. The State (1993) 4 NWLR (Pt. 290) 644 at 663 – 664 and 671.
The learned trial Judge himself had observed in his judgment thus:
“While there were “few discrepancies in the evidence of PW1 in respect of his seeing the dead body of the deceased in the  accused’s sitting room, I have no doubt that he told the truth. I also believe his evidence that he helped the accused in putting his  wife’s body inside the grave”.
The learned trial Judge in regard to the discrepancy only referred to the date of the incident testified to by PW1 and effectively  resolved. There was no other.
The evidence of PW1 is so crucial, so clear and so damaging to the accused remains unchallenged. The authorities which I earlier  referred to firmly establish that the court is bound to use it unless it is palpably incredible. I see nothing whatsoever incredible about  the evidence. I should add that it is not in my view not even incredible that the accused did absolutely nothing to challenge or rebut it –  the reason being that he could not and did not dare.
The inference is obvious. The learned trial Judge had no reason to disbelieve the evidence.
That there was an existing grave when PW1 arrived at the parlour of the accused to answer him when the accused called him, is not  in doubt from the evidence. The accused did not deny it. Why should the trial court help him to wriggle out? When the accused  himself did not try in his testimony and cross-examination to challenge and rebut the evidence. This clearly does not tally with the  function of a court of justice.
It is significant that a piece of evidence such as that concerning the grave in the compound of the accused into which accused was  said to have asked PW1 to help him to put the corpse of his wife did not move him to challenge it. PW1 said he had heard crying and  about 30 minutes after the crying ceased, he was called by the accused, to do that hair-raising chore of helping him to put the corpse  in the grave. The accused did not deny any of it or even mention any thing concerning it, either in exhs. A and A1, his cautioned  statement or in his evidence in court. The court below, on the authorities ought to accept and use the evidence and gave no legal  reason for not doing so. It was clearly in error therefore, when it decided that: if that evidence was believed, one would have inferred  that the accused had the intention to cause the death of his wife. Why not? That was the unchallenged evidence. He was in grave  error when he veeredoff course to state that he did not believe PW1 on the issue of the pre-existence of the grave “before he  apparently stabbed his wife”.
Let me add this. As it is clear from the evidence that the deceased died from bleeding from injuries on her neck caused with a sharp  instrument or object, it stands to reason that whoever caused the injury to so delicate a part of the body, the neck with such force that  death did occur must have intended the victim dead. For he must have intended the natural and probable consequences of his act.  He is guilty of homicide punishable with death. See R v. Nungu (1953) 14 WACA 379, R  v. Adi (1955) 15 WACA 6.
The foregoing is a presumption which is rebuttable or to be negatived by evidence only.
It is to be noted that proof of “intention” does not connote that a previous thought or determination to commit the offence must of  necessity be proved. Intention can be inferred. For the law presumes that a person intends the natural consequences of his act. In  determining whether the accused could be held to have known or had reason to know that death was the natural or probable  consequence of his action, the weapon, the amount of force applied and the part of the body affected are taken into account. The  State v. Abdulmumini Garba (1980) 1 NCR 358.
In this case before us, there can be no doubt that these matters when taken into account clearly reveal the intent to kill, manifest in  cutting the neck of this 20 year old pregnant girl. With the pool of blood in which the deceased was seen by PW1 and loss of blood  identified and sharp instrument, used highlighted by the doctor, PW6 as the caused of death, the amount of force applied is easily  identified. It is so much as caused instant death of the victim whose crying PW1 was hearing and about 30 minutes after the crying  stopped, he was invited by the accused to come and help him carry to a waiting grave in his enclosed compound, the body of the  deceased then lying in a pool of her own blood.
In summary, the intention to kill her or the mens rea of the killer is without doubt clearly proved, so also the cause and her death. One  thing I must state firmly is that the evidence before the court below and on record support and warrant a conviction under section  221(a) of the Penal Code.
There is no evidence to support the trial court’s finding. It is indeed, an error in law which calls for interference from this court. See  Rabiu v. The State (1980) 8-11 SC 130 at 172, Agbeyegbe v. I.G. Police (1955) 15 WACA 37.
The law is that if there was evidence before the trial Judge from which he could reasonably have come to the conclusion to which he  did, the verdict must stand. R v. Omisade (1964) NMLR 67 also in (1964) All NLR 233, R v. The State (1976) 11 SC 81.
If it is a verdict, which no reasonable jury could have come to, and I believe taking into account the evidence before the trial court, the  Court of Appeal may reverse it – see R v. Olagunju (1961) 1 SCNLR 32; (1961) All NLR 21. It is in my view the case, in this matter.
I see nothing obviously or even inherently improbable about the evidence of PW1, to warrant the speculation gone into by the trial  court. In taking it upon himself to raise points which could cause doubts as to the credibility of the witness and proceed to use them,  the trial court has only given cause for a miscarriage of justice fatal to the prosecution.
Although, it is not the function of the Court of Appeal to retry the case based on the record of proceedings before it, yet it has a duty not  to allow a verdict which is entirely unwarranted as herein to stand.
I will now deal with the issue of onus of proof shifting, raised by the respondent.
I am of the firm view that the onus had shifted to the accused, who ought to lead evidence to rebut so cogent, so compelling and  damaging an evidence from prosecution witnesses against him. See Adeniji v. State (supra), also Emeka v. State (supra) and other  authorities. He did not lead that evidence. All that he said that may be relevant in challenging the evidence was that he had some  problem with PW1, his house boy 2 – 3 months before the events.
He did not tell the court the problem or its nature. It must be known that where evidence led is true, the fact that the witness has or  might have a grudge does not weaken the validity of the evidence. In particular, evidence which is clear and unassailable, and  remains unrebutted as in this case, must, in my view, stand and the court is obliged to use it, notwithstanding that the witness is  shown to be a bitter enemy of the accused. See Oteki v. The State (1986) 4 SC 222 at 251.
Over with this error on the part of the trial court, other material evidence was tendered by the prosecution which the learned trial  Judge accepted which should earn the accused conviction as charged. After he carefully evaluated the testimonies of PW1 and PW6,  he made these findings:-
“I find that the accused caused the injury on the neck of the deceased, which injury caused her death.”
The accused did not appeal against this. It stands. On the issue raised for the respondent that the sharp object or instrument used  was not tendered, the short answer is that it is not always that failure to tender such an object is fatal to the case of the prosecution.  There is sufficient evidence in the testimony of PW1 and PW6 from which inferences can be drawn. See The state v. Ironsi (supra).
The learned trial Judge on this issue of knife or other weapon not produced, believed and accepted the evidence of PW6 and from  the evidence of PW1 that “the accused caused the injury to the neck which caused her death”.
With respect to the learned trial Judge, I believe he was merely equivocating, when he veered round inspite of his above set out  findings. One would ask how the court would not be certain that “death was the probable result of that stabbing”, when in the first  place, the victim was dead, PW6 the doctor said she died of loss of blood from the only stab wound on the right side of her neck  caused by a sharp object and PW1 saw her in a pool of her blood when the accused called him to help him bury her? Clearly, the  court can ascertain the cause of death from all the circumstances of the case. If he cannot, this court can, from the evidence on  record.
As earlier stated, on the authorities, circumstantial evidence can ground a charge of murder, since it is not in all cases direct  evidence is available. It is apt in this case. The findings must arise from both the direct evidence of the witnesses and circumstantial  evidence. It stands to reason to infer and conclude that the respondent caused the death of the wife with a sharp object when the  testimony of PW1, PW5 and PW6 are considered together. Here is a man, who invited PW1 his house boy in the night to help him  carry to a grave the corpse of his wife, whom about 30 minutes before, the house boy heard her crying stop. The boy immediately  saw the wife lying in a pool of her own blood in the respondent’s parlour. From the evidence, it is inferable that the grave was already  there, in his compound, where he lived with PW1 and the wife. The grave received the corpse, which the house boy, PW1, helped this  man the accused to carry and put into it. The grave was in his enclosed compound. It was this same respondent who told the police  after the body was exhumed from the same grave when he was asked, that it was the body of his wife. (See the evidence of PW5, the  police corporal).
In simple language and without mincing words, I see no other inference to be drawn from the sequence of events, the testimony of  the witnesses and the conduct of the respondent other than that drawn by the court, that he killed his wife, by causing injury to her  neck. He left her lying in the pool of blood, and the loss of blood from the injury on her neck caused her death.
It is significant that the over-whelming evidence of the witnesses, which he listened to in open court, was not contradicted at all. It  was never challenged by cross-examination. Where the facts accepted by the court calls for an explanation and none is forthcoming,  circumstantial evidence ought to be sufficient proof of guilt. See Igho v. The State (1978) 3 SC 87, Teteh Lawson v. The State (1975) 4  SC 115.
It is not the duty of the court to speculate on a possible defence for an accused person where there is no evidence before the court  suggesting such a defence. See Ojo v. The State (1972) 12 SC 147 at 150, Paul Oboh v. The State (1987) 1 NWLR (Pt. 47) 26, (1987)  1 SC 118 at 124 (per Karibi-Whyte, JSC).
If an accused has a defence, he is obliged to proffer it before the court. For the prosecution, its own duty is to prove its case beyond  reasonable doubt.
A case could turn on circumstantial evidence, where the circumstances point irresistably to the guilt of the accused – Ukora v. The  State (1977) SC 167, R v. Tepper (1952) AC 480, David Aganmwanyi v. A.-G., Bendel State (1987) 1 NWLR (Pt. 47) 26; (1987) 1 SC  77.
In this case, on the records there is such direct and strong, convincing circumstantial evidence which point irresistably to the  accused’s guilt. What was he doing with the corpse of his wife in a pool of her own blood in his own parlour, or her corpse buried in a  grave in his compound? PW1 testified to facts which undoubtedly pinned the accused to the injury on and death of his wife. What was  his reaction – None. Section 149 of the Evidence Act permits, the court to presume or draw inferences from facts which it thinks are  likely, bearing in mind the course of natural events etc.
The section provides thus:-
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of  natural events, human conduct, and public and private business, in relation to the facts of the particular case.”
The court below only drew such inferences as the law permits. The learned trial Judge stated that he believed that the accused  reported the matter of his wife missing to the police but posed the question, “but was the accused’s wife actually missing?” Then he  considered the evidence and conceded that she was not. He added,
“The accused testified, but said nothing about the grave in his compound. I have looked at the statement exh. A that he made to the  police, he said nothing about the grave. Could there be a grave in his compound and the accused would not notice it for two or three  weeks? Certainly, the accused knew that his wife was not missing.
I have considered the whole evidence and the accused’s defence of partial alibi and I conclude that that defence is bogus”.
It was his finding that the accused set up the defence to hide what took place in his house that fateful night as described vividly by  PW1. The trial court declared, “I reject the accused’s evidence that he knew nothing about the killing of his wife”.
On the evidence of PW1, he found that while there were a few discrepancies regarding his seeing the dead body of accused’s wife in  accused’s sitting room, he concluded thus:-
“I have no doubt in my mind, that he told the truth. I also believe his evidence that he helped the accused in putting his wife’s body  inside the grave”. The trial court also identified that although the accused said under cross-examination that he had a problem with  PW1, 2 or 3 months before the event, the nature was not disclosed. He concluded:”
I do not agree that there was any problem”.
On the nature of injury suffered by the deceased and who caused it, the court below accepted the evidence of PW6 and PW1. He  said, “I find that the accused caused the injury to the neck of the deceased, which injury caused her death”.
On whether culpable homicide was proved, the trial court set out the definition in section 220 of the Penal Code, identified the  ingredients of the offence, considered whether the accused caused the death, considering the testimony of PW1. He found that the  accused had something to do with the death of the wife. He called PW1 to come and he helped him to bury the deceased. Although,  PW1 did not witness the actual killing, the court decided that it was entitled “to draw such inferences from the evidence as appear  proper, taking into account the nature of the weapon used, the number of injuries and whether or not the blows were inflicted on vital  part of the body…”
It is my humble view that to the foregoing extent, the findings of the court below could not be assailed.
Let me say a few more words concerning other issues raised by the respondent in his brief.
On the respondent’s grouse that there is nothing to show that the death of the deceased was caused by the accused. The answer is  that there are the unchallenged, unrebutted evidence of the prosecution witnesses and the defence of the accused as weak as it was  and which in my view the learned trial Judge rightly described as “bogus”, considered together with all the surrounding  circumstances of the case, lead to no other conclusion than that the accused was the killer. The court below found so, and rightly too.
Although, I do agree with learned Counsel for the respondent and it is indeed, the law that proof that an accused is the killer in a  charge of homicide must never be left to conjecture or speculation, but must be proved beyond reasonable doubt, yet, I see no such  conjecture or speculation by the trial Judge in this matter as determined in Ahmed v. The State (1999) 7 NWLR (Pt. 612) 641, 672;  Nasiru v. The State (1999) 2 NWLR (Pt. 589) 87 at 98 and 102. In Ahmed v. The State (supra), the Supreme Court did find that the  conclusion of the trial court in that case which was affirmed by the Court of Appeal on what transpired in the compound where the  commission of the offence in question took place, was highly speculative.
That of course, cannot be said of the clear, unchallenged evidence of the prosecution witnesses, PW1 and PW6. I think that the  evidence is incapable of any other reasonable conclusion than that the respondent killed his wife. It cannot be described as being in  the realm of conjecture and speculation as argued for the respondent.
The learned trial Judge, rightly in my view made findings that the mitigating circumstances provided under section 222 of the Penal  Code did not avail the accused, that the story of the accused about his missing wife and alibi “is bogus” and rejected it. Death and  the cause of death were established and accepted by the court below.
Only this issue of mens rea raised by the court and the conviction of the accused for the offence as charged under section 221 (a) of  the Penal Code. I have said that mens rea can be inferred from the circumstances of this case. The evidence is cogent and  unrebutted leading to the firm belief that the accused caused the death of his wife intentionally. It seems to me that counsel for the  respondent in his submission was labouring under a misapprehension, when he submitted in the face of the other evidence that  assuming, but not conceding that PW1 actually saw the body in the parlour, does not show that her death was caused by the  accused.
That the prosecution might prove its case beyond reasonable doubt, does not mean beyond any shadow of doubt – See Oteki v. A.-G.,  Bendel State (1996) 2 NWLR (Pt. 24) 648. It is only when there are inconsistencies in the prosecution’s evidence such that it casts  reasonable doubt on the guilt of the accused that such an accused can be given the benefit of the doubt – see Onubogu v. Queen  (1974) 9 SC 1. Although, the respondent kept harping on the onus of proof beyond reasonable doubt, no such doubt has amply been  raised, and this, where the facts accepted by the court, supporting the case of the prosecution called for explanation from the  accused and none was forthcoming. See Peter Igho v. State (1978) 11 NSCC 166, per Eso, JSC. The submission for the respondent  that there was a complete failure on the part of the prosecution in proving his case beyond all reasonable doubt is therefore entirely  baseless and clearly misconceived.
This issue is determined in the light of the foregoing in favour of the appellant. The corresponding grounds of appeal, grounds 1 and  4 succeed.
Issue B of the appellant, arising from grounds 2 and 3 of the grounds of appeal complains that the learned trial Judge veered-off  course and acted on speculations and possibilities, rather than on concrete evidence before arriving at the conclusion that the  accused was not guilty of the offence of homicide punishable with death, charged under section 221(a) punishable with death, but  guilty of culpable homicide simpliciter under section 220(b), punishable under section 224 of the Penal Code, despite its finding that  none of the exceptions under section 222 of the Code applied to the accused. As earlier stated, the respondent did not raise any  issue on these two grounds of appeal. He did not adopt the appellant’s issues and made just general submissions in his brief of  argument. As earlier stated, I will salvage from his argument on issue No.1 those arguments which deal with the issues herein and  the points raised in the appellant’s submissions for the sake of justice.
The appellant’s counsel had argued as follows:-
That it is not the function of a court of law to speculate on possibilities not supported by evidence. Findings of fact and conclusion  should be based on evidence not on speculation and possibilities. Counsel then submitted that the learned trial Judge was not  correct in law, when he veered-off course evidence before him in drawing the conclusion that the accused was not guilty of the  offence charged but guilty of the offence under section 220(b) of the Penal Code. He misdirected himself in law. He was in breach of  section 208 of the Criminal Procedure Code.
The prosecution had proved the guilt of the accused beyond reasonable doubt to get him convicted on the charge as laid. Mens rea,  or the intention to kill was inferable from the overwhelming direct and circumstantial evidence from PW1 and PW6 which remained  unchallenged and uncontroverted.
The court itself had rightly rejected the defence of alibi and held that none of the exceptions under section 222 of the Penal Code  applied to the accused in mitigation of the penalty for the offence charged; the court ought to have found the accused guilty as  charged and sentenced him in accordance with the applicable law. Its not doing so occasioned a miscarriage of justice. Reliance is  placed on Akpabio v. State (1994) 7 NWLR (Pt. 357) 635; (1994) 7 – 8 SCNJ 429 at 464-465.
I believe that the learned trial Judge was only speculating and equivocating and not applying the evidence before him or the  applicable law when at pages 49-50 of the records he stated thus:
“Next for consideration is this, did the accused know or had reason to know that death would be a probable and not a likely  consequence of his act or any bodily injury which his act is intended to cause? What then must be decided is whether on the  evidence the accused knew or had reason to know that the blow he struck on the neck of the deceased was not only likely to cause  death, but probably to cause death …
If the act is known to the accused person as “likely” within the definition to cause death, he is guilty of culpable homicide not  punishable with death – see Penal Code, section 220(b). If death is known to the accused to be the probable result, the is guilty of  culpable homicide punishable with death, whether death is ‘likely’ or ‘probable’ is a question of degree … If a weapon is used the  question will generally resolve itself by a consideration of the weapon used, the part of the deceased’s body where it was struck and  the amount of force used”.
The learned trial Judge continued in what looks to me like some illogical and then logical “thinking aloud” –
“As I have observed earlier the weapon was not produced. The stab injury was on the neck and the amount of force used cannot be  determined. I have to decide that on the evidence I cannot be certain with the degree of certainty demanded by a criminal charge of  such seriousness that death was the probable result of that stabbing. On the other hand, that it was likely there can be no doubt at all  and in all the circumstances I cannot doubt that a man of accused’s intellect and background must have known it. The accused must  have known that the blow or the stab was likely to cause death”.
I must state that what findings the learned trial Judge made before and after the foregoing clearly manifest the illogicality of the  thinking and the error in the conclusions which he came to and which are indeed “non-sequitur”.
Before the above statement, the learned trial Judge had answered ‘yes’ to the question whether the accused had caused the death.  He relied on the evidence of PW1. He had found that the injury was on the neck, relying on the evidence of the doctor, PW6 and that  “the neck is an important part of the body”. After this, the learned trial Judge citing an Indian case, which to my mind could have  helped him steady his thoughts, veered-off into what did not follow from the decision in that case. In the case, it was held that when  death was caused instantaneously by a blow on the neck with a formidable weapon cutting through the windpipe etc, intention to  cause death was proved.
Rather than following up on his earlier findings and drawing the obvious inference from the testimony of PW1 and PW6 that the  Edeceased died instantaneously, he did not. Recall that PW1 heard the crying. Then about 30 minutes after the crying stopped the  accused called him to his parlour, where he saw the body of the wife in a pool of blood. The accused asked him to help him carry her  to a grave which he did. The accused warned him not to tell that he killed his wife otherwise whatever happened to him, he would  have himself to blame.
Recall also that PW6 the doctor testified that a deep wound caused by a sharp object … on the right side of her neck and loss of  blood therefrom caused her death. He also testified that:
“There were great vessels which had injuries … death was used by severe blood loss (hemorrhage) from the said injury”.
None of the evidence of PW1 or PW6 was denied, challenged or rebutted by the accused.
Yet, hear the reason why the trial Judge who heard evidence of the stab on the neck would not follow the Indian case to find the  intention to cause death – He said,
“In the case before me, death was caused instantaneously by a stabbing on the neck. The weapon whether formidable or not was  not produced. The windpipe, veins and the arteries were not reported by the medical officer”.
He then concluded thus:-
“In the circumstances of this case, I hold that intention to cause death has not been proved.”
I hold the view, that the learned trial Judge was in error in his view of the evidence – and application of the Indian case. That the injury  in the present case is on the neck, that the great vessels had injuries and that in the Indian case, there were injuries reported on the  windpipe, veins etc., or that the doctor PW6 in this case did not report on the wind pipe etc., ought not to make the difference, causing  the trial Judge to decide that intention to cause death was not proved as in the Indian case. I am of the firm view that intention to  cause death was proved, discernible from the evidence and all the circumstances of the case as previously and clearly shown under  issue A. It is reiterated with respect that the reasoning and finding of the learned trial Judge is illogically and not borne out by the  evidence before him. This is even more implicit in what I would refer to as the “equivocation” on pages 49-50 reproduced above. The  learned trial Judge then said he had considered the exceptions under section 222 of the Penal Code and held that none of them  applied. He ought thereafter to have found the charge in section 221(a) to which 222 forms exception definitely proved. One would  ask where and from what evidence or legal proposition then did he derive his conclusion not to “find the accused guilty of the offence  charged but guilty of culpable homicide under section 220(b) of the Penal Code punishable under section 224 of the Code.”
There is in my humble view, no evidence and no legal principles supporting his determination of the matter.
The law is settled that every Judge has a duty to direct himself correctly on every aspect of a case before him, having due regard to  the evidence adduced by witnesses who testified before him. A trial Judge would be said to have misdirected himself in law, should  he fail to do so and fail to avail himself of the right decision. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 162 per  Nnaemeka-Agu, JSC.
Determination of cases is based on law and evidence, any determination based on sentiment, or speculation rather than evidence  and the law does not ever meet the legal criteria for justice and the ends of justice.A court must therefore not permit itself to speculate. See Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367 at 407 SC (Per Uwaifo,  JSC), Oladele v. State (1993) 1 NWLR (Pt.269) 294, Ahmed v. State (2001) 18 NWLR (Pt. 746) 622.
Considering the provisions in sections 221 and 222 of the Penal Code, in relation to the evidence before the court below, a person  who causes such injury as the one testified to by the prosecution witnesses particularly PW6 in the circumstances described in  PW1’s evidence in court must be seen or deemed by any reasonable person to have had the intention to cause the death of this  young 20 year old, 16 month pregnant girl. And what about the grave, the waiting grave, into which the accused got her buried  instantly with the help of PW1 and the warning and threat not to tell?
Section 222 of the Penal Code sets out what constitute those defences which the law recognises as open to an accused charged  with homicide punishable with death under section 221 of the Penal Code.
I will set out both sections:
Section 221
“Except in the circumstances mentioned in section 222 culpable homicide shall be punished with death –
(a) If the act by which death is caused is done with the intention of causing death; or
(b) If the doer of the act knew or had reason to know that death would be the probable and not only likely consequences of the act or  of any bodily injury which the act was intended to cause”.
I should think that whether death was the probable or likely consequence of the act or of any bodily injury is a question of fact  derivable from the evidence before the court. In this case, the evidence of PW1 and PW6 provide adequately for this as will be shown  presently. Nothing came from the accused in rebuttal.
Section 222:
“222(1) Culpable homicide is not punishable with death, if the offender whilst deprived of the power of self control by grave and  sudden provocation causes the death of the person, who gave the provocation or causes the death of any other person by mistake or  accident.
(2) Culpable homicide is not punishable with death if the offender, in the exercise in good faith of the right of private defence of  person or property, exceeds the power given to him by law and causes the death of the person against whom, he is exercising such  right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such  defence.
(3) Culpable homicide is not punishable with death if the offender, being a public servant acting for the advancement of public justice  or being a person aiding a public servant so acting exceeds the powers given to him by law and causes death by doing an act, which  he in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant or for assisting such  public servant in the due discharge of such duty and without ill-will towards the person whose death is caused.
(4) Culpable homicide is not punishable with death, if it is committed without premeditation in a sudden fight in the heat of passion  upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.
(5) Culpable homicide is not punishable with death, when the person whose death is caused, being above the age of eighteen  years, suffers death or takes the risk of death with his own consent.
(6) Culpable homicide is not punishable with death, where a woman intentionally causes the death of her child being a child under  the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having  fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.
(7) Culpable homicide is not punishable with death, when a person causes the death of another by doing any rash or negligent act.”
The learned trial Judge having determined that after his findings that these exceptions did not avail the accused, I see no other  provision of the law or evidence before the court to propel the court to the conclusions it reached.
It is also trite law that where the trial court has failed to appreciate, appraise and evaluate the evidence before it and as a result,  arrived at the wrong decision, that the Appeal Court may intervene, revisit the evidence and draw the appropriate inferences and  conclusions. See Woluchem v. Gudi (1981) 5 SC 291, also reported in (1991) NSCC 214, Balogun v.Agboola (1974) 1 All NLR (Pt. 2)  66, (1974) 10 SC 111.
In particular, if the issue on appeal is a question of inference to be drawn from established facts or evidence on record which does  not depend on credibility of witnesses and on their demeanour in he trial court, or that that court’s impression of them, the appellate  court usually would regard itself as in as good a position as the trial court to evaluate the evidence and to draw relevant inferences  from the proved facts on record. See Okafor v. Idigo III (1984) 1 SCNLR 481; (1984) 5 SC 1 at 36, Registered Trustees of Apostolic  Faith Mission v. James (1987) 3 NWLR (Pt. 61) 556 at 567, Nnorodim v. Ezeani (2001) 5 NWLR (Pt. 706) 203 at 210.
This is an appropriate case for this court to apply these principles.
We bear in mind always and in this matter that fundamentally, findings of fact and conclusions of the court should be based on  evidence adduced before the court, never on speculations.
It is upon the application of the foregoing principles and the law, that one must rely to come to a just decision in this matter.
The court below has powers under sections 217 and 218 of the Criminal Procedure Code, to convict the accused of a lesser offence,  than the one charged. See Ogu v. The Queen 1963, 2 SCNLR 74; (1963) 1 All NLR 234, where the Supreme Court substituted a  conviction for obtaining by false pretences with one for theft. See also Garba Zonkwa v. Police (1968) NMLR 11.Yet, it would appear to me that this power of substitution is not arbitrary but subject to certain principles expounded by the courts.
In order to lawfully substitute, the lesser offence must be a combination of some of several particulars of the offence charged and  together with the evidence establishing them, are such that they can be carved out of the offence charged with the relevant evidence  in place. See Queen v. Agumadu (1963) 1 SCNLR 379. In effect, if all the particulars of the offence charged have been present and  proved by the prosecution, then substitution of a lesser offence is not tenable.
The prosecution in the present matter had proved all the particulars of the offence charged as shown in this judgment.
There was therefore no basis for the substitution of the lesser offence.
Of further profound importance is the finding of the court below itself that after he considered the exceptions under section 222 of the  Penal Code, that none of the subsections applies. These are defences available to the accused, cognisant to the law in a charge of  culpable homicide punishable with death, such as the respondent was charged under section 220(a) of the Penal Code. An accused  person who is able to reap the benefit of any of the seven subsections of section 222 could, by law, be either discharged or have the  charge reduced to the lesser offence of homicide not punishable with death or manslaughter.
As the accused/respondent herein has not come into the foregoing privileges, and the higher offence for which he was charged has  been proved, he must reap the verdict and sentence assigned to the offence for which he was charged.
As far as one is concerned, the evidence against the accused is overwhelming, not challenged or controverted and clearly grounds  the charge. The doubt which the trial court purports to exist is purely conjured up by it without recourse to the law. The thought is  riddled with error. I have come to the conclusion that it cannot stand.
I would therefore, determine this issue in favour of the appellant and so grounds 2 and 3 of the grounds of appeal succeed.
The end result of this main appeal will await the decision of the cross-appeal which raises an issue that seeks to nullify the whole  proceedings and the judgment of the court below.
I will now consider the cross-appeal addressed by the cross-appellant in his issue No.2.
This complaint took its root from what the learned trial Judge stated in his judgment at page 40 lines 20-21 of the record of  proceedings, when he tried to explain his delay in delivering the judgment after parties closed their case. He said:
“The judgment was slightly delayed because of my transfer or deployment from Taraba to Adamawa.”
Background information relevant to this matter which is not in dispute, is that in 1991, one of the Nigerian States known as Gongola  State, was divided into two States, namely Taraba and Adamawa.
The charge, GGSJ/10c/90 against the cross-appellant had been brought and being tried by Oluoti, J., at the Jalingo Judicial Division  of the then Gongola State. Jalingo was the capital of Gongola State. It remained that of Taraba State after the creation of the new  state.
The learned trial Judge, Oluoti, J., was later, on a date not shown on the records and to which the parties herein have not drawn our  attention or referred to in their submissions, transferred to Adamawa State. He continued with the hearing of the matter and  concluded the hearing.
Final address was waived by counsel for the parties. As the records before us show, this was on 21/3/95, and on that date, judgment  was reserved for 11/5/95, but was later delivered on 24/11/95.
Learned Counsel for the cross-appellant has now raised two issues of law. Under the first which he titled “Territorial Jurisdiction”, he  argues that with the subsequent transfer of the learned trial Judge to Adamawa State, he ceased to have jurisdiction over the charge  in Taraba State, not then being a Judge of the High Court of Taraba State sitting in Jalingo. Citing Bello v. Usman (1999) 4 NWLR  (Pt.599) 389 at 389 and Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259, to show that where a court lacks jurisdiction in a matter,  subsequent proceedings no matter how ably conducted will be a nullity, counsel urged us to hold that the entire proceedings in the  court below is a nullity.
In reply, learned Counsel for the cross-respondent cited section 6 of the States (Creation and Transitional) Provisions Decree No. 41  of 1991, to show that the cross-appellant was in error in making the foregoing submissions. For he did not state the date of the  Judge’s deployment, and, by virtue of the Decree, the learned trial Judge had the territorial jurisdiction to continue with the  proceedings after his deployment to Adamawa State. He relied on the case of Augusta Chime & 4 Ors. v. Moses Chime & 4 Ors.  (2001) 3 NWLR (Pt. 701) 527; (2001) 1 SC (Pt. 11) 1 at 13 lines 5-30.
Counsel pointed out that no miscarriage of justice has been alleged by the cross-appellant. He urged this court to hold that section 6  of Decree 41 (supra) nullifies every adverse effect of the deployment of the learned trial Judge.
The issue in this appeal once more brings to the fore, one of the constitutional fall-outs and challenges from the ever-changing legal  and geographical status of the various components and constituents of this great nation of Nigeria. To meet these challenges, some  statutes have from time to time been put in place. One such statute is Decree 41 of 1991 (supra), cited by learned Counsel for the  cross-respondent. It was enacted to meet issues arising from the creation of states and applies throughout those States created  and/or affected. Section 6 of Decree 41, known as the States (Creation and Transitional) Provisions Decree, provides thus:
“Any proceedings pending before any court of a State immediately before the commencement of this Decree may after  commencement be continued before that court and shall not adversely be affected by the provisions of this Decree.”
The words of the foregoing provision are clear and unambiguous. The provision confers on a Judge or court in a State jurisdiction to  continue to hear any case pending before it immediately before the Decree came into force. From the facts of this case, there is no  doubt that the charge was pending before Oluoti, J., before Decree 41 came into force. He was vested with jurisdiction to continue  with the hearing of the matter.
The decision of the Supreme Court in Chime v. Chime (supra), also reported in (2001) 3 NWLR (Pt. 701) 527 particularly at 552 puts  this matter to rest, when it interpreted the application of section 6 of Decree 41 in circumstances similar to those in this matter. In that  case, a matter was pending in a court presided over by Ubaezuonu, J, then in old Anambra State with its capital in Enugu. From  Anambra State, two States, Enugu State and Anambra State were carved out also in 1991. The learned trial Judge, Ubaezuonu, J.,  (as he then was) deployed to new Anambra State (with the capital at Awka) proceeded to determine the suit which had been pending  before him before the creation of the new States. The question whether the court in new Anambra State could continue to entertain  the suit was answered in the positive by virtue of section 6 (supra).
This is what the Apex Court stated, (per Iguh, JSC) at p. 552:
“…Ubaezuonu, .J, as he then was, before whom the case was pending before the commencement of the relevant Decree was vested  with ample jurisdiction to continue with the hearing of the suit in his court after the commencement of the Decree. I entirely agree with  the submission of learned Counsel for the respondents, Chief Ugolo, that if it was intendment of section 5 of Decree No. 41 of 1991,  that pending cases shall be tried de novo by another Judge of Enugu State origin, the expression that the trial of such cases may,  after the commencement of the Decree, “be continued before that court and shall not be adversely affected by the provisions of this  Decree” should not have been used. This is because, the hearing of a part-heard case taken over by another Judge is not “continued  before the new Judge” but shall be started de novo by such new Judge in accordance with the basic principles of our law. It is my  view, therefore, that the hearing of the present suit which was pending before Ubaezuonu, J., as he then was, immediately before the  commencement of Decree No. 41 of 1991, may after such commencement be continued before that court, quite rightly, pursuant to  the provisions of section 6 of that Decree.”
Mr. Igbokwe, learned Counsel for the cross-appellant sought to distinguish this case from Chime v. Chime (supra). I find no such  distinguishing features relevant hereto.
In the light of the foregoing, it is the decision of this court that Oluoti, J, was vested with jurisdiction and the proceedings are not a  nullity.
The second arm of the cross-appellant’s submission on his lone issue relates to the date of the judgment vis-a-vis the conclusion of  hearing earlier pointed out. He titles this in his brief as “non- compliance” with section 258(1) of the 1979 Constitution.
Learned Counsel for the cross-appellant referred to the case of Ogundele v. Fasu (1999) 12 NWLR (Pt. 632) 662 at 676 and 689,  where it was decided that a judgment must be delivered not later than 3 months after conclusion of evidence and final addresses,  otherwise, the judgment must be treated as a nullity where the court is satisfied that the party complaining of non-compliance has  suffered, by reason thereof, a miscarriage of justice.
He added that from the record of proceedings, it was clear that hearing in the case and address were concluded on 21st March,  1995 and judgment delivered on 24th November, 1995, according to him over one year from the date parties closed their case. (Let  me stop here briefly to state that from 21/3/95 to 24/11/95 is 8 months, not over one year as stated for the cross-appellant).
Be that as it may, learned Counsel for the cross-appellant then submitted that the question which calls for an answer is whether the  accused person suffered miscarriage of justice by reason of the noncompliance with the law. In my view, this is the correct issue in  law. His submission on this is that the time lag between the conclusion of hearing and date of the judgment was too long, making  the trial Judge loose touch with the evidence before him and the demeanour of the witnesses while testifying. He pointed out on  page 50 line 11, 47 line 12, 47 line 34, page 48 line 9 findings leading to such miscarriage of justice. He then submitted that the  finding of the court that the accused stabbed the deceased without any evidence in support or any weapon tendered is a conjecture  of the court not based on any evidence, thus occasioning a miscarriage of justice.
The cross-respondent treated this matter in his issue B, distilled from ground 2 of the cross-appeal. His submission is that it must  be answered in the negative. In his view, the judgment delivered 8 months after final address did not occasion any miscarriage of  justice and was not a nullity and the cross-appellant ought to have been convicted under section 221(a) of the Penal Code as  charged. For, the evidence of PW1 the principal prosecution witness unequivocally pinned him to the scene of the crime and with the  murder, referring to page 17 lines 5-20 of the records.
Learned Counsel pointed out that that evidence remained unshaken and uncontradicted, under cross-examination, and that the  learned trial Judge’s findings show that he believed PW1 inspite of “a few discrepancies” in his evidence showing that he saw the  dead body of the wife in his sitting room and that he helped him to put it in the grave, and unequivocally, that the cross-appellant  killed his wife.
Learned Counsel argued that although the sharp object used was not tendered by the prosecution there was strong circumstantial  evidence to infer that the accused had the intention to kill his wife referring to Akinfe v. The State (1988) 3 NWLR (Pt. 85) 729, The  State v. Ironsi (1969) 1 NMLR 20. Counsel further submitted that there was sufficient evidence of the object used and the fact that it  was not tendered did not render the case of the prosecution unreliable – Nkuwem Miri v. The State (1968) All NLR 56 at 59-60.
Counsel contended that the learned trial Judge having believed the uncontroverted evidence of PW1 and PW6 as to who inflicted the  injury culminating in her death, he should have convicted him under section 220(a) of the Penal Code.
Significantly, counsel expressed the view that the 8 months delay in delivering the judgment caused the Judge to proceed on a  voyage of speculations culminating, in his conviction of the accused under section 220(b) even though the trial court had found that  the exceptions in section 222 did not apply and he had rejected the accused’s defence of alibi as a sham. The State v. Patrick  Njovens (1973) NMLR 93 at 95 and Ikemson v. The State (1989) 3 NWLR (Pt.110) 455; (1989) 6 SCNJ 54 at 66, were cited to support  the proposition that if the prosecution adduced sufficient and accepted evidence to fix the accused at the scene of the crime at the  material time of the commission of the offence, his alibi is logically and physically demolished.
Learned Counsel argued in conclusion that this occasioned a serious error in law and a miscarriage of justice against the  cross-respondent, not against the cross-appellant and where, by virtue of section 258(4) of the 1979 Constitution (as amended), no  miscarriage of justice is suffered by a party complaining of such non-compliance, the judgment cannot be set aside.
I have considered the submission of counsel for both parties, and noted that judgment was delivered on 24/11/95. Time begins to  run for the 3 months required under section 258(1) of the 1979 Constitution for delivery of judgment from the date the court adjourns  for judgment. See Igwe v. Kalu (2002) 5 NWLR (Pt. 761) 678. In this case, the court below adjourned for judgment on 21/3/95.  Judgment was given 8 months later instead of 3 months. That there was delay in the delivery of the judgment which is in breach of  section 258(1) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Act, 1990, is therefore without  doubt. What the effect is, is the matter in issue and would that nullify the judgment? Section 258(1) and (4) which are relevant in the  determination of this provides –
Section 258(1):”Every court established under this Constitution shall deliver its decision in writing not later than three months after the conclusion of  evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the  decision on the date of the delivered thereof. Section 258(4):
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of  this section, unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party  complaining of such non-compliance has suffered a miscarriage of justice by reason thereof.”
In the light of the provision in 258(4) above, the party complaining of non-compliance with section 258(1) is the cross-appellant  herein who made this a ground of his cross-appeal. It is now trite law that for a party to reap the benefit of section 258(4), that is for  the judgment complained of to be treated as a nullity, the appellate court has to be satisfied that the party complaining has suffered a  miscarriage of justice by reason of the delay in delivering the judgment. The burden is on that party to prove miscarriage of justice.  See Ogundele v. Fasu (1999) 12 NWLR (Pt. 632) 662 at 633, 676 & 689 SC. See also Walter v. Skyll (Nig.) Ltd. (2001) 3 NWLR (Pt.  701) 438, S.B.N. Ltd. v. S.I.O. Corporation (2001) 1 NWLR (Pt. 693) 194, Igwe v. Kalu (2002) 5 NWLR (Pt. 761) 678 SC; B.C.C. Plc. v.  Sky Insp. (Nig.) Ltd. (2002) 17 NWLR (Pt.795) 86.
The kind of miscarriage of justice required by law to be established by the party complaining in accordance with section 258(4)  (supra) is the type suffered by that party, by reason of the delay in the delivery of the judgment, by the trial court causing the Judge to  either forget or get mixed up with the evidence. It is not miscarriage of justice which may have arisen or occurred due to some  irregularities in the course of the proceedings. See Ogundele v. Fasu (1999) (supra) (per Ayoola, JSC).
As to the submission for the cross-appellant that the gap between the conclusion of hearing and date of judgment was too long,  making the trial Judge loose touch with the evidence and the demeanour of the witnesses, I hold the view that nothing has been  shown to establish this. The learned Counsel for the cross-appellant has only mounted a criticism on the findings of the learned trial  Judge, without showing how the time lag influenced the evidence enabling him to make the findings.
He referred to three excerpts in the judgment. There the trial court stated thus:
“(1) What inference may reasonably be drawn from the circumstances of this case? The court is entitled to draw such inferences  from the evidence as appear proper, taking into account the nature of the weapon used, the number of injuries …” (Page 47 line 12).
“(2) But I do not believe PW1 that accused had dug the grave before he apparently stabbed his wife.” (Page 47 line 12) but later went  on to state:
‘The nature of the weapon used cannot be considered in this case. No knife or other weapon was produced.”
“(3) The accused must have known that the blow or stab was likely to cause death” (Page 50 line 11).
I hold the view that these excerpts were taken out of con and that when all the evidence before the court below, shown on the  records are taken and considered together, there is nothing showing that the trial Judge lost touch with the evidence or the  demeanour of the witnesses or reveal miscarriage of justice to the cross-appellant.
It is not in every aspect in a criminal trial that direct evidence is available. Of necessity, inferences are often drawn. This is because of  the very nature and furtive behaviour of man when doing anything he knows to be wrong, particularly when committing an offence.  The courts know this and have over the years placed reliance on circumstantial evidence in appropriate cases to determine the guilt  or otherwise of persons charged with crimes, not less those charged with the offence of murder.
The Supreme Court in the case of Joseph Lori v. The State (1980) FNLR 475; (1980) 8 – 11 SC 81, had held that in murder cases  circumstantial evidence may sometimes be the best evidence. It is sometimes considered faultless. There is nothing derogatory  about circumstantial evidence. See Onah v. The State (1985) (supra) (per Obaseki, JSC).
I should think that this is understandable in view of the fact that in criminal matters, the action of an offender is hardly in the open and  he may only be pinned to the act by looking at surrounding circumstances and drawing sensible inferences. Once the circumstantial  evidence is cogent and compelling, leading to the irresistible conclusion that the accused is the one and no other who committed the  offence, it is sufficient to support a conviction. See Onah v. The State (supra), Obasi v. The State (1965) NMLR 119. R v. Tepper  (1952) AC 480 at 489, R v. Weaver & Anor. 21 Cr. App. R20 at 21.
As one reads through the evidence of PW1 and PW6 on record, there is not only a compelling but unequivocal feeling that the  cross-appellant was the one who murdered his wife. The evidence is cogent and compelling. Starting with PW6, the medical doctor,  his evidence established unequivocally the cause of death. The clear, unchallenged, unshaken, evidence of PW1 who heard her cry  and shortly afterwards saw the dead body in a pool of her blood that fateful night in the parlour of the cross-appellant into which he  was called by him and requested to help him carry her corpse to a grave already in existence at the time, and who warned him not to  tell that he had killed his wife, together with the PW6’s evidence is even most cogent and unequivocal.
Excerpts from the trial court’s decision set out hereunder in their con from pages 47 and 50 of the records which the  cross-appellant complains and took out of con, show no misconception of the evidence by the trial Judge due to the said delay.
On page 45 of the records, the learned trial Judge asked: “What was the nature of the injury the deceased suffered?
He set out the evidence of PW6 (supra). He then proceeded to reason, review and evaluate the evidence of PW1 and PW6 before  him. He said:-
“In this case, no knife or object of instrument was tendered. I believe and accept the evidence of the PW6 and find that the deceased  died from a neck injury. And who caused that neck injury? From the evidence of PW1 he heard the cry of the accused’s wife in the  room where only the accused was. The cry stopped later. PW1 under cross-examination said he saw blood in the parlour and on the  body of the accused’s wife. I find that the accused caused the injury to the neck of the deceased which injury caused her death.
Section 220 of the Penal Code reads:
“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 the offence of culpable homicide.”
That is the definition of culpable homicide. On a charge of culpable homicide the prosecution has to prove several elements or  ingredients of the offence. One is:
“that the death of a human being has actually taken place.”
In this case, there is abundant proof that the death of Aminatu Babawuro has taken place. PW1 saw the dead body of the deceased.  He knew her before her death. PW6, the Medical Officer, performed a post-mortem examination on the body of the deceased which  was identified to him by a member of deceased’s family one Umaru Manu.
The next element for the prosecution to prove is whether or not such death has been caused by the accused. Has the accused  anything to do with the death of the deceased? I think the answer is yes. PW1 testified that he was sleeping when he heard the wife  of the accused crying and later the cry seized (sic). He later found the dead body of the deceased in the parlour of the accused.
It was only the accused who was in the house. He helped the accused in burying the deceased. The PW1 did not witness the actual  killing, but the part he played goes to show that the accused had something to do with the death of the deceased. The third element  the prosecution has to prove is as follows:
“that the act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as;
(i) the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act; or
(ii) that the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily  injury which the act was intended to cause.”
What inference may reasonably be drawn from the circumstances of this case? The court is entitled to draw such inference from the  evidence as appear proper, taking into account the nature of the weapon used, the number of injuries and whether or not, the blows  were inflicted on a vital part of the body of the deceased.”
The learned trial Judge cannot be faulted in stating the foregoing. The learned trial Judge also set out a part of the evidence of PW1,  as he re-examined the evidence before him. Thereafter, he continued his appraisal. He said:
“If the evidence that the accused had dug a grave prior to the killing of his wife is believed one could have inferred that the accused  had the intention to cause death to his wife. But I do not believe the PW1 that accused had dug the grave before he apparently  stabbed his wife. Why did the PW1 not raise an alarm when he found that the accused had dug a grave. When was the grave dug?  There are several questions to ask about that grave coupled with my finding that the stabbing took place on a certain Sunday, but  PW1 informed this court that the wife of the accused died on one Saturday. I do not believe him that the accused had dug a grave  prior to his stabbing the deceased. I do not find that accused had an intention to kill his wife.”
I must stop here to identify and express that one can see some confused reasoning from this later part of the judgment. It does  portray a misperception not of the evidence but the law. This is where the learned trial Judge hinged his decision not to convict the  respondent. It is my firm view and I must with respect say so unequivocally that the learned trial Judge was in error as argued for the  appellant in the main appeal. What followed after the foregoing in the judgment, is however well articulated. The court said:
“The nature of the weapon used cannot be considered in this case. No knife or other weapon was produced. In respect of the  number of injuries PW6, the medical doctor, testified that the skin was broken at one point on the neck and there was lineal or  straight wound which was about 5 centimetres deep and 3 centimetres in length. The wound was on the right side of the neck. From  the evidence of the medical officer, there was only one point which had injury so the number of injuries could be said to be one. Was  the blow inflicted in a vital part of the body? The neck is an important part of the body.”
With respect to the learned trial Judge, I see some confused reasoning, which is not logical with his earlier findings, and later ones  in the following, which again relates to his appreciation of the law, not the evidence or relating to the demean our of witnesses.
At page 50, the learned trial Judge said:-
“As I have observed earlier the weapon was not produced. The stab injury was on the neck and the amount of force used cannot be  determined. I have to decide that on the evidence I cannot be certain with the degree of certainty demanded by a criminal charge of  such seriousness that death was the probable result of that stabbing. On the other hand, that it was likely there can be no doubt that  a man of accused’s intellect and background must have known it. The accused must have known that the blow or the stab was likely  to cause death.
I have considered the exceptions under section 222 of the Penal Code and I hold that none of the sub-sections applies.”
I am clearly of the view that the foregoing, considered against the evidence on record, shows no misperception or confusion  regarding the evidence or the demeanour of witnesses before the court.
There is the argument for the cross-appellant that there was complete failure to prove the case of the prosecution beyond  reasonable doubt and that the conviction must be set aside. This is the issue in the main appeal already addressed. Be that as it  may, I would not agree with this. The argument is clearly misconceived. Let me at this point further address the issue wherein  learned Counsel for the cross-appellant referred to the part of the judgment, where the learned trial Judge said he did not believe  PW1 that the accused dug the grave before he apparently stabbed his wife.
This is one element on which he based his claim that the learned trial Judge lost touch with the evidence before him due to the delay  in delivering his judgment after parties closed their case. I hold the firm view that the delay had no such effect. The court below was  simply in error, and it is one, in law.
With much respect to the learned trial Judge and learned Counsel, the evidence of PW1 regarding the grave has to be set out here  again and seen within its con, risking repetition. PW1 said,
” …When I was sleeping, I heard the wife of my master Aminatu Babawuro crying. Later on, the cry stopped then my master Babawuro  called me. When I came out, I moved into the parlour of his house. I saw the dead body of his wife Aminatu Babawuro. The accused  has (sic) already dug a grave inside the yard, the accused asked me to help him carry the dead body of his said wife. I helped him in  taking the said body and put same inside the grave …”
From the scenatio created by the foregoing, I do not think it is in any way far-fetched, to infer that the grave was in existence when the  accused called in PW1 to help him. Obviously, it was into an existing grave the accused with the help of PW1 carried the corpse of the  deceased at the request of the cross-appellant. The uncontradicted, and rather damaging testimony of PW1 concerning the time lag  between the events narrated in his evidence, and other pieces of evidence could only lead to that conclusion about the grave. The  learned trial Judge had not proffered justifiable reason to refuse to believe it. I must however firmly identify that the issue as to when  the grave was dug does not diminish from the conclusion as to how the deceased met her death and by whom, which the court  below clearly identified and believed from the evidence of PW1 and PW6. (See page 45 lines 20-25).
In refusing to believe the evidence regarding the pre-existence of the grave, the learned trial Judge has only created a lever to enable  the accused escape from a crime so heinous as the one charged. The finding is not supported by the evidence. It has not caused  miscarriage of justice to the accused as argued for the cross-appellant, but to the cross- respondent.
In the course of his oral argument at the hearing of this appeal, learned Counsel for the cross-appellant, Mr. Igbokwe had referred us  to the submission of the cross-respondent in paragraphs 5.3 and 5.4 of his brief of argument regarding the issue of delay in  delivering the judgment by the lower court. Counsel argued that this portrayed an agreement between the parties that the delay by the  trial court in delivering the judgment within the 3 month period required by the Constitution had caused a miscarriage of justice and  that this ought to move this court to allow the cross-appeal and dismiss the main appeal.
I hold the view that Mr. Haruna, learned D.P.P. of Taraba State’s reply to this submission of the cross-appellant is appropriate, when  he drew our attention to the fact the miscarriage of justice referred to by the appellant in his brief affected the State, i.e. the appellant.  It was not against the respondent/cross-appellant. What was the gist of learned Counsel’s argument in paragraph 5.3 of his brief  and also paragraph 5.4? It was simply that a trial Judge who believed the uncontroverted evidence of PW1 and PW6 as to who and  what caused the injury on the neck of the deceased leading to her death, ought to have convicted the accused under section 221 (a)  of the Penal Code as charged. He then added (what I consider an opinion), based on speculation which does not advance the case  in any way.
“Rather because of the 8 months delay in the delivering of the judgment, sympathy started setting in on the mind of the court  culminating in some legal gymnastics and subsequent conviction under section 220(6) …”
He did not say as the cross-appellant, that confusion arose as to the evidence as a result of the delay.
Learned Counsel then identified other findings of the court, the law and further evidence, expatiating on why the court below ought to  have convicted the accused as charged and concluded however that the delay, did not occasion any miscarriage of justice against  the cross-appellant.
I agree there was some “legal gymnastic” – for as earlier stated, it was an error in law committed by the court below which led to  miscarriage of justice, not against the cross-appellant, but against the appellant/cross-respondent.
The foregoing clearly, does not show that the cross-respondent’s counsel’s submission supports the cross-appellant to the effect  that the delay in delivering judgment caused the court to lose touch with the evidence before him and the demean our of witnesses  as claimed by his learned Counsel.
Let me summarise finally, the principles upon which the courts have built proceedings and judgments on the issue of delay in  delivering judgment after the conclusion of trial. It is helpful to use as a point of reference, the principles in Emenimaya v. Okoroji  (1987) 3 NWLR (Pt. 59) 6, which learned Counsel for the appellant/cross-respondent has persuaded us in his oral submission to  apply in this matter. Even if we apply it, it still does not help the cross-appellant unless he satisfies the condition laid down therein  and in section 258(4) of the 1979 Constitution. In the Emenimaya’s case, the Supreme Court held that section 258(1) of the 1979  Constitution which came into force on October 1, 1979 did not apply. For although the section was in force at the time of the appeal to  the Court of Appeal, it was not, at the time of the final addresses of the parties before the trial High Court on 2/11/78.
The Supreme Court, however considered the issue of delay which it thought indeed inordinate. Based on principles which had  evolved in the courts before the enactment of the 1979 Constitution, it upheld the complaint of undue delay in the conduct of the  proceedings and delivery of judgment by the trial High Court.
The principles are built around findings of fact, credibility of witnesses and evaluation of evidence which are within the province of a  trial court. It was then reasoned that an appellate court will not ordinarily disturb the findings of fact by a trial court relating to credibility  of witnesses, etc, since they are matters falling within the knowledge of the trial court on account of having seen and heard the  witnesses who gave evidence before it. But, where the trial court held up its judgment for such an unreasonable long period of time,  an appellate court will not hesitate in a proper case to intervene and when necessary, set aside such findings – Chief Yakubu  Kakarah v. Chief Okere Imonikhe (1974) 4 SC 51, and Onosiaherhorwe Ekori & Ors. v. Edo Kimisede & Ors. (1976) 9-10 SC 61 relied  on. (Per Kawu, JSC) at page 15).
From what the learned Justice of the Supreme Court said, the reason for setting aside such findings due to undue delay in delivering  judgment is the contention that the trial Judge had lost all the impressions which the trial in court could have accorded him as a  result of the long lapse in time.
This is what the learned Justice said:
“In this case, in view of the many long intervals of delay in taking the evidence of the parties and their witnesses and the long lapse of  time between the conclusion of the hearing and the delivery of the judgment, can it be seriously contended that the trial Judge had  not lost all the impressions which the opportunity of a court of trial could afford him? A perusal of the judgment in this case clearly  shows that the trial Judge was unable to make specific findings on several crucial issues which were in controversy between the  parties, and this was no doubt due to the fact that he had completely lost his impression of the case.”
In that case, the records showed that there was indeed, undue delay following several adjournments, some spanning several  months. Hearing of the case which commenced on 29/3/76 with the evidence of the plaintiff and ended on 31/3/76, dragged on till  2/11/78. For, when the defence closed on 20/7/78, final addresses did not take place till 2/11/78, when it was adjourned for judgment  to 30/11/78. Judgment was however, not delivered till 5/11/79, over one year after the conclusion of hearing in the case and infact  three years seven months after trial commenced.
As a result the Justice of the Supreme Court held thus:
“In this case, it is my view that owing to the long interval between the conclusion of evidence and final addresses and the delivery of  judgment the trial Judge ought to be regarded as having lost the advantage of seeing and hearing the witnesses, who had given  evidence before him. In the circumstances, it would have been almost impossible for him to come to a right decision in his  judgment”.
To this, Bello, CJN (as he then was), Eso, JSC, Aniagolu, JSC and Kazeem, JSC concurred.
Obviously, the applicable principles are not predicated merely on proof of delay, but on the effect on the ability of the trial court to carry  out its primary duty of appraisal and evaluation of evidence of the witnesses before him.
Clearly, section 258(4) of the 1979 Constitution is in that spirit. Until the cross-appellant establishes these elements enunciated by  the courts and section 258(4) of the Constitution, he will not succeed in moving this court to nullify the proceedings and judgment of  Oluoti, J.,-as he seeks to do.
On the whole, there is nothing shown by the cross-appellant who complains about the delay in delivering the judgment and its effect  on him to satisfy this court that he has suffered any miscarriage of justice as prescribed by section 258(4) of the 1979 Constitution. I  would therefore, also determine this second part of his issue against the cross-appellant. In the premises, both grounds 1 and 2 of  the cross-appeal fail. The cross-appeal is hereby, dismissed.
I will recap, in conclusion regarding the main appeal thus:
The appellant’s 4 grounds of appeal having succeeded, I would in exercise of the powers of this court allow the main appeal, set  aside the verdict and sentence of the court below, presided over by Oluoti, J. I set the same aside and substitute the following:-
The accused is hereby found guilty of the offence of culpable homicide punishable with death under section 221(a) of the Penal  Code as charged. He shall be hanged by the neck until he is dead.

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