Tunde Adava V The State (2006) LLJR-SC

Tunde Adava V The State (2006)

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The appellants were charged with the offence of culpable homicide punishable with death under section 221(a) read with section 79 of the Penal Code, Cap. 89 the Laws of Northern Nigeria 1963, Vol. III (applicable in Kogi State). They each pleaded not guilty to the charge.

The prosecution called a total of five (5) witnesses and closed its case. Each of the appellants testified in his own defence and jointly called four (4) witnesses. At the end of the trial and in a considered judgment, the learned trial judge found each of the appellants guilty as charged, convicted them and sentenced them to death.

Being aggrieved by the decision of the trial High Court, the appellants each appealed to the Court of Appeal holden at Abuja. In a reserved judgment, the Court of Appeal in a unanimous judgment dismissed the appeals and confirmed the decision of the trial court.

Still dissatisfied with the judgment of the Court of Appeal, the appellants have now further appealed to this court. Both sides filed and exchanged briefs of argument in compliance with the rules of court. At the hearing of the appeal, learned counsel for the appellants, Ibrahim Isiyaku Esq, adopted his brief. It was a joint brief. The respondent was absent and was not represented. But having filed its brief, it would be taken as having argued the appeal vide Order 6 rule 8(6) Supreme Court Rules.

The appellants in their joint brief have identified the following issues as arising for determination in the appeal –

“1. Whether the extra-judicial statements admitted in evidence as exhibits 2, 5 & 6 were in conflict with the testimonies on oath of their respective makers PW2, PW4 and PW5.

  1. Whether the medical report, exhibit 1, was conclusive as the cause of death.
  2. Whether the defence of alibi was properly considered and rightly rejected.
  3. Whether the lower court was right to have come to the conclusion that the prosecution had proved its case.

Before delving into the issues, let me first of all state the material facts of the case. The appellants on 14/3/96 were in a group of people returning from a political rally armed with all sorts of dangerous weapons. The 1st appellant was armed with a dane gun. The crowd attacked the premises of some people including that of the deceased, where the 2nd appellant was alleged to have ordered the 1st appellant to shoot at the deceased. The 1st appellant shot at the deceased in the stomach. That was around 6.00 p.m. on the same day (14/3/96). The deceased was then taken to a herbalist or native doctor for treatment. After seeing the deceased, the herbalist said he could not remove the “bullet” or “pellet.” The deceased was then retumed to his home. The Police saw him in his home the following day on the 15/3/96 and recorded his statement. The deceased died on 16/3/96 on his way to hospital. A post mortem examination was conducted on the dead body by a medical doctor who testified as PW1. He issued a medical report tendered as exhibit 1 in the proceedings.

Now, back to the issues reproduced above. Issues 1 and 3 can be disposed of quickly. Issue 1 relating to inconsistencies in the statements of witnesses to the Police and their oral evidence in court, is in my view clearly misplaced. The role of a trial court is to hear evidence and make findings of fact based on the credibility of the witnesses and decide the merit of the case based on the findings. In this case, the learned trial Judge who had the privilege of listening to the witnesses and watching their demeanour came to the conclusion that the witnesses presented by the prosecution were witnesses of truth. The Court of Appeal agreed with him. I have no reason to interfere. The court below was right in holding that there were no material inconsistencies in the evidence of the prosecution witnesses. Issue 1 therefore fails.

As for Issue 3 which is on the defence of alibi raised by the appellants, the lower courts rightly rejected same because there was overwhelming evidence on record fixing the appellants at the scene of the crime on the fateful day (see for example Ozaki v. State (1990) 1 NWLR (Pt.124) 92; Onafowokan v. State (1987) 3 NWLR (Pt.61) 538. Issue 3 also fails.

I intend to take issues 2 and 4 together. Issue 2 is part of issue 4. They all go to show whether or not the prosecution proved its case beyond reasonable doubt against the appellants. It is settled that for a charge of culpable homicide punishable with death to succeed, the prosecution is required to prove the following ingredients of the offence –

(a) That the death of a human being has actually taken place;

(b) That such death has been caused by the accused;

(c) That the act was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.

I need not say that the above ingredients of the offence must all be proved together and that failure to prove anyone of them means failure of the charge itself.

The appellants contended, that the prosecution has failed to prove the cause of death to be due to the gun shot wound allegedly inflicted by the 1st appellant on the deceased.

I have said earlier on that when the deceased was shot on 14/3/1996, he was taken to a herbalist who said he could not help, He returned to his home. The Police saw him in his house on 15/3/1996 and recorded his statement. The deceased was being taken to a hospital on 16/3/1996 when he died on the way. A post mortem examination was conducted by a medical doctor who testified as PW 1. Testifying on page 75 of the record he said –

“On the 16th day of March, 1996 about 9.30 a. m. I was on duty at the Specialist Hospital Obangede…I performed a post mortem examination on the dead body… in my opinion the hole might have been brought about by a hot object either directly or at a high velocity. What I mean is that a pellet from a gun might have caused such a hole.”

Under cross-examination, the doctor stated on page 76 of the record thus:

“No pellet was removed by me from the body of the deceased. I did not state in exhibit “1” (Medical Report), that there was a burn on the body of the deceased. I did not say in exhibit “1” that the probable cause of death was the penetration of a hot object a pellet is not as small as a needle.”

The medical evidence is to say the least very unsatisfactory. It is inconclusive. It has therefore failed to establish the cause of death. PW2 who took the deceased to a herbalist and who was also taking him to a hospital when he died on the way, gave no description whatsoever of the condition of the deceased from the time he was shot until the died. The local herbalist who failed to help the deceased was also not called to give evidence about what he saw or observed and the general condition of the deceased when he was brought to him. The deceased was thus never taken to any hospital for treatment until he died two (2) days later on the way to a hospital. The medical evidence of PW1 is clearly not helpful at all. Neither in his evidence in court nor in his medical report (exhibit 1), did he say what the cause of death was (see for example Ogutolu v. State (1996) 2 NWLR. (Pt. 432) 503; Uguru v. State (2002) 9 NWLR (Pt.771) 90; Gira v. State (1996) 4 NWLR (Pt. 443) 375). This is fatal to the case of the prosecution. The prosecution has thus failed to prove one of the essential ingredients of the charge, namely that the appellants caused the death of the deceased. The charge against the appellants is therefore not proved. They must be acquitted and discharged of that charge. But in my view the matter does not end here.

There is clearly abundant evidence on record which shows that the 2nd appellant ordered the 1st appellant to shoot at the deceased with his dane gun. And he complied with the order. The deceased was shot in the stomach and he died two (2) days later (see the evidence of PWs’ 3, 4 and 5, the eye witnesses). By shooting his dane gun at the deceased, the 1st appellant must have intentionally intended to cause the deceased bodily pain. This is a lesser offence under section 240 of the Penal Code and punishable under section 246 of the same Code for which each of them could have been convicted.

Consequently, the appeals succeed and they are hereby allowed.

The convictions and sentences of death passed on each of the appellants by the trial High Court and confirmed by the Court of Appeal are set aside. Each of the appellants is discharged and acquitted of the charge under section 221 read with section 79 of the Penal Code.

However, in exercise of the powers under Section 218 of the Criminal Procedure Code, Cap. 30 the Laws of Northern Nigeria 1963 Vol. 1, (applicable in Kogi State), each of the appellants is found guilty of a lesser offence of voluntarily causing hurt without provocation under section 246 of the Penal Code. Each of them is accordingly convicted and sentenced to imprisonment for a term of one (1) year only, with effect from 29th July, 1999 when they were convicted by Okene High Court, Kogi State.


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