In the Court of Appeal,Ilorin Judicial Division,Holden at Ilorin,On Thursday, November 3, 2011,Before their Lordships:Tijjani Abdullahi, Justice, Court of Appeal;Joseph Shagbaor Ikyegh, Justice, Court of Appeal;Ita George Mbaba, Justice, Court of Appeal;Appeal No. CA/IL/C.14/2011Between:Sebo Bello '. (appellant)andThe State '. (respondent)Judgment (Delivered by Tijjani Abdullahi, (J.C.A)AT the Kwara State High Court, Holden at Ilorin, Coram I.B. Garba (J), the appellant herein (as an accused person) was charged with the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code on the July 28, 2010. The charge against him reads thus: 'That you, Sebo Bello, on or about December 24, 2006, at Bweru Fulani Camp via Yshikiri within the jurisdiction of this court committed culpable homicide punishable with death in causing the death of one Juliya Bio by cutting her on the neck with a cutlass and thereby committed an offence punishable under Section 221 of the Penal Code'.The case of the prosecution as can be gleaned from the record of proceedings was that on or about the December 24, 2006, at Bweru Fulani Camp, the appellant caused the death of the deceased, his wife, by cutting her neck at about 2.00 a.m.On that fateful day, the appellant was said to have visited his wife, the deceased, who was then staying in her parents' house after child's birth in accordance with the Fulfulde culture and tradition. The cry of the deceased's baby alerted the father of the deceased who went to the hut where the deceased was allegedly sleeping with the appellant around 2.00 a.m. only to find the deceased in a pool of her blood. The appellant was nowhere to be found. He was later arrested and arraigned before the court for trial.On October 27, 2008, when the charge was read and explained to the appellant, he pleaded not guilty and the case proceeded to hearing. The appellant was found guilty and convicted of the offence of culpable homicide as charged. The learned trial judge held inter alia thus:'In view of the above findings, I could not but agree with the prosecution that the charge of culpable homicide punishable with death is proved against the accused. He is, therefore, convicted as charged having found him guilty of the offence'.The learned trial judge then sentenced the appellant to death by hanging until he is pronounced dead. That was on the same day he was convicted i.e. July 28, 2010.Dissatisfied with the decision of the lower court, the appellant approached this court and expressed so by filing a notice of appeal, which carries four grounds of appeal and sought for the following reliefs:' That the appeal be allowed;' That the conviction and sentence be quashed:Learned counsel for the appellant, in a brief settled by Olalekan Yusuf, distilled from the four grounds, two issues for determination to wit:' Whether the conviction of the appellant can be supported having regard to the totality of evidence before the trial court. (Related to Grounds 1 & 3);' Whether there was a causal connection between the acts of the appellant and the acts leading to the death of the deceased. (Related to Grounds 2 & 4)'.For his part, learned counsel for the respondent did not formulate any issue for determination but adopted the two issues distilled for determination by the appellant's counsel.On October 10, 2011, when the appeal came before us for hearing, learned counsel for both parties adopted the briefs as their arguments in the appeal. Learned counsel for the appellant, Mr. Yusuf, adopted his brief dated and filed on February 16, 2011. Learned counsel urged us to allow the appeal and discharge and acquit the appellant.Consequence of any bodily injury, which the act was intended to cause.See State v. Azeez (2008) 14 NWLR (Part 439) @ 477, paras F-H. Also see Shande vs. State (2005) 1 NWLR (Part 907), page 218 @ 238, paras D-G.Learned counsel submitted that the prosecution failed in its duty to discharge the duty of proving the charge against the appellant beyond reasonable doubt by failing to establish ingredients listed supra against the appellant. Learned counsel further submitted that the prosecution only succeeded in proving the 1st ingredients to the effect that deceased had died but her death was not linked to the act of the appellant and neither was any reasonable evidence of intention to cause death on the part of the appellant adduced before the trial court.On the evidence of PW3, the father of the deceased, who was closest in proximity to the crime, learned counsel posited that PW3 admitted to not seeing the appellant killing the deceased but that he was alerted by the cry of the deceased's baby and on getting to the hut of the deceased, he met her in the pool of her blood and suddenly concluded that the appellant was the culprit, just because, he claimed, the appellant visited them on the fateful day. This, according to the learned counsel, made the witness (PW3), father of the deceased, to inform the village head and a man-hunt was launched that led to the arrest of the appellant wherein he (appellant) told them that it was the will of God to kill his wife.It is the contention of the learned counsel that though the evidence of PW3 established the fact that the deceased was killed, but it fell short of establishing that it was the act of the appellant that caused the death of the deceased. The mere fact that appellant visited the deceased on the day of the incident bears no convincing and reasonable correlation with the death of the deceased, learned counsel further contended.Learned counsel posits that the testimony that the appellant confessed to his captors that it was the will of God to kill his wife cannot be wholesomely relied upon, especially because such a statement could not have been a product free from coercion, force the apprehension of danger to his life at the time the statement was made.Learned counsel contended that the testimony of PW3, who is the father of the deceased, ought to be treated with due caution as evidence of a close relative could be tainted with emotion and sentiments. The testimony, he further went on, ought to be treated as that of an interested party and must be scrupulously scrutinised and ought generally not to be given the same weight as the testimony of a disinterested witness.In support of the contention, learned counsel relied on the cases of Maiyaki vs. The State (2008) 3 NWLR (PT. 1075) page 429 at 455, paras B-D and Babalola vs. Wellington (1998) 11 NWLR (PT. 572) 167.It is the contention of the learned counsel that a court of law is not permitted to speculate, whether in civil or criminal proceedings.Relying on the case of Aiguoreghian vs. The State (2004) 3 NWLR (pt. 860) p. 367 at 407, learned counsel submitted that the last seen principle as impliedly relied upon by the learned trial judge is not applicable in the instant case as there was no cogent and direct evidence before the trial court that the appellant was the person last seen with the deceased.On the evidence of PW2, it is the contention of the learned counsel that his evidence as the investigation police officer at best, only proves the 1st ingredient of the offence that the death of a human being had actually taken place without. It is his further contention that the holding of the learned trial judge to the effect that the accused actually admitted killing the deceased, his wife, because his wife regarded him as the commonest man in the society who cannot name his new child is erroneous. Learned counsel held the view that the statement was made in connection with the ill-fated confessional statement of the appellant, which the learned trial judge rejected. It is trite law, learned counsel went on, that rejected evidence cannot form the basis of findings of the court.Learned counsel submitted that the evidence proffered by the prosecution herein lacks in exactitude and ought to be construed as raising a reasonable doubt in favour of the appellant. Learned counsel relied on the case of Ajose vs. State (2002) 7 NWLR (part 766) p.302 at 0.319 paras D-E.Learned counsel is of the view that the finding of the learned trial judge that, 'the appellant embarked upon unremorseful denial and sojourn of blatant lies and described this as an episode of a betrayed husband' is not borne out of the evidence before the court. Learned counsel submitted that, quite apart from the fact that lies told by an accused person does not relieve the prosecution of the burden of proof, an accused person enjoys the right of presumption of innocence under the Nigerian Criminal Justice. He referred us to Section 36(6)(5) of the Constitution of the Federal Republic of Nigeria, 1999 and the cases of Chianugo vs. the State (2002) 2 NWLR (Pt. 750) p. 225 at 236 and Shande vs. State (2005) 1 NWLR (Pt. 907) p.218 to buttress his submission on this point. We were urged to resolve this issue in favour of the appellant.For his part, learned counsel for the respondent, J.A. Mumini, DPP, Kwara State Ministry of Justice, submitted that the expression prove beyond reasonable doubt as a cardinal principle of criminal liability is not and should not be taken for proof beyond every shadow of doubt.In criminal trials, the expression prove beyond reasonable doubt as contained in Section 138(1) of the Evidence Act is twin fold, that is, that an offence has been committed and that no other person than the accused committed the offence. It is when these two essential elements have been established that the prosecution is said to have established its case beyond reasonable doubt. Learned counsel relied on the case of Miller vs. Minister of Pensions. (1947) 2 All ER 372 of 373 H per Denning J (as he then was).Learned counsel after reproducing in extenso the judgment of the learned trial judge as it relates to the standard of proof required in a criminal trial and how the appellant was linked to the death of the deceased, submitted that the prosecution has established the case of culpable homicide against the appellant beyond reasonable doubt as all the constituent ingredients of the offence were sufficiently proved before the trial court.Learned counsel further submitted that although no direct eye witness account of the gruesome murder of the deceased was available to testify for the prosecution, the prosecution was able to call in circumstantial evidence to establish a direct nexus between the death of the deceased and the act of the accused person which caused the death.Learned counsel submitted that the efficiency of circumstantial evidence in proving cases beyond reasonable doubt was espoused by the Supreme Court in Amusa Opoola Adio and Anr vs. The State (1986) 4 SC, 194 at pp,. 219-220 per Oputa JSC. Learned counsel went on to contend that the appellant wrongly contended in his brief of argument that there was no link between the death of the deceased and the act of the appellant.The contention of the learned counsel for the appellant as adumbrated above, learned respondent's counsel went on, cannot stand the evidence led by the prosecution before the trial court. In the peculiar circumstance of this case, one pertinent question that should bother the mind of a reasonable tribunal is why did the accused/appellant who came to visit his wife at his in-law's place decide to escape at the hour of the night without any ceremony' Of course, the only plausible answer to the above poser is that he decides to escape after the murder of the deceased, learned counsel further contended.TO BE CONTINUED
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