Tijani V. State (2021)
LAWGLOBAL HUB Lead Judgment Report
UCHECHUKWU ONYEMENAM, J.C.A.
This appeal is against the judgment of the High Court of Kogi State in case No. AHC/1C/2019 delivered by A. N. Awulu, J. on 29th April, 2020.
The Appellant was charged and convicted on 2 counts charge for the offence of Criminal Conspiracy contrary to Section 97(1) of the Penal Code Law and offence of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code Law.
The Appellant, dissatisfied with the judgment of the trial Court, approached this Court by a Notice of appeal filed on 20th May, 2020. Counsel on both sides filed relevant processes as required by the rules of the Court and the Appeal was heard on 4th March, 2021.
A. O IGEH appearing with A. A AKOR for the Appellant adopted and relied on the Appellant’s Brief of Argument filed on 4th August, 2020. He urged the Court to allow the appeal. IBRAHIM SANI MUHAMMED, SAN appearing with HABIB ABDULLAHI; MARYANN OTARU; OJOMA ETUBI; NTIMA BABIU for the Respondent adopted and relied on the Respondent’s brief of argument filed on 17th September, 2020. In the Appellant’s brief of argument settled by A. O. IGEH, ESQ., 2 issues were formulated for determination as follows:
- Whether having regard to the evidence on record and the standard of proof, the lower Court rightly convicted the Appellant on the 2 counts of charges.
- Whether the lower Court properly evaluated the evidence on record and whether its decision is not unreasonable, unwarranted and liable to be set aside.
In the Respondent’s brief of argument prepared by A. W. ZAKARI, ESQ a sole issue was raised for determination thus:
Whether or not the trial Court was not right when it held that the prosecution proved beyond reasonable doubt the offences of criminal conspiracy and culpable homicide punishable with death under Sections 97 (c) and 221 (a) of the Penal Code against the Appellant.
The two issues distilled by the Appellant tantamount to the sole issue raised by the Respondent. I shall therefore resolve the sole issue formulated by the Respondent in the determination of the appeal to avoid repetitions.
SUBMISSIONS ON SOLE ISSUE
The learned counsel for the Appellant submitted that on the offence of culpable homicide punishable by death, the prosecution did not discharge the burden of proof, having failed to prove the essential ingredients of the offence of culpable homicide and consequently, the Appellant is entitled to an order of discharge and acquittal. He cited the case of KOLADE V. STATE (2017) 8 NWLR (PT. 1566) 60 at 144-115
The learned counsel conceded to the fact that Ibrahim Yakubu referred to in the charge is dead but submitted that the prosecution did not link the cause of the death of the deceased to the Appellant. He relied on: OCHE V. STATE (2007) 5 NWLR (PT. 1021) 2014; ILIYASU V. STATE (2014) 15 NWLR (PT. 1430) 245 and EKPOISONG V. STATE (2009) 1 NWLR (PT. 1122) 354.
The learned counsel analyzed the testimonies of the witnesses and submitted that the prosecution was unable to prove that no person other than the Appellant committed the offence having regard to the evidence on record.
On the offence of criminal conspiracy, the learned counsel submitted that the prosecution did not prove the essential element of criminal conspiracy against the Appellant.
On the evaluation of evidence by the trial Court, the learned counsel contended that the trial Court failed to properly evaluate the evidence before it. It was further submitted that the trial Court failed to resolve the doubts raised on the prosecution’s evidence in favour of the Appellant.
It is the contention of the Appellant that prosecution did not cross-examine the DW1 and is deemed to have admitted the evidence of DW1. The learned counsel reproduced some part of the judgment of the trial Court; demonstrated and analyzed the evidence of the witnesses in submitting that the trial Court believed the prosecution’s evidence without evaluating the evidence. He urged the Court to allow the appeal.
Mr. Abdullahi for the Respondent reproduced the ingredient of the offence of culpable homicide; he demonstrated with the evidence of prosecution’s witnesses and the Exhibit tendered at the trial Court in submitting that the Appellant committed the offence charged and that the trial Court properly found the Appellant guilty and convicted him accordingly.
On the contention of the Appellant that the Respondent did not cross-examine DW1, the learned counsel submitted the prosecution is not duty bound to cross-examine all the defence witnesses so long as the ingredient of the offence charged have been successfully proved.
The learned counsel urged the Court to dismiss the appeal.
RESOLUTION OF ISSUE
Culpable homicide is defined in Section 220 of the Penal Code.
It 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 such a rash or negligent act, commits the offence of culpable homicide.
Generally, homicide means the killing of one person by another. In other words, it is the act of purposely, knowingly, recklessly, or negligently causing the death of another human being. While culpable homicide means a wrongful act that results in a person’s death, it does not amount to murder. See: UMARU ADAMU VS THE STATE (2014) 10 NWLR (PT. 1415) 441; (2014) 8 SCM 1; (2014) 4 & 5 SC 1; (2014) ALL FWLR (PT. 733) 1938.
To succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt:
(a) That the person the accused person is charged of killing actually died;
(b) That the deceased died as a result of the act of the accused person;
(c) That the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence. See: STATE V. JOHN (2013) 1 NWLR (PT. 1368) P. 337; TUNDE ADAVA & ANOR VS. THE STATE (2006) 9 NWLR (PT. 984) 152; (2006) 3 SCM 1, (2006) 2 SC (PT. 11) 136; MAIKUDI ALIYU VS. THE STATE (2013) 12 SCM (PT. 2) 195; BELLO V STATE (2007) 10 NWLR (PT. 1043) 564; OLADELE V NIGERIA ARMY (2004) 6 NWLR (PT. 868) 166, AKPA V THE STATE (2007) 18 NWLR (PT. 1019) 50; UBANI V THE STATE (2003) 18 NWLR (PT. 851) 24, BAKARE V THE STATE (1987) 1 NWLR (PT. 52) 579. It must however be noted that all the above three ingredients of the offence must necessarily co-exist and none must be lacking. Where one is missing or not established, it means that the prosecution has simply failed to discharge the burden of proof that the law places on her in order to succeed with the charge. See: GALADIMA V. STATE (2017) LPELR-43469(SC); DANBABA V. STATE (2018) LPELR-43841 (SC).
In the instant suit which gave rise to this appeal; on the proof of the offence of culpable homicide under Section 221 of the Penal Code as reproduced above. It is not in dispute that Ibrahim Yakubu died on 16th November, 2017. On the proof of other ingredients of the offence of culpable homicide, the duty of the prosecution in any criminal matter is to prove the charges against an accused person beyond reasonable doubt. See: AKIBU V. STATE (2019) LPELR-47630 (SC). The onus of proving the guilt of any person accused of the commission of a crime lies on the prosecution and that burden never shifts but must be discharged by credible evidence to ensure that all necessary and vital ingredients of the charge or charges are satisfactorily proved. See: STATE V. JAMES GWANGWAN (2015) 13 NWLR (PT.1477) 600, AT 621, PARAS B-E PER OKORO SC. See also YONGO V. COMMISSIONER OF POLICE (1992) LPELR-3528 (SC); (1992) SCNJ 113; (1992) 8 NWLR (PT.257) 36; OGUNDIYAN V. THE STATE (1991) LPELR-2333 (SC); (1991) 3 NWLR (PT.181) 519, ALONGE V. IGP (1959) 4 FSC 203; IBRAHIM V, THE STATE (2015) 11 NWLR (PT. 1469) 164 AT 192, PARAS A-B.
By the record before me, PW1 in his examination in chief as contained at pages 18 and 19 of the record of appeal, said that Ibrahim (the deceased) told him that his brother Shekuru called him to meet him at Otondo and under cross-examination said that the scene of crime was along the road at Otondo, he further said that he was not present at the scene when the crime was committed.
The PW2 in his evidence said that between 7.00 pm and 8.00pm he had a dispute with his wife and reported to his father-in-law who failed to caution his daughter. He said that he called his elder brother Ibrahim Yakubu (deceased) and informed him of the dispute with his wife, while waiting for his arrival his neighbour one Alhaji Ibrahim Adejor helped to resolve the dispute. According to PW2 upon the arrival of his brother, Alhaji Ibrahim Adejor informed him that he had resolved the issue and while seeing his brother off Idris Tijani; Suleiman Tijani; Nasiru Tijani, Mohammed Tijani Angulu suddenly appeared armed with sticks and began to hit his brother with sticks. Upon cross-examination PW2 said that the scene of crime was on the road separating their compound. His testimony is contained at pages 20 and 21 of the record of appeal.
PW4 in his testimony stated as follows:
“I have been an investigator for eight years; I visited the scene of crime. The scene of crime was Okenyi Uboji in Ankpa. The police was led to the scene of crime by the complainant. The scene of crime was not on the major road but in a dwelling place with many access routes”.
The DW2 on his own testified as follows:
“My name is Tenimu Tijani. I live at Uboji, I am a farmer. I know Yakubu Momoh. I know Ibrahim Yakubu, the deceased. I know the defendant. The defendant is my son. My daughter was married to Shekuru. At about 7.30pm, the said Shekuru began to beat my daughter married to him. I heard her screams and wailings but I did not enter their compound. Soon after, Shekuru came to my house. Immediately he came, he asked me to come and take away my daughter from his house.
Initially, I began to laugh, He repeated his request. I told him I was going to do no such thing. We began to exchange words and insults. After a while, people intervened and each person went his way. Thereafter, he made a phone call intimating his people that his in-laws were beating him and that they should come to his rescue. Soon after, some persons came on three motorcycles in attempt to hit my children, the people struck the deceased with a stick. Shekuru wanted to escape but I insisted he took away the deceased. I followed them to the hospital. The deceased died after three days on hospital admission. The defendant was present at home when Shekuru was making trouble and inviting people to come to his rescue. The defendant went to Isiaka Jibrin in his room to ask for torchlight so as to identify the victim lying on the ground following the crisis. When he flashed the torchlight he saw and said it was Ibrahim the deceased.”
DW2 was not cross-examined.
The Appellant testified as follows:
“My name is Idris Tijani. Before my detention I was living at Okenyi, Uboji. I am a farmer and a commercial motorcyclist. I did not kill Ibrahim Yakubu. On the fateful day, we were gathered in our compound. My sister came crying and told my father that her husband assaulted her. My father sent for her husband. Her husband Shekuru came and my father asked him why he beat up his wife. Her husband Shekuru (i.e. pw2) began to insult my father. My younger siblings asked him why he was misbehaving to our father after assaulting our sister. Shekuru said we were planning to jointly attack him and began to make phone calls to some persons. After a while some persons came ridding three motorcycles, it was already getting dark around 8pm to 9pm. On arrival, they began to rain insults. Those who came include Shekuru, Yunusa and Ibrahim.
The other five persons, I did not see their faces. I went to my brother Isiaka Jibrin to collect a torchlight since it was dark. On my way back, I saw Ibrahim lying on the ground. I was not there when they fought and I do not know why he was lying on the ground. It was Shekuru that took Ibrahim Yakubu to the hospital. On sighting the police in our compound after the incident, I had to run away to avoid indiscriminate arrest.
I did not run away because I killed Ibrahim Yakubu but I did so to prevent indiscriminate arrest as police usually do. It was when I sighted the police that I ran away. I was arrested eight months after the death of lbrahim Yakubu. I was arrested at Okura in Dekina Local Government Area.
On failure to cross-examine a witness on a material point, the Supreme Court in OLA V. STATE (2018) LPELR-44983 (SC) held that:
“Where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence.”
The Supreme Court also, in YUSUF & ANOR V. STATE (2019) LPELR-46945 (SC) held thus:
“The evidence of a witness which is not challenged or shaken by cross-examination, which evidence is not inadmissible by law, must be accepted as correct, I completely agree”
See also, the cases of: DAHIRU V. STATE (2018) LPELR- 44497 (SC); SIMON V. STATE (2017) LPELR-41988 (SC); PATRICK V. STATE (2018) LPELR-43862 (SC); IFEDAYO V. STATE (2018) LPELR-44374 (SC); OLA V. STATE (2018) LPELR-44983 (SC); LANRE V. STATE (2018) LPELR-45156 (SC).
From the records, the Respondent did not cross-examine DW2. Consequently, from the above decisions of the Supreme Court, I hold that the Respondent accepts the truth of the matter as led in evidence by the DW2. The DW2’s evidence having been accepted as the truth of the matter by the Respondent, I shall base my resolution of this sole issue on his evidence. DW2 testified that at about 7.30 pm, the PW2 began to beat his daughter married to him and after sometime PW2 came to ask him to come and carry his daughter and they began to exchange words and insults, after which the PW2 made a phone call intimating his people that his in-laws were beating him and that they should come to his rescue. Let me pause here and revisit the testimony of the PW1 who said that Ibrahim (the deceased) told him that his brother Shekuru was calling him to meet him at Otondo. This piece of evidence supports the evidence and testimony of DW2.
DW2 further testified that soon after, some persons came on three motorcycles and started a fight but in an attempt to hit his children, they struck the deceased with a stick. The PW2 wanted to escape but he (DW2) insisted he took away the deceased. The fact that the Respondent chose not to challenge the testimony of the DW2 who is an eyewitness is of great significant.
I have carefully considered the evidence of both the Appellant and the Respondent with their witnesses at the trial Court; it is not in controversy that PW2 had misunderstanding with his wife who happened to be the Appellant’s sister. There was a resulting fight between PW2, the deceased and some others on their side; and the Appellant with some other members of his family. The fight involved the use of sticks as weapons, which incident occurred around 7.00pm to 8.00pm. The deceased died as a result of the fight as he was hit with stick. The dispute is as to who hit the deceased with stick that led to his death. The question that ensues is whether the prosecution proved beyond reasonable doubt that it was the Appellant who hit the deceased with a stick which caused his death?
From the evidence of the Respondent before me, the Respondent failed to establish how he identified the Appellant as the person who struck the deceased with a stick. The evidence on record is that it was dark and the incidence was in a dwelling place. There is no evidence on record as to whether the fight took place inside an enclosure or outside but in the DW1’s compound. Furthermore, the unchallenged evidence on record that the Appellant went into his brother’s room to collect torchlight from him to be able to identify who was lying down on the floor is conclusive of the lighting situation at the scene of crime at the time of the crime. This piece of evidence which was not controverted, in my view, establishes the light situation of the scene of crime at the time of the crime; which is to say it was dark that no one could identify the other without the aid of light. This was a dangerous scenerio as one could mistakenly hit a member of his team fighter in an attempt to hit an opponent. This impresses on the mind, the uncontroverted evidence of the DW2 that it was the people who Shekuru the deceased’s brother invited for the fight that hit the deceased in an attempt to hit his children and also that Shekuru (PW2) wanted to leave his deceased brother where he fell to escape but for his intervention. Having in mind that this piece of evidence was not challenged by cross-examination and for the analysis I have made, I hold that if the trial Court had well evaluated the accepted evidence of the DW2, the same would have created serious doubt in its mind as to who struck the deceased with stick that led to his death.
Curious again is, why the Appellant and his siblings would allegedly attack the deceased instead of PW2 who had just beaten up their sister and insulted their father (DW2). If the evidence of the PW2 which was discredited by the evidence of the Investigating Police Officer as to the scene of crime is anything to be considered, then the prosecution failed to fill the gap as to why the appellant and his siblings who allegedly suddenly appeared armed with sticks began to hit the deceased with sticks leaving Shekuru (PW2) who apparently had issues with them untouched. This again ought to have created doubt in the mind of the trial Court as to who hit the deceased and which doubt ought to have been resolved in favour of the Appellant.
I accordingly hold that the trial Court failed to properly evaluate the evidence before it and particularly the defence of the Appellant. Also, the Respondent failed to prove all the ingredients of the offence of culpable homicide having failed to establish beyond reasonable doubt that the Appellant caused the death of the deceased.
On the offence of criminal conspiracy.
Section 96(1) of the Penal Code defines criminal conspiracy. It reads:
“96(1) when two or more persons agree to do or cause to be done-
(a) an illegal act; or
(b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.”
See OGU v. COP (2017) LPELR-43832 (SC).
The Supreme Court in defining conspiracy held in AWOSIKA v. STATE (2018) LPELR-44351(SC) as follows:
“It is pertinent to say that the word “conspiracy” has been described in Mulcahy vs R (1968) 3 HC at 377 when Willes J of House of Lords stated thus:-
A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So being as a design rest in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties, promise against promise, actus centra acins, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. (emphasis supplied by me). See also. cases of Patrick Njovens & Ors vs The State (1973) 5 SC 17; Dabo & Ors vs The State (1994) 5 NWLR (Pt. 346) 535. It is now settled law, that the offence of conspiracy can most of the time, only be established through inferences of common design or agreement by two or more persons to do or not to do a criminal act. The offence of conspiracy is seldom capable of being proved through direct evidence, but is largely established through inferences from the act or action of the parties thereto, which said act was focused towards realization or achieving a common or natural criminal purpose. See, ODUNEYE V THE STATE (2001) 1 SC (PT. 1) 1 AT 617, GODWIN (ISIENEI) CHIANUGO V STATE (2001) FWLR (PT. 74) 242 AT 251; KENNETH CLARK & ANOR VS THE STATE (1986) 4 NWLR (PT. 35) 381; MUSA V THE STATE (2005) FWLR (PT. 262) 343 AT 353/354″.
The offence of conspiracy is complete once a concluded agreement exists. The parties must agree that a course of conduct shall be pursued which will definitely amount to or result in the commission of an offence by one or more of the parties to the agreement. There must be a criminal purpose that the parties share as their common purpose. See: NDOZIE v. STATE (2016) LPELR-26067 (SC); ADEJOBI & ANOR V. STATE (2011) 6-7 SC (PT. 11) P. 65, (2011) 12 NWLR (PT. 1261) 347; STATE V. SALAWU (2001) 12 SC (PT. IV) P. 191, (2011) 18 NWLR (PT. 1279) 580.
To secure a conviction in a charge for criminal conspiracy the Supreme Court in OGU V. COP (2017) LPELR-43832 (SC) held thus:
“The prosecution must prove:
(a) an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means;
(b) where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement; and
(c) that each of the accused persons individually participated in the conspiracy. See: YAKUBU V. THE STATE (2014) 8 NWLR (PT. 1408) 111 @ 123 F H; TANKO V. THE STATE (2009) 16 NWLR (PT. 1114) 597.”
Therefore, in a charge for conspiracy the agreement constitutes the offence and it is not necessary to prove that the act has actually been committed. It is also trite that having regard to the nature of conspiracy, it is seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. The evidence relied upon must, however, be of such quality that it irresistibly compels the Court to make an inference as to the guilt of the accused. See: YAKUBU V. THE STATE (SUPRA); OBIAKOR V, THE STATE (2002) 10 NWLR (PT. 776) 612; ODUNEYE V. THE STATE (2001) 2 NWLR (PT. 697) 311; NJOVENS V. THE STATE (1973) 5 SC 17; DABOH V. THE STATE (1977) 5 SC 197.
The Appellant in his defence testified thus:
‘I went to my brother Isiaka Jibrin to collect torchlight since it was dark.’
DW1 also testified in favour of the Appellant thus:
‘Thereafter, I went to Isiaka Jibrim to intimate him of what was happening outside. There, I met the defendant asking for torchlight from Isiaka Jibrin’.
DW2 also testified in favour of the Appellant thus:
‘the defendant went to Ishiaka Jibrin in his room to ask for a torch so as to identify the victim lying on the ground following the crisis’
The only testimony of PW2 in proving criminal conspiracy is that:
“While seeing him off, Idris Tijani, Suleiman Tijani, Nasiru Tijani, Mohammed Tijani Angulu suddenly appeared armed with sticks and began to hit my brother with sticks. I began to scream and some people rushed to the scene”.
This piece of evidence was debunked by the prosecution herself when the Investigating Police Officer said the crime did not take place on the road but in a dwelling place. This means the appellant and his siblings could not have suddenly appeared from nowhere with sticks to attack the deceased leaving out the PW2 who beat up their sister and insulted their father. The evidence of the PW2 who was the only eyewitness having been discredited by the prosecution; cannot be believed to the extent that the appellant and his siblings emerged with the common agreement to fight or kill someone who from the totality of the evidence before the Court had no dispute with them. The Respondent did not create via her evidence, the circumstance on which the Court could draw inference. Rather, from the unchallenged evidence of DW2 which the law mandates the Court to accept, it was the PW2 and the people he invited through phone call to aid him in a fight that had a common intention to fight the DW1 and his family in DW1’s premises. I do not therefore agree with the learned trial Judge that the Respondent proved the offence of criminal conspiracy against the Appellant beyond reasonable doubt.
I resolve the issue in favour of the Respondent.
Consequently, I hold that the appeal is meritorious and the same is consequently allowed.
I quash the conviction and sentence of the Appellant by the trial Court entered on 29th April, 2020 by A. N Awulu, J. in Case No: AHC/1C/2019.
I discharge and acquit the Appellant on the offence of culpable homicide and criminal conspiracy.