3PLR – DARE KADA V THE STATE

Published by Law Nigeria Admin at May 8, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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DARE KADA

V

THE STATE

IN THE SUPREME COURT OF NIGERIA

1ST NOVEMBER, 1991

APPEAL NO.22/1990

3PLR/1991/75 (CA)

BEFORE THEIR LORDSHIPS

UWAIS, Ag. C.J.N;

KAWU, J.S.C.

WALI, J.S.C.

OLATAWURA, J.S.C.

NWOKEDI, J.S.C.

REPRESENTATION

Chief Eman. C. Akwiwu [with him Miss A.A.Akwiwu] – for the appellant

M.B. Danyaya, D.PP Niger State, [with him M.S.Gana Law Officer] – for the respondent

OTHER ISSUES

CRIMINAL LAW AND PROCEDURE:- Proof of murder – Cases where medical report is of the essence – Effect of failure to properly secure the identification of body of person on whom an autopsy is performed – Inadequacy of the final medical report as corroboration for case of prosecution – Duty of court in the resolution of doubts arising therefrom

CRIMINAL LAW AND PROCEDURE:- Murder – Proof of – When a trial-within-trial is required – When an accused person can be convicted of a lesser offence

ETHICS – LEGAL PRACTITIONER:- Duty of diligence – Need to avoid shoddiness in the conduct of criminal cases

HEALTHCARE AND LAW:– Emergency healthcare services – Failure to afford a critically injured person (with machete cut to head) access to identifiable medical care for at least two weeks thereafter – Prosecution’s effort to convict person who caused injury for murder – How treated – Implication for justice administration

HEALTHCARE AND LAW:– Autopsy report and murder prosecution – Where medical examiner failed to observe necessary procedure as to identification of corpse and ascertainment of bio-data – Where final report contained gaps and facts irreconcilable with the case of the prosecution – Implication for justice administration

CHILDREN AND WOMEN LAW: Women and Justice Administration – Women in Business – Operator of a beer rendezvous center – Woman who along with children witnessed a grievous assault of a family business patron leading to his death – How treated

PRACTICE AND PROCEDURE – APPEAL:– Findings of trial court – When deemed perverse – Whether Court of Appeal would be duty bound to interfere with same

PRACTICE AND PROCEDURE – EVIDENCE:– Expert evidence – Need to go to court with notes to refresh memory – Standard of proof in criminal cases – Reason for

MAIN JUDGEMENT

WALI, J.S.C. (Delivering the Lead Judgment):

The appellant, Dare Kada was tried in the High Court of Justice, Minna, Niger State, on the following charge:

“That you on or about the 5th day of June, 1983, at Akare Village near Zungeru within the Niger Judicial Division, did commit culpable homicide punishable with death in that you caused the death of KADUNA MAGAJI by striking him on the head with a cutlass with the knowledge that his death would be the probable consequence of your act and thereby committed an offence punishable under section 221 (b) of the Penal Code.”

He pleaded not guilty and the prosecution called nine witnesses to prove the charge. The appellant gave evidence and also called one other witness in his defence.

The learned trial judge, after reviewing the evidence adduced before him, found the appellant guilty of culpable homicide under section 221 (b) of the Penal Code as charged and sentenced him to death. He appealed to the Court of Appeal, Kaduna Division and in dismissing his appeal the court concluded:

“From the evidence adduced before the court by the prosecution and the review of the same by the learned trial judge I am satisfied that the appellant has been rightly convicted for the offence charged. It is without any doubt that the wound inflicted on the Head of the deceased was the cause of his death. I see no ground therefore for disturbing the judgment of the learned trial judge. The appeal is dismissed.”

The appellant has now further appealed to this court against his conviction.

Before I go to consider the appeal, I find it is desirable that I state the resume of the facts involved in the case.

The appellant, Dare Kada, had on the afternoon of 5th June, 1983 gone to the house of Busari Adio (PW2) in Akare Village, near Zungeru, Niger State. The appellant was later joined by Kaduna Magaji (the deceased), as the house was a rendezvous for them and others for drinking beer. Both the appellant and Kaduna Magaji started conversing in Fulfulde (Fulani language), a language which neither the p.w.2 nor his wife understood. It was then that p.w.2 collected N2.00 from the appellant and went into his room to get a change for him.

No sooner had P.W2 gone into his room, the appellant gave Kaduna Magaji a cut on his head with a cutlass in his possession which left him lying on the ground with blood gushing out from the wound sustained as a result thereof. Both the wife of P.W.2 Mrs. Ashawa Adio (p.w3) and the children who were at the scene at the time, having observed what happened, raised an alarm by shouting. P.W.2 rushed out of his room and saw what happened. He pursued the appellant who had then taken to his heels. He followed him up to the main market and when the appellant entered the bush, p.w.2 gave up the chase. It was then he met Alhaji Ndatsu (p.w4) and narrated to him what happened. P.W.4 took p.w.2 on his motorcycle back to his house. He saw the deceased, still alive, lying on the ground.

As a result of what he saw, he again took p.w.2 to the house of the village head to whom they reported the incident. The village head instructed p.w.2 to go back to his house to stay with the injured while he sent p.w.4 to Zungeru to report the incident to the police. In the same night p.w.4 brought a policeman (p.w.5) to the house of p.w.2, and having seen what happened, he sent p.w.4 to get him a motor vehicle with which another policeman, Tevi, took the injured to Zungeru Hospital. The appellant was arrested three days after the incident.

As required by the Rules of this court, both the appellant and the respondent filed and exchanged brief of arguments. Each formulated issues for determination in his brief. The following issues were formulated by the appellant:

Was the Court of Appeal right in supporting the conviction of the appellant by the trial court under section 221 (b) based on the evidence of p.w.s 2, 3, 4, 9 and the appellant’s statement exhibit 2.

(2) Must the extra-judicial statement of an accused person to the Police constitute an inflexible test of the veracity of his evidence on oath in Court in his own defence.

(3) When is the statement or evidence of an accused person confessional?

(4) Was the Court of Appeal justified in law to pick and choose between the conflicting evidence of p.w.3 and p.w.9 respectively.

(5) Having regard to the totality of the evidence before the court can the prosecution rightly be said to have proved the case against the appellant beyond all reasonable doubt?”

The respondent formulated the following two issues:

“(a) Whether the Court of Appeal rightly affirmed the conviction and sentence of the appellant for the offence culpable homicide contrary to section 221 (b) of the Penal Code despite the heavy reliance placed on the evidence of p.w.9 by the learned trial judge?

(b) If the answer to “a” above is in the negative, whether there are other evidence on which the Court of Appeal could have affirmed the conviction and sentence of the appellant by the learned trial judge.”

With the leave of this Court, the appellant filed 4 additional grounds of appeal. Issues 2 and 3 formulated in the appellant’s brief of argument are covered by ground 2 of the additional grounds while issues 1, 4 and 5 are equally covered by additional grounds 1, 3, 4 and the original ground. Issues 1, 4 and 5 of the appellant’s brief have been encompassed in issues 1 and 2 of the respondent’s brief as both are questioning the adequacy of the evidence and the correctness of the findings of fact by the learned trial judge which were subsequently affirmed by the Court of Appeal.

It was the submission of learned counsel for the appellant that neither p.w.2 nor p.w.3 saw the appellant inflict the alleged mortal injury on the head of the deceased. It was his submission that there was a fight between the appellant and the deceased as a result of which the latter struck the former with a stick while the former retaliated by striking the latter on the head with a cutlass. On the evidence viva-voce of the pathologist (p.w.9) and his report Exhibit 1 learned counsel submitted that neither can any be related to or connected with acts of the appellant nor to his victim Kaduna Magaji. He made copious reference to some parts of evidence of p.w.2, p.w.3 p.w.4, p.w.5 and p.w.6 to buttress his above submissions. He also relied on the following cases:

Christopher Onubogu v. The State (1974) 11 S.C. 18,

Christopher Arehia v. The State (1982) 4 S.C. 74;

Omoshodion v. The State (1987) 1 N.W. L.R. 594.

He concluded his arguments by urging this court to hold that the concurrent findings of the trial court and court below are perverse and cannot therefore be sustained having regard to the evidence. The following cases were cited in support:

Nmang v. Adu (1961) 11 – 12 S.C. 25; Lokoyi v. Olojo (1983) 8 S.C. 61 at 68 – 72; Ojomu v. Alao (1983) 3 S.C. 156 and

Alade v. Alemalake(1988) 1 N.W.L.R. 207 at 212.

It was further argued by learned counsel that both the trial court and the Court of Appeal misdirected themselves in accepting and relying on Exhibit 2 in their conclusions that the appellant struck Kaduna Magaji on the head with a cutlass without provocation which caused his death. He submitted that both Exhibit 2 and the appellant’s evidence in Court did not amount to confession of the crime with which he was charged and therefore the Court of Appeal was wrong in its conclusion that:

‘The appellant himself admitted both in his confessional statement and in the evidence in Chief which he gave for his defence that he struck the deceased with a cutlass.”

Learned counsel for the respondent rightly in my view did not waste time in agreeing with the counsel for the appellant that the appellant’s conviction under section 221 (b) of the Penal Code could not be sustained having regard to the evidence. He submitted that a thorough examination of the evidence adduced did not establish that Kaduna Magaji was taken either to Zungeru Hospital or the General Hospital, Minna. He too made copious reference to portions of the evidence, particularly that of p.w.2, p.w.3 p.w3 p.w.5 and p.w.9 and relied on the following cases:-

Okoro v. The State (1988) 5 N.W.L.R. (part 4) 2 N.C.L.R. 23 at 26;

Obiode and Ors. v. The State (1970) 1 .All N.L.R. 35 at 40;

Muttau Bakare v. The State (1987) 1 N.W. L.R. 579;

Okonii v. The state (1987) 1 N.WL.R. 659

in urging that the conviction could not be sustained by the evidence. He urges this court to allow the appeal.

The two issues raised in the appellant’s brief question the adequacy of the evidence of p.w.2, p.w.3, p.w.4, p.w9 and Exhibit 2 to justify the appellant’s conviction.

Although p.w.2 and p.w3 said in their evidence that they did not understand the language spoken by the appellant and Kaduna Magaji to say whether or not the two were quarreling at the time the incident occurred, it is evident from the contents of Exhibit 2 that they were engaged in altercation. As a result of these vigorous contentions, Kaduna Magaji hit the appellant twice with a stick while the latter retaliated with a strike on the head of the former, with a cutlass. The contentions in Exhibit 2 were accepted by the learned trial judge.

Although learned counsel for the appellant attacked Exhibit 2 in that it was wrong for the learned trial judge to make the finding that it was a confessional statement of the appellant that he struck Kaduna Magaji with a cutlass, I find no substance in this attack. The voluntariness of Exhibit 2 was tested by conducting a trial-within-trial and I am satisfied that it was made by the appellant voluntarily under caution. The only issue that needs consideration is whether the injury Kaduna Magaji received from the appellant can be related to the death of the former.

Under the Penal Code, Cap. 84, where the death of a human being is in issue before a court of trial, the prosecution’s duty is to prove the following:

that the death of a human being has actually taken place.
that such death was caused by the person being accused.
that the act was done with the intention of causing such bodily injury as:

the accused knew or had reason to know that death would be probable and not the likely consequence of his act; or

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.

See page 149 of Notes on the Penal Code Law 3rd Edition by S.S. Richardson. In this appeal and on the record before us the only evidence directly stating that Kaduna Magaji is dead was given by the d.w.1, d.w.2 (the appellant) and p.w.5. Neither p.w.2, p.w.3 nor p.w.4 stated that Kaduna Magaji died. How, when and where he died still remains a mystery as nobody testified to that effect. However, the prosecution made an effort, albeit fruitless to connect the death of Kaduna Magaji with the act of the appellant. In that regard, they relied on the evidence of p.w.2 and p.w.3 who testified that the appellant struck the deceased with a cutlass on the head causing him bleeding injury. They did not describe the nature of the wound and the part of the head struck. PW.4 and p.w.5 also said they saw bleeding wound on the head of the deceased and that at the time they saw the deceased in the house of p.w. 2 he was lying on the ground. None of them described the nature of the wound or the condition of the deceased, that is whether or not he was conscious at the time they saw him. The only other witness that could have provided this vital evidence was Police Tevi who was instructed by p.w.5 to take the deceased to Zungeru Hospital, but he was not summoned to testify. There is even no evidence that the deceased was in fact taken to Zungeru Hospital as neither p.w.5 nor p.w.6 said they saw the deceased in that Hospital either before or after his death. He is a vital witness to the prosecution’s case. See lbeakanma v. The Queen (1963) 2 S.C. N.L.R. 191 at 195.

6 is the Police Sgt. who handled the investigation of the case. His evidence is that he read in the case diary handed over to him that one Dare Kada had committed murder and that the body of the deceased was deposited in the General Hospital, Minna. He said:

“There was a deceased in the case after reading the case Diary, when the deceased was cut at Akare, he was taken to the Health Central at Zungeru and later to the General Hospital here in Minna. I came to know this when I asked Cpl Yohana Tuwo about the position of the deceased. When I was told this, I filed a coroner form and left for the General Hospital. The medical officer performed a post-mortem examination and later gave me a report.”

Here again, there is no evidence that the dead body the p.w.6 saw in Minna General Hospital was that of Kaduna Magaji as no evidence was led to show that the corpse was taken there and was identified to him as that of Kaduna Magaji. It is not even clear from the evidence whether Kaduna Magaji died in Zungeru Hospital. All that p.w.6 said about the death and identity of Kaduna Magaji is hearsay and therefore of no probative value as p.w.5 who narrated the story of the death of Kaduna Magaji to him did not say that he saw him dead at the scene of the incident or his corpse anywhere thereafter.

This uncertain situation was further compounded by the evidence of p.w.9 and exhibit 1 which is the written report on a corpse described as that of Kaduna Magaji and in which p.w.9 gave the probable date of death as 20/6/83. Exhibit 1 did not mention by whom the corpse was identified to p.w.9 as that of Kaduna Magaji. When p.w.9 testified he said:

“On the 20/6/83, I was called to come and perform a post-mortem examination on a fresh body brought from Zungeru covered with a blanket. The body was that of a male adult. The body was identified by the deceased’s brother the name of whom I cannot now remember.

During the examination, I found a deep cut on the head which cut through the bone and the protrusion of the brain matter sucked in blood. The edge of the laceration was sharp which indicates that it was inflicted by a sharp instrument. There were bleeding through the brain in the skull. These findings added together lead to the conclusion that the man died as a result of severe head injury with severe blood-loss. The name of the deceased was Kaduna Magaji. I was called by the principal medical officer to perform the post-mortem examination.”

When cross-examined on his evidence p.w.9 said:

“The wound at that time indicated that it was caused some few hours before it was brought to the Hospital. This case is not one of yesterday but all I know is that the wound was caused less than a day before it was brought to the Hospital … The wound I saw on that day the patient could not have survived 6 hours … from the wound, I saw such wound was not compatible with life for more than one hour.”

PW.9 was emphatic in his evidence that he would be surprised if he was told that the wound he saw that day was three weeks old. The evidence leaves no room for doubt that the body examined was not that of Kaduna Magaji. This is in contrast with the other evidence adduced by the prosecution, for the evidence of p.w2, p.w.3, p.w4, and p.w.5 showed that Kaduna Magaji was injured by the appellant on 5/6/83. This evidence is in consonance with Exhibit 2 and the appellant’s evidence. So the issue here is not which part of the prosecution’s evidence the learned trial judge could accept and believe and which he could reject, but that it is both inadequate and contradictory on vital issues to wit, the identity of the deceased and the cause of death. It is not possible in the circumstances of this case for the learned trial judge to choose the accuracy of one witness against the other See William v. The State (1975) 9-11 S.C. 139.

Where an accused person is being tried for a capital offence like culpable homicide, it is a condition precedent that the connection between the act of the accused causing the death of the deceased and the death caused thereby, must be established beyond reasonable doubt. It may not necessarily be immediate, but it is indispensable that it must be so connected with the act of violence of the accused by either direct evidence of such cogent and irresistible circumstantial evidence. Where the nature of the connection between the act and the death is in itself obscure, then the condition is not fulfilled and the accused is entitled to be discharged. See Nwokedi (AIias Anazonwu) v. The State (1977) 3 S.C. 35. In the circumstances of this case, the consideration of the issue of provocation vis-a-vis the charge under section 221 (b) of the Penal Code is not necessary in my view since the Identity of the deceased and the cause of death have not been proved. It was therefore wrong of and a misdirection by the learned trial judge to have concluded that it was the Injury caused to Kaduna Magaji by the appellant that caused his death. It was equally wrong of him to have concluded that the identity of the corpse examined by p.w9 was established. Where a trial court has drawn wrong conclusion from accepted or proved facts which facts do not prove the prosecution’s case, the Court of Appeal has a duty to interfere with such findings because they are perverse. See:

Okor v. Uzoka (1978) 5 S.C. 77; Fayoinb v William (1956) 1 F. &C. 87; Amusa Adio and Anor v. The State (1986) 2 N.W.L.R. (part 24) 581.

The Court of Appeal was wrong to have affirmed the conviction and sentence passed on the appellant. The judgments of both the trial court and the Court of Appeal are set aside and in place, thereof a verdict of acquittal in favor of the appellant is hereby substituted. He is accordingly acquitted and discharged.

I wish however to comment on the most unsatisfactory manner the prosecution investigated and conducted this case. It was both most unsatisfactory, from want of experienced investigators and a competent prosecuting counsel. Cases involving loss of human lives resulting from criminal acts should not and must not be shabbily handled.

UWAIS, AG. C.J.N.:

I have had a preview of the judgment read by my learned brother, Wall, J.S.C. I entirely agree that this appeal has merit and that it should be allowed.

The charge to which the appellant pleaded not guilty in the High Court of Niger State, holden at Minna reads as follows:-

The evidence adduced by the prosecution and accepted by the learned trial judge (Gado, J.) is briefly that the appellant struck the deceased with a cutlass on the head, as a result of which the deceased suffered a cut on his head and bled profusely. None of the witnesses called by the prosecution prove that the deceased died on the scene of the incident or at any hospital. Nevertheless, the finding made by the learned trial judge is as follows:

“In this case, there is ample evidence both from the prosecution witnesses and from the accused himself that he struck the deceased with his cutlass. And there is the evidence of p. w.4, Alhaji Ndatsu, that he and the policemen that went to the scene of the offence conveyed the deceased to the Zungeru Hospital in a motor vehicle. This piece of evidence was corroborated by the evidence of p.w.5 Cpl. Yohana Tuwo, the first Investigation Police Officer. The second IPO in the case Detective Sgt. Jimoh Maliki, also told the court in his testimony that Cpl. YohanaTuwo who first handled the investigation briefed him on the position of the case and informed him that the deceased was first taken to the Health Centre at Zungeru and later to the General Hospital, Minna. On the strength of this, he filled a coroner’s Form and took it to the General Hospital for Post mortem examination. PW.9, Doctor Suleiman Nda Ibrahim, on the other hand, told the court in his evidence that on the 20th of June, 1983, he was in charge of post mortem examination and that on that day he performed a post-mortem examination on a fresh body brought from Zungeru and that the body was identified to him by the deceased’s brother whose name he could not recollect at the time he gave evidence. He however, remembered the name of the deceased as Kaduna Magaji. Answering a question on cross-examination, the witness said “we do not perform more than one post-mortem examination a day. On that 20th of June, 1983, it was only this one that I did.

I did not write in my report the name of the person who identified the corpse to me. The corpse was received and examined on the same day.”

Thus, assuming that lack of identity or absence of the body of the person killed is fatal to the prosecution case even if there were other available evidence in proof of the commission of the offence, the foregoing facts show no doubt as to the identity of the person killed by the accused and examined by the medical officer. Furthermore, the evidence of both the prosecution witnesses and the accused himself disclosed that the accused struck the deceased on the head with a cutlass. The evidence of Suleiman Nda Ibrahim, the Medical Officer, who examined the corpse also corroborated their testimonies. For he said, “During the examination, I found a deep cut on the head which cut through the bone and the protrusion of the brain matter soaked in blood. The edge of the laceration was sharp which indicates that it was inflicted by a sharp instrument. These findings added together lead to the conclusion that the man died as a result of severe head injury with severe blood-loss.” (Italics mine).

Following his conviction as charged, the appellant appealed to the court of Appeal where he raised the following issues:-

Was the learned trial judge right in convicting the appellant under Section 221 (b) of the Penal Code without making a finding as to whether it was the appellant’s act which in fact caused the death of the deceased?

Was the learned trial judge right in law in ignoring the evidence of p.w.9 which evidence if properly understood pointed to an act different from that of the appellant as the cause of death of the deceased.
Was the learned trial judge right in law in convicting the appellant of the offence of culpable homicide punishable with death under section 221 (b) of the Penal Code having regard to the totality of the evidence before him.”

In its judgment, the Court of Appeal (Mohammed, Aikawa and Ogundere, JJ.C.A.) remarked thus (per Mohammed, J.C.A.)

“There is no dispute about the fact that the appellant did attack the deceased with a cutlass on the head, on 5th June, 1983. The appellant himself has admitted both in his confessional statement and in the evidence-in-chief which he gave for his defence that he struck the deceased with a cutlass. The doctor’s evidence which I shall consider in the second issue for the determination of this appeal has confirmed that the deceased met his death through injuries inflicted on his head with a sharp instrument.”

But it was submitted on behalf of the appellant that “the date given by the witnesses when the appellant was said to have attacked deceased with a cutlass was 5th of June, 1983, whereas the doctor informed the (High) court that he conducted the post-mortem examination on 20th June, 1983. Since the doctor had reported that the wound he saw on the body of the deceased could not have been three weeks old there is doubt as to whether it was the act of the appellant on 5th of June, 1983 which resulted in the death of the deceased.” On this the Court of Appeal found as follows (per Mohammed, J.C.A.)

“I have carefully considered the submission of the learned counsel for the appellant on the issue and I agree that the doctor is definitely wrong to say that the wound was inflicted a few hours before he performed the post-mortem examination. It is quite clear that from the evidence that the attack was made on the 5th of June and the post-mortem examination was conducted on the 20th June. However, the doctor did find that the injuries inflicted on the deceased caused his death…

In the case in hand there is overwhelming evidence, including the voluntary confectionery (sic) statement made by the appellant that that he struck the deceased with a cutlass on the head. The deceased collapsed on the ground and was rushed to the hospital where after 15 days admission he died…

I have no reason in my mind to doubt that the death of the deceased, in the case in hand, was caused by the wound inflicted by the appellant on the deceased was the cause of his death. The fact that the doctor got confused about the dates and the time of the injury has not affected the overwhelming evidence on the cause of death … From the evidence adduced before the (trial) court by the prosecution and the review of the same made by the learned trial judge I am satisfied that the appellant has been rightly convicted for the offence charged. … The appeal is dismissed.” (Italics mine)

In a further appeal to this court, the appellant formulated 5 questions for determination in his brief of argument which read thus:-

Was the Court of Appeal right in supporting the conviction of the appellant by the trial court under section 221 (b) based on the evidence of p.w. 2, 3, 4, 9 and the appellant’s statement exhibit 2.

(2) Must the extra-judicial statement of an accused person to the Police constitute an inflexible test of the veracity of his evidence on oath in Court in his own defence.

(3) When is the statement or evidence of an accused person confessional?

(4) Was the Court of Appeal justified in law to pick and choose between the conflicting evidence of p.w.3 and p.w.9 respectively.

(5) Having regard to the totality of the evidence before the court can the prosecution rightly be said to have proved the case against the appellant beyond all reasonable doubt.”

And the respondent, who has not supported the conviction, stated the following issues for determination in the respondent’s brief

Apart from the contentions in the briefs of argument no further argument was advanced by both learned counsel for the parties, who simply adopted their briefs. Some of the questions for determination raised by the appellant contain issues neither raised before nor considered by the Court of Appeal. They are being raised for the first time in this Court. The issues raised in the respondent’s brief of argument appear to me to be more appropriate for determining the appeal. It seems to me the issues simply raise the sole question: Whether there was sufficient evidence on which the appellant could have been found guilty of causing the death of the deceased beyond reasonable doubt. This is both of question of fact as well as law.

By the provisions of section 220 of the Penal Code, Cap. 89 of the Laws of Northern Nigeria, 1963 a person commits culpable homicide:

(1) by doing an action with the intention of causing death or such bodily injury as is likely to cause death, or

(2) by doing an act with the knowledge that he is likely by such act to cause death, or

(3) by doing a rash or negligent act.

It is common ground that the appellant struck the deceased with a cutlass on the head and caused him injury. Such an act was capable by virtue of the provisions of section 220 sub-sections (a) and (b) of the Penal Code of causing the death of the deceased. But the issue is: did the act, in fact, cause the death of the deceased? If the deceased had died on the spot soon after the injury was inflicted, by the nature of the injury, there could have been no doubt whatsoever, on the authority of Kato Dan Adamu v. Kano N.A., (1956) 1 F.S.C. 25 and Bakuri v. State (1965) N.M. L.R.163, that the appellant would have been guilty of causing the death of the deceased. However, by the evidence available that was not the case. There was no satisfactory evidence that the deceased was taken to a hospital at Zungeru or Minna or if there was, which I do not accept, there was no proof of identification of the corpse to the doctor that purportedly performed the post-mortem examination to determine the cause of the deceased’s death after 15 days of his suffering the injury caused by the appellant.

According to the prosecution evidence, p.w.5 Cpl. Yohana Tuwo, went to the scene of the incident together with PC. Tevi at Akare Village, where he saw the deceased lying on the ground with blood gushing from the deceased’s head. On the advice of a dispensary attendant to whose dispensary the deceased was taken, p.w.5 “detailed” PC. Tevi to take the deceased to Zungeru Hospital in a motor car. There is no evidence that PC. Tevi, in fact, took the deceased to Zungeru Hospital because PC. Tevi was not called to testify as to what he did with the deceased. PW.5 did not say anything more with regard PC. Tevi complying with his instructions. The learned trial judge wrongly held (as per the excerpt of his judgment above):

“And there is the evidence of p.w.4 Alhaji Ndatsu, that he and the policemen that went to the scene of the offence conveyed the deceased to the Zungeru Hospital in a motor car.”

None of the policemen gave such evidence and p.w4 that the trial judge held to have so testified did not in fact do so. His testimony reads thus

I went to Zungeru that night (of 5th June, 1983) at about 11.00 p.m and reported to the police at Zungeru. From there I and a policeman went to Akare Village that night. I conveyed only one policeman on my motorcycle. 1 was the only person who went to Zungeru that night and reported to the police. I took the policeman to the Village head and informed him that I had returned. The Village head then asked me to take the policeman to the place of the incident. I took the police to the scene of the incident. The police took the deceased to the Hospital in Zungeru. The police asked me to look for a vehicle for him to convey the deceased to the hospital and I did. That is all I know.”

The testimony of p.w4 did not go as far as to say that he accompanied the corpse of the deceased in the vehicle to the General Hospital at Zungeru. If p.w4 did not go with the body to Zungeru, his evidence that the body was taken to the hospital can only be hearsay and therefore inadmissible. The only available evidence was given by p.w.9, Doctor Suleiman Nda Ibrahim of the General Hospital Minna, who testified thus: –

“On the 20/6/83, I was called to come and perform a post-mortem examination on a fresh body brought from Zungeru covered with a blanket. The body was that of a male adult. The body, was identified by the deceased’s brother the name of whom I cannot remember… The name of deceased was Kaduna Magaji. I was called by the principal medical officer to perform the post-mortem examination.”

Suppose it is granted for the sake of argument that the deceased’s body was the one taken to the General Hospital, Minna (which I do not accept in view of the hiatus in the prosecution (evidence). The evidence of the identity of the deceased is unsatisfactory. The questions which follow are- who took the body from Zungeru to Minna? In the absence of the testimony of the brother of the deceased, who allegedly identified the corpse of the deceased to p.w.9, is the evidence of p.w.9 on identification not hearsay and, therefore, inadmissible? Did p.w9, in fact, prove that he examined the body of the deceased by merely referring to the name of the deceased as Kaduna Magaji? All these questions, which are not answered by the evidence adduced by the prosecution, raise serious doubt as to whether the deceased in fact died, and if he indeed died, that it was the wound which the appellant inflicted on him that cause his death. These are part of the ingredients of the offence of culpable homicide punishable with death with which the appellant was charged and which the prosecution have the onus to prove beyond reasonable doubt by virtue of section 138 of the Evidence Act, Cap. 112.

Moreover, if further unreliability in the case for the prosecution needs the pointed out, it would be found in the testimony of p.w.9 under cross-examination. For he said: –

“The corpse was received on the same day (20/6/83) and examined on the same day. The wound at that time indicated the it was caused some few hours before it was brought to hospital … all I know is that the wound was caused less than a day before it was brought to the hospital…

The wound I saw on that day the patient could not have survived 6 hours if it was freshly inflicted.” (Italics mine).

And while re-examined he stressed –

“I told the court that the nature of the wound I saw that a patient (sic) could not survived 6 hours … From the wound, I saw such wound was not compatible with life for more than one hour.”

But the evidence given by other prosecution witnesses, to wit: PW. 2, PW. 3, PWA, PW.5 and PW. 8 is that the incident of the accused striking Kaduna Magaji took place on the 5th day of June, 1983. That is 15 days before the doctor saw the corpse he examined on the 20th day of June, 1983. In the light of the foregoing testimony of p.w.9 under cross-examination and re-examination, the corpse examined by him could not have been that of the deceased.

It is for these and the reasons contained in the judgment of my learned brother, Wall, J.S.C. that I entirely agree with the submissions made by learned counsel for the appellant and the respondent that the conviction of the appellant as charged by the trial court cannot be sustained; and the Court of Appeal was in error to have done so. Accordingly, I hold, with respect, that the decisions of both lower courts are wrong. The decisions are hereby set aside. The conviction and sentence of death passed on the appellant are hereby quashed and instead I enter a verdict of not guilty. The appellant is acquitted and discharged.

KAWU, J.S.C.:

I have had the advantage of reading, in draft, the lead judgment of my learned brother, Wall, J.S.C., which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that, on the evidence adduced, it is unsafe to uphold the appellant’s conviction.

The prosecution evidence was that the act of the appellant that caused the death of the deceased took place on 5th June, 1983. It was alleged that on that day the appellant inflicted matchet cuts on the head of the deceased, the injuries of which caused his death. But this testimony was contradicted by that of p.w.9 the Doctor who performed the post-mortem examination on 20th June, 1983 who in his evidence swore that the wound on the body was caused some few hours before it was brought to the Hospital.

Furthermore, this witness did not know the name of the person who identified the body to him. The question therefore is – Was the body examined by p.w.9 on 20th June, 1983 that of Kaduna Magaji or not? There was no conclusive and cogent evidence that it was.

In the circumstances, on the evidence adduced, the trial court should have come to the conclusion that the identity of the deceased had not been established. I will also allow the appeal, set aside the appellant’s conviction and substitute a verdict of acquittal.

OLATAWURA, J.S.C.:

I had the advantage of reading in draft the judgment of my learned brother, Wall, J.S.C. just delivered. My learned brother has stated the facts; I need not repeat them except where they will affect this issue of whether an offence had been committed.

What is now in issue is whether on the evidence before the trial court the appellant could not have been convicted of a lesser offence. From the briefs of counsel on both sides the counsel did not advert their minds to this issue. They rightly, I may say, concentrated on the evidence concerning the charge. The charge of culpable homicide under section 221(b) of the Penal Code failed because of the failure of the prosecution to produce a witness who identified the body of the deceased to the doctor (p.w.9) Dr. Suleiman Nda Ibrahim. Quite apart from this fatal omission on the part of the prosecution, it would appear that no reasonable tribunal should rely on the evidence of the doctor with regard to the time the deceased died and the nature of the wound inflicted on the deceased. It is common ground that the deceased Kaduna Magaji was attacked by the appellant on 5th day of June, 1983 with a cutlass in a beer parlour. Although he did not die immediately, the wounds he received were severe, grievous and savage. These wounds the prosecution claimed subsequently led to his death. He was carried to the Hospital Zungeru that night. The deceased had matchet cuts on the head and according to p.w.4 blood was gushing out from the head of the deceased. In order to demonstrate the unreliability/worthlessness of the doctor’s evidence, I reproduce the evidence of some of the prosecution witnesses:

3 PW. Ashawa Adio said:

“On 5^th June, 1984 my husband went into the room to look for a change. When my husband was in the room Dare Kada suddenly got up, took his cutlass and cut the person with whom they were drinking beer. I then shouted when I saw the incident. I saw the accused strike the deceased with my eyes. I do not know whether there was exchange of words because I do not understand their language …

Then person who was struck by the accused fell down and continued bleeding. The accused struck the accused (sic) on the head.”

Under cross-examination the witness said:

“… It was when he struck the deceased that I heard the sound and turned and saw the deceased on the ground in a pool of blood. The accused was running with speed while I was shouting.”

4th PW. Alhaji Ndatsu said:

“At the time of this examination, I was with the General Hospital, Minna, as a Medical Officer in charge of post mortem examination …

On the 20/6/83 I was called to come and perform a post-mortem examination on a fresh body brought from Zungeru covered with a blanket … The body was identified by the deceased’s brother the name of whom I cannot now remember”.

Under cross-examination the Doctor said:

“The corpse was received on the same day. The wound at that time indicated that it was caused few hours before it was brought to the Hospital. This case is not of yesterday, but all I know is that the wound was caused less than a day before it was brought to the Hospital.

On the 20/6/83 I was only this one that I did. I did not write in my report the name of the person who identified the corpse tome. I will be surprised if I am told that the wound I saw that day is three weeks old.”

The defence of the appellant was provocation and self defence. His own version of the event is better recorded to show that even though murder was not proved he did something unlawful.

“Then Kaduna Magaji said that I am a stupid man. That my bears are useless. Then he stood up and started pushing. He pushed my head. I felt pain. I did not get annoyed since he is my son and I begged him to stop. He did not stop and so I left the place and sat somewhere else. Then he took a stick and started beating me. I again begged him for God’s sake to leave me alone. I was not annoyed. He bit me twice while I was sitting. From there I stood up, and he followed me. Then at this stage, I brought out my cutlass and in order to make him fear and to stop, but he did not stop. Then he too brought out his cutlass and he started frighting me, then I hit him with mine. At that time it was night so I did not observe anything. When he continued following me I ran away and left him. This is all I know. I do not know whether he drank on that day. Since the incident, I never saw him again.”

The learned trial judge was addressed extensively on the failure of the prosecution to prove the identity of the person allegedly killed. Unfortunately in what looked like a spiel rather than a finding of fact the learned trial judge said:

… I wish to state here that the absence of the body of the deceased will not be fatal to the prosecution if the actual commission of the offence can otherwise be proved.”

With respect, it was not the submission of the learned counsel for the accused in the court of trial that failure to find the body of the deceased was fatal to the case of the prosecution. There is a world difference between failure to identify the body of the victim to the doctor and the absence of the body: R. v. Ogundipe 14 W A.C.A. 458. It appears to me on the facts of this case that the omission to state the name of the person who identified the corpse and because of absence of notes by the doctor to refresh his memory leaves an undesirable gap in the case of the prosecution. It is both unwise and unhelpful for a medical officer who performs postmortem examination daily to go to court without his notes to refresh his memory. See section. 215 of the Evidence Act and Nwanyanwu v The State S.C.580/199 unreported but delivered on 9/12/1966 by the Supreme Court.

The requirement of the law for identification of the body of the person on whom an autopsy was performed is to ensure that there is no miscarriage of justice. Where A is accused of killing B, there must be a proper identification of B where the body is found to show that he was indeed the person killed and this must be done by a witness who knew him when he was alive: Okoro v. The State (1988) 5 N.W.L.R. (part 94) 205. The time-honored sentence that in all criminal cases the prosecution must prove its case beyond all reasonable doubt governs all criminal trials so as to avoid a miscarriage of justice. In this appeal, the learned trial judge came to the conclusion by deduction that the person allegedly murdered must have been the person in respect of whose body there was an autopsy. He said:

“Thus, Assuming that lack of identity or absence of the body of the person killed is fatal to the prosecution case even if there were other available evidence in proof of the commission of the offence, the foregoing facts show no doubt as to the identity of the person killed by the accused and examined by the medical officer”

The way the medical officer gave his evidence due to absence of detailed notes, unfortunately, portrays him as a man destitute of truth. Exhibit I was carelessly and idly filed. The Court of Appeal appreciated this when the learned justice of the Court of Appeal, Mohammed J.C.A., aptly described the evidence of the doctor thus:

“… I agree that the doctor was in a sort of muddle on the dates and there age of the wound inflicted by the appellant on the head of the deceased.”

I would say that the mental confusion ran across the entire evidence. It is unsafe to rely on the evidence from the doctor, whose evidence was unreliable. While I suppose the doctor’s action was not deliberate, definitely it should not be at the expense of the subject standing trial for his life. The due observance of the strict rules of Criminal Procedure is the only safeguard against wrongful conviction. Liberty of the subject cannot be toyed with. It is invaluable, consequently, the courts must be on their guard to ensure that no departure that will deprive a man of his life and liberty is allowed. It is not a favour done by the court, it is the requirement of the constitution that the innocence of the accused be presumed until he is proved guilty. I agree with Chief Akwiwu in his brief that “the lower court has therefore clearly acted in error in its evaluation of the evidence of p.w.9 (i.e. the Medical Officer) and has clearly destroyed its probative effect.” The lower court found that “the deceased collapsed on the ground and was rushed to hospital where after 15 days’ admission he died. “Unfortunately the prosecution called no evidence of the treatment by the doctor in charge of that hospital. It is from such evidence that the court would have concluded whether the deceased died of the wounds received from the appellant: Archibon Effanga v. The State (1969) 1 N. M.L.R. 186 the case relied upon by the lower court. The act of the accused must not only accelerate the death but must have caused the death of the victim. Since the victim did not die on the spot after the alleged attack it will be presumptuous to conclude that the death which occurred 15 days thereafter without any medical evidence was traceable to the earlier attack. The total absence of other evidence establishing the cause of death is therefore fatal to the prosecution’s case.

I think it is a misdirection on the part of the lower court when it concluded that “the fact that the doctor got confused about the dates and the time of the injury has not affected the overwhelming evidence on the cause of death” when there was no such evidence.

I will agree with the submissions of Mr. Mu’azu Shehu, in his brief filed on behalf of the respondent that the evidence led in proof of death is unsatisfactory as nobody was aware of the date of the death of the deceased as there was evidence from p.w.2 i.e. Busari Adio that “he did not die before the arrival of the police.”

My learned brother, Wall, J.S.C., has rightly commented on the investigation. It was not only poor but wishy-washy. From the accounts given the investigation ought to have been thorough. There was nothing complicated in the matter.

I have considered the issue of a lesser offence, the first impression one had was that there was a grievous hurt. According to section 241 of the Penal Code the categories stated therein are as follows:

“(a) Emasculation;

(b) Permanent deprivation of the sight of an eye, of the hearing of an ear or the power of speech;

(d) Destruction or permanent impairing of the powers of any member or joint;

(e) Permanent disfiguration of the head or face;

(f) Fracture or dislocation of a bone or tooth;

(g) Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits.”

In coming to a decision on any of the above-designated hurts, the court must take into account the defence available to the accused. See sections 244, 245, 246 and 247 of the Penal Code.

In his statement to the Police i.e Exhibit 2A which is the English translation of the statement volunteered in Hausa language, the appellant said:

“… From there he brings up his stick and hit me two times while I was on sit. When I stand up, I says I will not let him kill me then I retaliated with the cutlass I was holding in my hand for I cut him with the cutlass on his head …”

I have looked at the judgment of the learned trial judge critically, he did not deal with the issue of provocation raised in Exhibit 2A adequately but concentrated on self-defence. The learned trial judge’s conclusion even on self defence rested more on assumption than on findings of fact expected to be made on such a crucial point. The learned trial judge said:

“I am conscious of the fact that the accused said on cross-examination that he could not have used any other means to repel the accused’s (sic) attack. But I observe that he also said in his evidence that he brought out his cutlass from its sheath in order to frighten the deceased to stop hitting him with a stick. Taking this evidence to be true, this action of the accused cannot be used as a defence for striking a fatal blow on the deceased’s head. For he was the first to drew (sic) his cutlass from its sheath before the deceased used his own cutlass (assuming that the deceased had a cutlass) in fighting the accused.”

Later in his dealing with provocation the learned judge said:

“In the same vein, it is also my opinion that the action of the deceased as stated by the accused in Exhibit 2 and in his evidence is not enough to sustain a plea of provocation under section 222(1) of the Penal Code because in the circumstances of this case the accused struck the deceased with a double-edge cutlass (Exhibit 3) on the head in retaliation of hitting with a stick.” This reaction of the accused is, in my opinion, disproportionate to the provocation given.”

Those sections of the Penal Code i.e. 245, 246, 247 appear to me to contradict the common definition of provocation is as laid down in The Queen v. Afonia & Ors. 15 W.A.C.A., which adopts the definition in Rex v Duffy (1949) 1 A.E.R. 932. It is this:

“Provocation is an Act or series of Acts done by the deceased to the accused to make him for the moment not master of his mind.”

Section 38 of the Penal Code reads:

“38. Such grave and sudden provocation as under any section of this Penal Code modifies the nature of an offence or mitigates the penalty which may be inflicted shall not be deemed to include –

(i) provocation sought or voluntarily provoked by the offender as an excuse for committing an offence;

(ii) Provocation given by anything done in obedience to the law or by a public servant in the lawful exercise of the powers of such public servant;

(iii) provocation given by anything done in the lawful exercise of the right of private defence.”

Hence when these section (245, 246, 247 of the Penal Code) speak of voluntary causation of hurt on grave and sudden provocation it appears to me that the hurt caused ceases to be voluntary once there is provocation.

When we talk of conviction for a lesser offence, the evidence to be relied upon for such a conviction must relate to and be cogent enough to warrant a conviction for the lesser offence. Lesser offence in this case on appeal should be an offence that does not carry a death sentence. Grievous hurt to my mind, does not come within the offence contemplated by section 221 (b) or 224 of the Penal Code. It is in view of this that I cannot on the fact of this case convict the appellant for the lesser offence suggested by the learned Director of Public Prosecutions. It is only fair however to mention that in his duty as a Minister of justice, he has strongly urged us to allow the appeal. The invitation for address on a lesser offence came from the court.

It is for this reason and the fuller reasons given by my learned brother, Wall, J.S.C., that I will allow the appeal, set aside the conviction and sentence of death and in its place enter a verdict of acquittal.

NWOKEDI, J.S.C:

I had the privilege of a preview of the judgment delivered by my learned brother, Wall, J.S.C. I agree with his reasoning and conclusions. I am also of the view that the appeal be allowed. I wish however to offer a few comments on some aspects of the case.

Nine witnesses testified for the prosecution. Two only approximate to eye witnesses of the facts of the incident. These are, p.w2 (Busari Adio) and his wife p.w.3 (Ashowa Adio). Both testified that they were at the scene when the attack with a cutlass was made. Both testified that the appellant and the deceased were drinking beer in their parlour and were speaking in Fulani language which the witnesses did not understand. The time was about 6.30p.m. None of the two witnesses could tell exactly what happened. PW.2 was in his room when he heard the p.w.3 raise an alarm. He rushed out of the room to see what had happened. The appellant was then making good his escape. He pursued the appellant for some distance but could not catch him.

He met p.w.4 (Alhaji Ndatsu) during the chase. This witness returned with him to his house and saw the deceased lying on the ground in a pool of blood. Both reported to the village head who instructed p.w.2 to return to his house and take care of the wounded man and the p.w4 to proceed to Zungeru to report the incident to the police.

PW.3, she asserted categorically in her evidence in chief that the appellant

“suddenly got up, took his cutlass and cut the person with whom they were drinking beer. I then shouted when I saw the incident. I saw the accused strike the deceased with my own eyes. I do not know whether there was exchange of words because I do not understand their language.”

During cross-examination, p.w.3 recanted the above statement, and admitted that –

“I was not looking at them when they were discussing or fighting. It was when I heard the strike that I turned and found the deceased on the ground and bleeding.”

The effect of the evidence of p.w.2 and p.w.3 was that none of the prosecution witnesses could tell what transpired between the appellant and the deceased before the appellant cut the deceased with the cutlass. We have only the evidence of the appellant on this score. In his statement to the Police the appellant contended

“Further he bring up his stick and hit me with it two times while I was on sit. When I stand up, I says I will not let him kill me then I retaliated with the cutlass I was holding in my hand for I cut him with the cutlass on his head.

When I see that his brother came to help him beat me, then I ran to our cattle ranch.”

In his statement in court the appellant testified as follows:

“That he took a stick and started beating me. I again begged him for God’s sake to leave me along. I was not annoyed. He bit me twice while I was sitting. From there I stood up, and he followed me. Then at this stage I brought out my cutlass and in order to make him fear and to stop, but he did not stop. Then he too brought out his cutlass and he started frightening me, then I hit him with mine. At that time it was night so I did not observe anything. When he continued following me I ran away and left him. This is all I know.”

The learned trial judge rejected the evidence of the appellant that there was a fight between him and the deceased. Why then did p.w.2 report to p.w.4 and p.w.5 that two Fulanis fought in his house? This report coincided with what the appellant told the ASP Danjuma Zuru on 7/6/83. It should be noted that the appellant mentioned that the deceased younger brother and one Kara were present. This was not investigated by the police for they were vital witnesses as to what transpired before the appellant struck the deceased on the head with a cutlass.

Another serious gap in the case for the prosecution is what happened to the deceased between 5/6/83 and 20/6/83. He was carried by the police investigators to Zungeru hospital. PW.2 bathed the deceased and his injury with cold water before his removal. He did not describe the nature of the wound. PW4 did not also describe the seriousness of the wound. The police investigators were lacking in this respect. Even though there were allegations about the deceased being carried to the hospital or clinic at Zungeru and Minna, none of the constables who were involved with this task was called to testify. PW. 1, PW.5, PW.6, PW.7 and P W.8 could not on their own give evidence as to the attention given to the deceased between 5/6/83 and his death on 20/6/83. No member of the Akare dispensary, or of the Zungeru clinic or the Minna General hospital, where the deceased was alleged carried to, testified.

The evidence of the p.w.9, the medical officer who performed the autopsy on the corpse of the deceased further compounded the confusion in this case. He did not recall who identified the corpse to him. In the coroner’s form, Ex. 2A, which he completed, the column for this was blank. He testified that someone who claimed to be the brother of the deceased identified the corpse to him. Strangely, he described the wound he saw on the deceased as fresh, about some hours old. This could not be true, because the deceased was wounded on 5/6/83. Parts of his testimony were as follows:-

“the corpse was received on the same day and examined on the same day.

The wound at that time indicated that it was caused some few days before it was brought to the hospital. This case is not one of yesterday, but all I know is that the wound was caused less than a day before it was brought to the hospital.”

Further he testified that

“The wound I saw on that day the patient would not have survived six hours if it was freshly inflicted.”

He concluded:

“From the wound I saw, such wound was not compatible with life for more than one hour.”

The above evidence of the p.w.9, envelopes with serious doubt, the contention that the corpse he examined was that of Kaduna Magaji, the deceased in this case. If the wound was not compatible with life for more than one hour, the deceased had survived his wound for two weeks – 5/6/83 to 20/6/83. His evidence that the corpse he examined was that of the deceased was at the best hearsay as the person who identified the corpse did not testify.

The learned trial judge disbelieved the appellant’s story. After a lengthy consideration and analysis of the said evidence, he held that the statement of the appellant to the police was a confessional statement of the offence charged. He was of the view that the appellant acted maliciously, and without provocation, in striking the deceased with a matchet on the head. He rejected the defences of self-defence and provocation put up by the appellant. He referred to what happened in the house of p.w.2 as a “one sided aggression rather than a sudden fight upon a sudden quarrel.”

As regards the evidence of the p.w.9, the learned trial judge brushed aside the issues of identification of the corpse of the deceased, and the age of the wound found on the deceased.

Finally, the learned trial judge came to the conclusion that the appellant “knew or had reason to know that to strike the deceased with a double edged cutlass such as exhibit 3, on such vital part of the body as the head by such a person as himself would not only “likely” but would ’probably’ cause death of the deceased.”

He found the deceased guilty as charged. He sentenced him to be hanged by the neck until he was dead.

Before the Court of Appeal, the appellant formulated three issues for determination. They were:

“1. Was the learned trial judge right in convicting the appellant under Section 221 (b) of the Penal Code without making a finding as to whether it was the appellant’s act which in fact caused the death of the deceased?

Was the learned trial judge right in law in ignoring the evidence of p.w.9 which evidence if properly understood pointed to an act different from that of the appellant as the cause of death of the deceased.
Was the learned trial judge right in law in convicting the appellant of the offence of culpable homicide punishable with death under section 221 (b) of the Penal Code having regard to the totality of the evidence before him.”

The respondent formulated one issue namely “Having regard to totality of the evidence before the lower court, was the learned trial judge justified in drawing inferences as regards the appellant’s act?”

The judgment of the Court of Appeal, with which Aikawa. J.C.A. and Ogundere, J.C.A. concurred, was delivered by Mohammed J.C.A. On the first issue the learned justice of Court of Appeal held as follows

“It is quite clear therefore that the learned trial judge did make a specific finding on the fact that appellant’s merciless attack on the deceased with a lethal weapon, on a vital part of his body, was the cause of his death. There is no dispute about the fact that the appellant did attack the deceased with a cutlass on the head, on 5th June, 1983. The appellant himself has admitted both in his confessional statement and in the evidence in chief which he gave for his defence that he struck the deceased with a cutlass. The doctor’s evidence which I shall consider in the second issue for the determination of this appeal has confirmed that the deceased met his death through injuries inflicted on his head with a sharp instrument. A voluntary confession of guilt, if it is fully consistent and probable is usually regarded as evidence of the highest and most satisfactory nature and if there is an independent proof that a criminal act has in fact been committed by someone – see Philip Kanu v R. (1952) W.A.C.A. 30 and See R. v. Obiase (1962) 1 All N.L.R. 651. The first ground of appeal has therefore failed.”

On the second issue above, the learned justice of the Court of Appeal, in assessing the probative value of the evidence of the p.w.9 commented as follows:

“I have carefully considered the submission of the learned counsel for the appellant on the issue and I agree that the doctor was in a sort of a muddle on the dates and the age of the wound inflicted by the appellant on the head of the deceased. The doctor is definitely wrong to say that the wound was inflicted a few hours before he performed the post-mortem examination. It is quite clear that from the evidence that the attack was made on the 5th of June and the post-mortem examination was conducted on the 20th June. However, the doctor did find that the injuries inflicted on the deceased caused his death.”

He further found that:

“In the case in hand there is overwhelming evidence, including the voluntary confectionery (sic) statement made by the appellant that he struck the deceased with a cutlass on the head. The deceased collapsed on the ground and was rushed to the hospital where after 15 days admission he died. The evidence of witnesses was consistent with the finding of the medical officer that the deceased had a deep cut on the head. It goes without saying that an injury like the one described by the witnesses could lead to the death of any human being.”

On this aspect he concluded as follows:

“I have no reason in my mind to doubt that the death of the deceased, in the case in hand, was caused by the wound inflicted by the appellant on the deceased’s head. The learned trial judge found that the medical evidence was not unambiguous (sic) on the cause of death and I agree that the medical officer was emphatic that the wound he saw on the head of the deceased was the cause of his death. The fact that the doctor got confused about the dates and the time of the injury has not affected the overwhelming evidence on the cause of death … From the evidence adduced before the court by the prosecution and the review of the same made by the learned trial judge I am satisfied that the appellant has been rightly convicted for the offence charged. It is without any doubt that the wound inflicted on the head of the deceased was the cause of his death.”

The Court of Appeal having confirmed the conviction and sentence passed on the appellant he has appealed to this court. The appellant has outlined five issues for determination before this court. They are as follows:

“1. Was the Court of Appeal right in supporting the conviction of the appellant by the trial court under section 221 (b) based on the evidence of p.w, 2, 3, 4, 9 and the appellant’s statement exhibit 2.

Must the extra-judicial statement of an accused person to the police constitution an inflexible test of the veracity of his evidence on oath in Court in his own defence.
When is the statement or evidence of an accused person confessional?
Was the Court of Appeal justified in law to pick and choose between the conflicting evidence of PW.3 and PW.9 respectively.
Having regard to the totality of the evidence before the court can the prosecution rightly be said to have proved the case against the appellant beyond all reasonable doubt.”

It should be noted that the issues Nos. 2 and 3 above were not raised in the Court of Appeal. No leave was granted for them to be raised before this court – See Uor v Loko (1988) 2 N.W.L.R. 430. S.C. The above are therefore not properly raised.

Under the first issue, learned counsel sought to answer the question considered by the learned trial judge – namely, Whether there was a sudden quarrel and a fight, if so, when did it take place? He referred to the evidence of PW.2 who informed PW.4 that a fight did take place, the report of the PW.2 to the police and the Village head to the effect that two Fulanis fought in his house, the evidence of PW.5 that PW.4 who had reported at the police station that two Fulanis fought in Akare Village, the evidence of ASP Danjuma Zuru that the accused confessed to him on 7/6/83 that he fought with the deceased with a cutlass. He then submitted that the Court of Appeal had no basis for holding that the death of the deceased was caused by the merciless attack of the appellant with a lethal weapon on the head on 5/6/83. relying on Omoshiodun v. Commissioner of Police (1961) 1 All N.L.R. 594 he submitted that where the records of proceedings show that the trial court relied on witnesses in support of certain findings and it was shown that the evidence of the witnesses was irreconciliable on the facts as put forward, the appellate court was bound to disregard the finding.

On issue No. 5 above on which arguments were mainly based learned counsel submitted that the appellant did not admit either expressly or impliedly that he committed culpable homicide as charged. He merely explained the circumstances in which he inflicted the injury on the deceased. He relied on Ogbu Nwagu v. The State (1966) 2 All N.L.R. 213 to support his contention.

Answering the question – Did the appellant kill the deceased? Learned counsel attacked the finding of the Court of Appeal to the effect that there was “overwhelming evidence including the voluntary confessional statement made by the appellant that he struck the deceased with a cutlass on the head… Further that the evidence of the witnesses was consistent with the finding of the medical officer that the deceased had a deep cut on the head. The Court of Appeal on the next breath held that the evidence of the said medical officer “was in a sort of muddle on the dates and the age of the wound inflicted” and that the doctor was definitely wrong to say that the wound was inflicted a few hours before he performed the post-mortem examination. Relying on Kunle v The State (1970) 9-10 S.C. 1 and Christopher Onobogu and Ors. v. State (1974) 9 S.C. 11 learned counsel submitted that the Court of Appeal could not suo motu pick and choose between two conflicting pieces of evidence of a witness. He submitted that the court acted in error in evaluating the evidence of PW.9. Relying on the civil case of Olawuyi v. Adeyemi (1990) 4 N. W.L.R. (part 147) page 746 and 777 he contended that “where the evidence of a witness who is called by a party supports the adversary’s case, such evidence serves as a solemn admission in favour of the opponent.” Learned counsel relying further on Afolayan v Ogunmode (1990) 1 N.W. L.R. (part 127); Enang v. Adu (1961) 11 – 12 S.C. 25; Sokoya v Alayo (1983) 3 S.C. 156; Alade v. Alemolake (1988) 1 N.W.L.R. (part 69) page 207 at 912; he urged the court to set aside the concurrent findings of facts arrived at by the lower courts.

The respondent’s brief of argument set out two issues for determination namely:

In the brief of argument, learned counsel for the respondent, after careful analysis of the evidence in the case, put forward the following conclusions

(a) that there was no evidence to show that the deceased was taken to either Zungeru hospital or General Hospital Minna.

(b) that the evidence of the PW.9 was inadmissible to show that the body in which he performed the post-mortem examination on 20/6/83 was that of the deceased as the said evidence was hearsay.

(c) that the medical report Ex. 2A (sic) was worthless in so far as it did not establish the identity of the deceased. He relied on Okon v. State (1988) 5 N.W.L.R. (pt. 94) page 255 and Msugbendo v. State (1980) 2 N.W.L.R. 23-26.

On the first issue, learned counsel submitted that if the evidence of the PWA was disregarded, the following facts remained unsolved, namely date of death of the deceased, nature of the injuries sustained by him, cause of death. Learned counsel contended that even though there was evidence by P W.2, PW.3 and PW.4 that the deceased had a cut on his head, there was no evidence of the extent or nature of the injury except that of P .W.9. Learned counsel submitted that the present case may be distinguished from the situation in the cases of Bakare v. The State (1987) 1 W.W.L.R. 579 and John Iwueya Okonju v The State (1987) 1 N.W.L.R. 659 where death was inferred from the nature of the weapon used on the deceased and the part of the body on which he sustained the injury, to hold that death was the probable consequence of the act of the accused persons. In those two cases the deceased died, almost immediately. In this case, the date of the death of the deceased was unknown and the cause of death equally unknown. In any event the deceased survived for two weeks after the injury and there was no evidence of what happened to him within the said two weeks.

He concluded by submitting that the prosecution did not prove its case beyond reasonable doubt against the appellant. The court was reluctantly urged by learned counsel, to allow the appeal and to discharge and acquit the appellant.

It should be accepted that the death of Kaduna Magaji was a most regrettable incident. The appellant is accused of causing his death. In our system of jurisprudence the appellant must be convicted on legal evidence i.e, evidence admissible in law to prove the charge against the appellant. Here two ingredients are paramount – that the appellant inflicted an injury or wound on the deceased and that the said injury or wound cased the death of the deceased. Sentiments should not be allowed to becloud the issues. Where the police have handled the investigation of a case most ineptly and the prosecution’s case deficient of material particulars, it would be unfortunate to discharge and acquit the accused, but to discharge and acquit is the duty incumbent on the court.

The respondent’s issues for determination are covered by issues 1 and 5 outlined by the appellant in his brief. On the first issue above, the evidence of PW.2, PW.3, PW. 4 and PW.9 and the appellant’s statement to the police Ex. 2, and evidence in court, all confirm that the appellant cut the deceased with a cutlass on the head and inflicted an injury on him. There is no dispute as to that issue of fact. What however was the nature of the wound received by the deceased? PW.2 and P W.3 who were at the scene and R WA who visited the scene, did not describe this. The only evidence on this score was that of PW9. How much of legal evidence was that of PW9?

He did not know the deceased. That his body was identified to him by an unknown party, is at the best, hearsay evidence since the party was not called to testify nor any reason offered for his absence. In R. v. Laoye 6 W.A.C.A. 6, it was held that failure to identify the body examined by a medical witness as the one found by other witnesses was fatal to a conviction. In this case a medical officer had given evidence of a post-mortem examination on an unknown woman but did not know who brought in the body on which he performed the post-mortem. He gave the result of his findings. Kingdom C.J. held that –

“The is a number of highly unsatisfactory points in this case of which the most striking is the failure to identify the body examined by the doctor as the one found by the crown witnesses. The learned trial judge saw this difficulty and referred to it at length in his judgment and even describes the point as one of importance. Our only comment on this is that we think the point was not only important but vital.”

Then comes the contradiction between his evidence and admitted facts by the appellant and prosecution witnesses, namely, that the wound was inflicted on 5/6/83, whereas R W.9 held that the wound he saw was fresh and could have been only a few hours old on 20/6/83. Both the Court of Appeal and the trial court glossed over these contradictions, on the excuse that PW.9 was sort of muddled up.” Both courts in each case suo muto, supplied reasons for the contradictions. Such explanation should emanate from the prosecution in re-examination of the witness. See Onubogu and Anor v. The State (1974) 1 All N.L.R. (Pt. 1) 5 at 18. Christopher Ahebia & Anor v. The State (1982) 4 S.C. 78 at 89. Without the evidence of the PW.9, the bottom is knocked out of the case for the prosecution for there would be no nexus connecting the wound with the death of the deceased.

Adverting further to whether on the totality of the evidence, the prosecution would be said to have proved its case, I am of the view that learned counsel for the appellant was correct in his contention. There are several gaps in the investigation which needed to have been gone into. The appellant mentioned the presence of the brother of the deceased, and one Kara’a during the incident. These were not contacted to testify. No one had been able to explain, by legally admissible evidence, what happened to the deceased after he was removed from Akare Village on 6/6/83. This is not a case where death could have been inferred because there was an unaccounted period of two weeks between the incident and the death of the deceased. The evidence of the medical officer who performed the autopsy on the body of the deceased left a serious doubt as to whether it was actually on the deceased, in this incident, that he performed the autopsy. It is elementary to state that such doubts or lapses should ensure for the benefit of the appellant.

The appeal is hereby allowed. The judgments of the High Court Minna dated 7th November, 1987 and that of the Court of Appeal dated 11th October, 1989 are hereby set aside. This court hereby orders that the appellant be discharged and acquitted.

Appeal allowed.