➥ CASE SUMMARY OF:
Haruna Alhaji Galadima v. The State (2017) – SC
by “PipAr” Branham-Paul C. Chima.
➥ COURT:
Supreme Court – SC.70/2013
➥ JUDGEMENT DELIVERED ON:
Friday, the 15th day of December, 2017
➥ AREA(S) OF LAW
Culpable homicide;
Proof beyond reasonable doubt.
➥ PRINCIPLES OF LAW
⦿ PRELIMINARY OBJECTION IS TO BE TAKEN FIRST BEFORE ANY STEP IN THE PROCEEDING
Generally, the rules of this Court allow a respondent to rely on a preliminary objection to the hearing of the appeal. The purpose of the objection is to bring the appeal to an end after being discovered to be incompetent and or fundamentally deceptive. In either case, it will be unnecessary to continue with the appeal once an objection is raised, without disposing of same. In other words, the Court is expected to deal with and dispose of a preliminary objection once raised by a respondent before taking any further step in the appeal. See; General Electric Company Vs. Harry Ayoade Akande & Ors (2010) 12 (Pt.2) SCM 96; Lamidi Rabiu Vs. Tola Adebajo (2012) 6 SCNM 201; Udenwa & 1 Ors Vs Uzodinma & 1 Ors (2012) 12 (Pt.2) 472 at 483. — O. Ariwoola, JSC.
⦿ GROUNDS WHERE NO ISSUES ARISE FROM ARE DEEMED STRUCK OUT
It is trite that by the rules of practice and procedure, in particular, of the appellate Courts, appeals are to be determined on the issues distilled from the competent grounds of appeal raised against the judgment being appealed. Therefore, any ground of appeal from which no issue has been formulated is deemed to have been abandoned and is liable to be discountenanced and struck out by the Court. Indeed, any such ground is lifeless and may not need a specific order to have it struck out yet should still be struck out. In this appeal, no issue has been formulated from grounds 4, 5, 6, 7 & 8 of the Amended Notice of Appeal. Meaning that those grounds are deemed abandoned. Accordingly, the said grounds 4, 5, 6, 7 & 8 are struck out. — O. Ariwoola, JSC.
⦿ MEANING: HOMICIDE & 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. However, culpable homicide means a wrongful act that results in a person’s death but 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. — O. Ariwoola, JSC.
⦿ THREE INGREDIENTS NECESSARY TO SUCCEED IN AN ACT OF HOMICIDE
It is settled law that to succeed in a charge of culpable homicide 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 the death has been caused by the accused; (c) That the act of the accused was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act. See; 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. 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 it in order to succeed with the charge. — O. Ariwoola, JSC.
⦿ PROOF BEYOND REASONABLE DOUBT DOES NOT PROOF BEYOND SHADOW OF DOUBT
However, the required proof beyond reasonable doubt which the prosecution is expected to show does not mean proof beyond all shadow of doubt and the evidence adduced by the prosecution is strong enough against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence; “of course it is possible but not in the least probable,” then the case is proved beyond reasonable doubt. See; Jimoh Michael Vs. The State (2008) 13 NWLR (Pt. 1104) 361; (2008) 10 SCM 83; (2008) 34 NSCQR (Pt.11) 700. — O. Ariwoola, JSC.
⦿ WHERE THERE ARE MATERIAL CONTRADICTIONS IN PROSECUTION CASE, DOUBT IS RESOLVED IN ACCUSED FAVOUR
There is no doubt that where there are contradictions in the testimonies of the prosecution witnesses on a material fact and the said contradictions are not explained by the prosecution through any of its witnesses, it behoves the trial Court not to speculate on or profer the explanation for such contradictions and thereby pick and choose from the evidence of the prosecution witnesses that which to believe. See; Boy Muka & Ors Vs. The State (1976) 9 & 10 SC 305; Christopher Arehia & Anor Vs. The State (1982) NSCC 85; (1982)4 SC 78. Generally, the law is settled that where there are material contradictions and inconsistencies in the evidence of the prosecution, the accused is entitled to be given the benefit of the doubt so created as a result of the inconsistencies. See; Onubogu Vs. The State (1974) 9 SC.1; Nwabueze Vs. The State (1988)4 NWLR (Pt.86) 16. However, it is trite law that for inconsistency or contradiction in evidence to negatively affect its veracity, such inconsistency and contradiction must be materially significant as to affect negatively the overall case of the prosecution, otherwise such insignificant inconsistency or contradiction will be discountenanced by the Court. See; The State Vs. Azeez & Ors (2008) 8 SCM 175; (2008) 4 SC 188; Dibie & 2 Ors Vs. The State (2007) 7 SCM 101; (2007) 3 SC (Pt.1) 176; Stephen John & Anor Vs. The State (2011) 12 (Pt.2) SCM 238.
⦿ THE PROSECUTION NEED NOT CALL A HOST OF WITNESSES
There is no doubt that the defence is not to determine how many witnesses the prosecution will call to testify in Court. The State is at liberty to call only one witness or as many as it desires as long as the testimony of a sole witness is sufficient to establish the ingredients to the charge. See; Bayo Adelumola Vs. The State (1988) NWLR (pt.73)683; (1988) LPELR 119 (SC). — O. Ariwoola, JSC.
⦿ PROOF BEYOND REASONABLE DOUBT MEANS ESTABLISHING GUILT BY COMPELLING EVIDENCE
Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See Miller V. Minister of Pensions (1947) 3 ALL ER 373, Nasiru V. The State (1993) 7 NWLR (pt. 307) 511; Fabian Nwaturuocha V. The State (2011) 6 NWLR (pt. 1242) 170. — O. Ariwoola, JSC.
⦿ MEANING OF FACTS IN ISSUE
Facts in issue, as defined in Section 258 of the Evidence Act 2011: Includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows. A particular fact can only be said to be in issue when its assertion by a Party is denied by the other and it becomes a fact in dispute. So, an issue is said to be joined on a particular fact making its proof necessary when its assertion is disputed by the opposing party- see Mohammed & Anor V. State (2007) 11 NWLR (pt 1045) 303. — A.A. Augie, JSC.
⦿ ONLY IN EXCEPTIONAL CASES WILL COURT INTERFERE IN FINDINGS OF FACT
When the appeal is predicated on the question of facts, concurrently found by the Courts below, the attitude of this Court is well settled. This Court will not interfere with those findings of facts except when appellant shows special or exceptional circumstances justifying the interference. Such special or exceptional circumstances include the showing either that there was miscarriage of justice; or a serious violation of some principles of substantive or procedural law; or that the findings of fact are perverse, in the sense that they do not at all flow from the totality of the evidence at the trial and or that the findings are unreasonable. See ENANG v. ADU (1981) 11-12 SC 25 at 42; LOKOYI v. OLOJO (1983) 8 SC 61 at 73; OJOMU v. AJAO (1983) 9 SC 22 at 53; IBODO v. ENAROFIA (1980) 5-7 SC 42; AKAYEPE v. AKAYEPE (2009) 11 NWLR (pt. 1152) 217 SC. Notwithstanding this stance of this Court, this Court is still being perpetually inundated by appeals predicated solely on concurrent findings of facts by Courts below to this Court. The connivance of legal practitioners in this regard cannot be ruled out; particularly by those desperately wanting to make up their qualifying appearances in this Court to enable them apply for the award of the privilege of Senior Advocate of Nigeria. The sooner the balance between this privilege and the congestion in, or the work load of, this Court was struck the better for this Court and those seeking to be conferred the privilege. I say no more for now. — E. Eko, JSC.
⦿ JOINT COMMISSION OF CRIME – COMMON INTENTION IN EXECUTION PROVES GUILT
The law on a joint commission of crime and the liability or criminal responsibility of each person who participated in the joint act is thus, as restated by this Court in GODWIN ALAO v. THE STATE (2015) LPELR -24686 (SC)- Where more than one persons are accused of a joint commission of a crime, it is enough that they all participated in the crime. What each of the participants did in furtherance of the commission of the crime is immaterial. The mere fact that (there exists) the common intention manifesting in the execution of the common object is enough to render each of the accused person in the group guilty of the offence. See NWANKWOALA v. STATE (2006) 14 NWLR (pt.1000) 663; IKEMSON v. STATE (1989) 3 NWLR (pt. 110) 455; OYAKHIRE v. STATE (2001) 15 NWLR (pt. 1001) 157 … The death of the deceased is conceded. It is no longer in doubt. Available evidence proves beyond reasonable doubt that the appellant was among those who attacked Safiya Nomau with these weapons by which fatal injuries were inflicted on her. She died in consequence of the attack and the injuries inflicted on her by the group the appellant belonged. I cannot see the doubt created as to whether the death was the act of the appellant. The mere fact that the appellant jointly participated in the attack on the deceased manifesting a common intention in the execution of the common object is enough to render him guilty of the offence jointly committed with the others. — E. Eko, JSC.
⦿ PROSECUTION OWES NOT THE COURT A DUTY TO CALL HOST OF WITNESSES
The prosecution does not have the obligation to put forward two versions of one incident. See ONUBOGU v. THE STATE (supra); BOY MUKA v. THE STATE (supra); ALFRED ONYEMENA v. THE STATE (1974) ALL NLR 522. Once the prosecution can prove their allegation beyond reasonable doubt with the witnesses they have screened and selected, they would have discharged the burden of proof cast on them by law. They owe neither the Court nor the accused the duty to call a host of witnesses, or a particular witness. — E. Eko, JSC.
⦿ ONLY MATERIAL CONTRADICTIONS ARE IMPORTANT TO SET ASIDE DECISION
The contradiction complained about by the learned counsel for the Appellant is very insignificant. It is not any and every minor discrepancy or inaccuracy in the evidence of prosecution witnesses that amount to contradiction, especially where the witnesses are in substance saying the same thing. It is only material contradiction that is important. See The State vs Azeez & Ors 4 SC 188: Dibie & 2 Ors vs The State (2007) 3 SC (Pt. 1) 176. — P.A. Galumje, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Olukayode Ariwoola, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Tajudeen Oladoja Esq.
⦿ FOR THE RESPONDENT
Mr. Suleh Umar Esq.
➥ CASE FACT/HISTORY
The appellant and two others were arraigned before the Jigawa State High Court, Kazaure Judicial Division, Coram: Tahir, J. for the offence of culpable homicide punishable with death, contrary to Section 221(b) and Section 246 of the Penal Code Law.
The prosecution called five witnesses in order to prove its case, while the three accused persons testified in their defence respectively, but did not call any other witness. Upon conclusion of the testimonies, both the counsel prosecuting and the defence counsel addressed the Court. In its considered judgment, the trial Court found the three accused persons guilty of the offence of culpable homicide punishable with death as charged and each was accordingly sentenced to death as required by the appropriate law.
The three convicts appealed to the Court below on eight (8) Grounds of Appeal. They also filed a joint brief of argument and urged the Court below to allow their appeal, set aside their conviction and sentence. The appeal was found to lack merits and was accordingly dismissed by the Court below in its unanimous decision.
Further aggrieved and dissatisfied with the judgment of the Court below led the instant appellant who was the 2nd accused/appellant to appeal to this Court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether in view of the evidence adduced at the trial Court, the Court of Appeal was right to have affirmed the decision of the trial Court that the charge of culpable homicide punishable with death was proved against the appellant beyond reasonable doubt as required by laws?
RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT THERE ARE NO INCONSISTENCIES IN THE TESTIMONIES OF THE PROSECUTION WITNESSES
“In this case, I am unable to see any inconsistency or contradiction significantly material in the testimonies of the prosecution witnesses on the material fact in issue required to establish the charge against the appellant. Indeed, this Court has laid it down in several cases that the contradictions in the testimony of prosecution witnesses that will weigh on the mind of the Court must be such as are fundamental to the real question before the Court; the contradictions must be material and go to the root of the case to create a reasonable doubt in the mind of the Court. See; Eze Ibeh Vs. The State (1997) 1 NWLR (pt.484) 632; (1997) LPELR 1389 (SC).”
“The prosecutions evidence against the appellant as can be garnered from the record of appeal shows that there were eye witnesses who saw the appellant and others beat up the deceased on the disputed land. PW2 testified that the appellant and two of his brothers beat the deceased with sticks and hoe. The PW2 also saw the attackers with a spear. PW4 also saw this gruesome murder of the deceased. PW3, the village head who permitted the deceased to erect a hut on the land also testified. There was indeed abundance of evidence before the trial Court which proved that the appellant took part in the killing of the deceased.”
B. THAT FAILURE TO CALL THE HUSBAND OF THE DECEASED DID NOT AFFECT THE PROSECUTION’s CASE
“I cannot see how failure of the prosecution to call the husband of the deceased and one of the policemen that investigated the case has negatively affected the prosecution’s case. In other words, this did not have effect on the findings of the trial Court as to who did what that led to the death of the deceased.”
.
.
.
✓ DECISION:
“In the final analysis, this appeal fails and is accordingly dismissed. In the circumstance, the judgment of the Court below delivered on 8th day of February, 2013 which affirmed the conviction and sentence of the appellant by the trial Court is hereby affirmed. Appeal is dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
