3PLR – MUFUTAU BAKARE V. THE STATE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS – 3PLR
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SUIT NO. SC 242/1985
3PLR/1988/21 (SC)
OTHER CITATIONS
(1987) 3 S.C 1
BEFORE THEIR LORDSHIPS
OBASEKI, J.S.C.
REPRESENTATION
Mr. J. O. liaodola (with him S. A. Bello) – for the Appellant
Mrs. TA. Olotu, Snr. State Counsel Kwara State (with her Miss Titi Kawu) – for the Respondent
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE – Culpable homicide punishable with death – Proof of prosecution’s case – Section 137(3) Evidence Act Cap. 62 of 1956 – Effect – Creation of doubt – Whether evidence not believed can create reasonable doubt – Findings of fact.
PRACTICE AND PROCEDURE – Evidence – Evaluation of evidence – Duty of trial coup – Attitude and approach of appeal court.
WORDS AND PHRASES – Proof beyond reasonable doubt” – Meaning of.
MAIN JUDGEMENT
OPUTA, J.S.C. (Delivering the Lead Judgment):
This appeal was set down for hearing on the 11th day of December 1986. After going through the record of proceedings, the Briefs filed on both side (which were too brief to be of any use) and hearing learned counsel for the Appellant, I did not consider it necessary to call upon learned counsel for the Respondent. I there and then dismissed the appeal, affirmed the judgment of the Court below, and confirmed the conviction and sentence of the Court of first instance. I indicated that I will give reasons for my judgment today, the 6th day of March 1987. Hereunder are those reasons. The Appellant, Mufutau Bakare, was charged with the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code. He was arraigned before the Kwara State High Court holden at Ilorin and presided over by Gbadeyan, J. The learned trial judge heard the evidence of 9 prosecution wit-nesses. The Appellant made an extra judicial Statement to the Police in Yoruba tendered as Exhibit 3. The English translation was tendered as Exhibit 4. In addition to Exhibit 3 and Exhibit 4, the Appellant gave oral evidence on oath in his own defence. After reviewing the evidence on both sides Gbadeyan, J. found the Appellant guilty and sentenced him to death.
The Appellant aggrieved by the above conviction and sentence appealed to the Court of Appeal Kaduna Division conram, Wali, Maidama and Babalakin, W.C.A. That Court by a unanimous verdict dismissed his appeal and confirmed the conviction and sentence of the trial Court. Still aggrieved the Appellant has now appealed to the Supreme Court of Nigeria on 9 grounds of various errors and misdirection in fact as well as In law.
The first ground of appeal complained that:
“1. The decision of the Court of Appeal is unreasonable having regard to the evidence before the trial Court”.
This ground deals with, the facts of the case, the evidence led on both sides, the evaluation of that evidence, the ascription of probative value to such evidence, the credibility of witnesses who testified, the consideration of all credible evidence and the logical conclusion both of fact and of law to be drawn from the totality of the evidence led. All these are matters squarely within the exclusive competence of the trial judge who saw, heard and believed. Understandably, therefore, an appellate Court is naturally very reluctant to reverse on ground 1 above the findings of a trial judge who had the peculiar advantage of seeing the witnesses, of watching their demeanour and of hearing them give evidence. Therefore, again, when the questions involved are purely those of fact an appellate court will not interfere unless the decision of the trial judge is shown to be perverse and not the result of a proper exercise of judicial discretion (to believe or disbelieve witnesses) or that there is no evidence at all to support a particular crucial finding or that the trial court made wrong deductions or drew wrong inferences from admitted or established facts. There is such a myriad of authorities to support the above propositions that it is unnecessary to repeat them here. What is necessary is to look critically at the evidence before the trial Court to see whether the learned trial judge erred in his handling of the facts and whether it is true that his decision “is unreasonable having regard to the evidence before him.”
The star witness for the prosecution was Jonathan David called as P.W.2. He was an eye-witness. He was present and saw all that happened. He heard the Appellant threaten to “deal ruthlessly” with the deceased stressing that his action will lead the deceased ‘to the hospital”. He made good his threat. His action led the deceased to the hospital alright. The deceased was taken to the hospital in an un-conscious state on 18/11/81 and he died on 19/11/81. What did the Appellant do to the deceased in the execution of his threat? Without any provocation whatsoever and following a mere argument over the tearing of the deceased person’s motor-cycle seat by the Appellant’s younger brother, the Appellant rushed into his room, fetched his dagger, made for the deceased and plunged the dagger into the head of the deceased. The dagger had to be pulled out by the P.W.2. The deceased collapsed and slumped down soaked in his own blood. The Appellant tried to run away but the P.W.2 gave chase and caught him. The P.W.2 and others took the deceased, and the Appellant to the hospital. At the hospital the doctor insisted, and rightly too, that the Appellant be handed over to the Police. This the P.W.2 did. There the Appellant was arrested. The murder weapon (Appellant’s dagger) was recovered under a grinding stone (belonging to the Appellant) at the entrance of the Appellant’s own room. The dagger was tendered as Exhibit 1.
The story of the P.W.2 was corroborated by the evidence of the other witnesses. Shaibu Aremu called as P.W.3 was in his bathroom when he heard the P.W.2 shouting “Help, Please help me”. He ran out and saw the P.W.2 holding the Appellant. He also saw blood gushing out from the head of the deceased. He helped the P. W.2 to convey the deceased to the hospital and he was present when the Police recovered the Appellant’s dagger Exhibit 1 from underneath the Appellant’s grinding stone. The evidence of Dr. James Orhoniyi Fagbayi called as P.W.6 showed the ferocity with which the Appellant stabbed the deceased who died of trauma, shock and bleeding. The medical evidence was that the cut on the head was 1/2 to 3/4 inch deep and about 1 1/2 to 2 inches long. The medical opinion was that this cut could easily lead to death and that Exhibit 1 could produce the injuries on the deceased. This was the summary of the prosecution’s case against the Appellant. It is this case that the trial Court will have to compare and contrast with the defence of the Appellant.
What then was the defence of the Appellant? The Appellant made three extra judicial Statements to the Police namely Exhibit 3A, Exhibit 4 and Exhibit 5A. In Exhibit 3A the Appellant said inter alia:-
“As I was going out to call my junior brother Latifu, the said Rasaki followed me. When he came out of his room to our passage he put down a bottle of beer on his hand and rolled up his trouser. Then one Momo Saka held him not to come and meet me. From the bottle of beer he put on the ground fell down and pour on the ground. I don’t know the reason why they were holding the said Rasaki not to come and meet me. From there he stepped where the beer was and he fell down while he hit his head on his machine. Then he sustained injury from there”.
From Exhibit 3A made on 18/11/81, the deceased sustained his injury when he slipped on a wet floor. His bottle of beer spilled over on the floor. Exhibit 4 made on 19/11/81 repeated the story of the deceased stepping on the wet floor and falling on his motor cycle. In Exhibit 5A made on 23/11/81, the Appellant introduced a new element:
“It is at this juncture that Rasaki Adedokun the deceased came out of his room and wanted to fight me. One woman in our house, lya Saka then held the de-ceased not to fight with me. Rasaki Adedokun the deceased then fell on his motor cycle …… and his head where he sustained injury previously in an accident started bleeding”.
The prosecution called the woman, lya Saka, as P. W.5. She was emphatic that she was not at home when the deceased sustained his fatal injuries. She went to the mosque to pray. When she returned she saw a crowd in their house. It was then that she was told what had happened.
From the evidence of the Appellant under cross-examination at p.31 of the record he conceded that Rasaki Adedokun, the deceased, fell down. The Appellant saw him fall. The Appellant continued – “He bled profusely. He was unconscious.” This, again, is common ground. The Appellant further admitted that he owned the dagger, Exhibit 1. Now the question is what caused Rasaki’s bleeding and ultimate death – the dagger Exhibit 1 or the fall? The Appellant’s explanation at p.28 lines 22 to 29 was:-
“When he (deceased) was struggling to release himself from the hold of the P.W.2, Rasaki slipped and fell down and hit his head against the passenger’s foot rest (Pedal) of his machine ….. The foot rest has no rubber pad. The exact spot on his head knocked against that pedal was the spot where he had a scar. He was injured and we tried to rescue him. ……….. We took Rasaki to the hospital. At the hospital the doctor said we should call in the police. I waited with another person at the hospital while a report was made at the Police Station by P.W.2 and P.W.3. The Police came …….. I was taken to the Police Station. I was questioned and locked up that night”.
The learned trial Judge had two conflicting versions of the causa causans of the death of Rasaki Adedokun – the prosecution’s case was that Rasaki was stabbed to death by the Appellant while the Defence was that Rasaki fell to his death by knocking his head against the pedal of his motor cycle.
The learned trial Judge reviewed the evidence in support of each proposition, believed all the prosecution witnesses and disbelieved the story of the Appellant which he described as “an after-thought designed to hide the truth”. The learned trial judge went further. He did not believe that the “type of injury sustained by the deceased” and described by the medical witness P.W.6, Dr. James Omoniyi Fag-bay!, could be caused by a fall on a motor cycle pedal. This point is important as it emphasises the fact that a finding of the trial Court must be in accord with the probabilities which on the evidence it is natural to expect. It is quite improbable that a fall on a motor cycle pedal will produce “a cut 314 inch deep and 2 inches long” (Emphasis mine). From what height would someone fall to produce such in-jury? From a mountain top perhaps but definitely not from someone standing who merely slipped and fell down. I am satisfied that on the facts, the judgment of the learned trial judge cannot be faulted. He carefully considered the evidence on both sides, pointed out the various flaws, contradictions and improbabilities in the evidence of the Defence. He then exercised his prerogative as a trial judge to believe the prosecution witnesses and disbelieve the Appellant. Surely such a care-fully written judgment cannot be upset on the facts. The Court of Appeal was right in not disturbing the trial Court’s finding of fact. Ground 1 of the Grounds of Appeal therefore fails.
Ground 2 complained that:-
“2. The Court of Appeal erred and misdirected itself in law and in fact in dismissing the Appellant’s appeal when it cannot be said that the prosecution had proved its case beyond every reasonable doubt.”
In his Brief, which was too brief to be of much use, learned counsel for the Appellant submitted that “there is only one issue for determination in this appeal; viz ‘Whether or not the prosecution had proved its case beyond every reasonable doubt”. From the particulars of error/misdirection (supporting this ground of appeal) which were further elaborated in the Brief, it is obvious that there is here a thorough misconception of the requirement that the prosecution should prove its case beyond reasonable doubt.
Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All. E.R. 373:
‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence -’of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt”.
In the case now on appeal, it is possible that a man slipping and falling and hit-ting his head on motor cycle pedal may sustain some injury to the head but it is highly improbable that he will have a cut as deep and as wide as that described by the medical evidence of the P.W.6. Also it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable. Not all doubts are reasonable. Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt – a doubt not borne out by the facts and surrounding circumstances of the case.
Another sense in which the expression “Proof beyond Reasonable Doubt” is used refers to the shifting of the onus of proof as stipulated by Section 137(1) Evidence Act Cap 62 of 1958:-
“137 (1) If the commission of a crime by a party to any proceeding is directly in issue …… it must be proved beyond reasonable doubt”.
But if the prosecution proves the commission of a crime beyond reasonable doubt then the burden of proving reasonable doubt is shifted onto the accused – see Section 137(3) of Cap 62 of 1958. What does this subsection mean in relation to the case now on appeal? It means this. At the close of the prosecution case the Court had heard 9 witnesses testified. If the prosecution witnesses were believed and there was nothing urged in defence, no fair minded jury can return any verdict except that of guilty. In other words the prosecution established this case beyond reasonable doubt. The onus then shifted to the defence to adduce evidence capable of creating some reasonable doubt in the mind of the trial Judge. The primary onus of establishing the guilt of the Appellant was still on the prosecution and this does and did not shift. What does shift is the secondary onus or the onus of adducing some evidence which may render the prosecution case improbable and therefore unlikely to be true and thereby create a reasonable doubt:-R v. Harry Lazarus Lobell (1957) 41 C.R. App. R. 100 at p.104 per Goddard L.C.J.
The learned trial judge in this case compared the accounts of the incident as told by the prosecution and the defence and was not in any doubt that the Appellant was not a truthful witness. He (the judge) described his defence as “an after thought designed to hide the truth”. Evidence that is not accepted cannot possibly create a doubt in the mind of a fair minded jury. If the defence account of the incident is disbelieved then that is the end of the story and there will then be no evidence on which to consider the existence of a reasonable doubt. The Court of Appeal was right in holding that the case was proved beyond reasonable doubt. Ground 2 of the grounds of appeal therefore fails.
Ground 3 complained:-
“3. The learned Justices of the Court of Appeal erred and misdirected them-selves in fact in not holding that in view of the alleged sequence of events it was most doubtful that Exhibit 1 (the knife) was used on deceased by the appellant when P.W.3 admitted in evidence that he did not see Exhibit 1”.
There is some misconception here about the relative roles of a trial Court and an appellate Court. The role of a trial Court is to try the issues, evaluate the evidence, make appropriate findings and come to a conclusion one way or the other – a conclusion dictated by the natural drift of the evidence and the probabilities of the case. The role of the Court of Appeal, the Court below, is to see whether the case was properly tried and whether the conclusion arrived at can be supported by the available evidence and the law on the subject. In this case there was the evidence of the P.W.2:-
- That Appellant plunged his dagger into the head of the deceased. 2. That he (P.W.2) pulled out the dagger.
- That he threw the dagger on the ground.
- That the Appellant took to his heels.
- That he (P.W.2) gave chase and caught the Appellant and dragged him back to the scene of crime.
- That he (P.W.2) saw his brother, the deceased, lying in a pool of his own blood.
- That he left the Appellant to take care of the deceased. It was then he shouted for help.
- That the only man at home was P.W.3 who was in the bathroom having his bath.
- That when he was explaining to the P.W.3 what happened the Appellant ran away a second time and the dagger vanished.
The question now is:- How was P.W.3 expected to see the dagger which “vanished” on the night of 18/11/81 only to be found hidden under the grinding stone of the Appellant by the Police on 19/11/81 after a search? To my mind the sequence of events go to show that the P. W.3 was a truthful witness and his evidence corroborated and gave additional credence to the story of the P.W.2 who himself did not also see Exhibit 1 when the P.W.3 appeared on the scene from the bath-room and when the Appellant disappeared only to be chased and ‘captured’ a second time by the P.W.2.
The case of the Appellant was that he did not stab the deceased on the head with this dagger, Exhibit 1. The case of the prosecution per the P.W.2 was that he did. The trial Court believed the P.W.2 and disbelieved the Appellant. The circumstantial evidence quietly but effectively (given the surrounding circumstances) showed that the learned trial judge was right in believing the P.W.2. The Appellant admitted owning 4 knives. Three were found inside his room (see p.29 lines 16- 17) but Exhibit 1 was found “outside my room” under his grinding stone. Who placed Exhibit 1 there? When was Exhibit 1 placed there? These are questions which the defence alone can answer. This the Appellant failed to do. The trial Court was in such circumstances at liberty to draw any reasonable conclusion from the evidence at its disposal. And one reasonable conclusion was that after using Exhibit 1 on the deceased the Appellant hid it under his grinding stone and ran away. There was also the fact admitted by the Appellant in cross-examination (page 31 Lines 14/15) that Exhibit 1 the dagger was slightly bent – why was that? The Appellant’s answer was – “I do not know why the head of the dagger is slightly bent”. One can hazard one reasonable reason. Using a dagger on a hard object like the head of a human being with the force which produced the injuries deposed to by the P.W.6 may account for the bending of the dagger, Exhibit 1. Now when the Appellant who had the opportunity to explain why his dagger Exhibit 1 was bent, says “I do not know why”. It is left to the Court to draw its own conclusion from the totality of the evidence led. The Court of Appeal was right in rejecting any suggestion that the evidence of the P.W.3 should have created a doubt in the mind of the trial judge.
The next ground of appeal I will like to consider is Ground 9 which complained:-
“Ground 9
The learned Justices of the Court of Appeal erred and misdirected them-selves in law in their view “that there is ample evidence on which the learned trial judge could reach the conclusion that the Appellant had constructive knowledge that death would be the probable consequence of his act”.
Particulars of error/misdirection in law
“Section 19 of the Penal Code is inapplicable in that the appellant clearly ex-pressed his intention which negatived that presumption”.
The law is that intent can be proved positively by proof of the declaration of the accused as to his Intent or inferentially or by proof by evidence of similar acts. In the case now on appeal, there is no evidence from the Appellant as to his intent. There could not have been for he denied killing the deceased. But there is evidence from the P.W.2 that:-
“An argument ensued ……. The accused then promised to deal ruthlessly with my brother and that his (Accused’s) action could lead him (Deceased) to the hospital….. The accused then went into his room ….. came out wearing a flowing gown (agbada) with his right hand inside the Agbada……. The accused in a flash brought out his right hand from the agbada and struck my brother on the head. …. 1 saw clearly a knife submerged in my brother’s head and I pulled it out. This is the knife (Exhibit 1 is identified).”
In keeping with his promise the Appellant did deal ruthlessly with the deceased and his action sent the deceased to the hospital to where he was carried in an un-conscious state and where he died the following day. From the above evidence of the P.W.2 which was believed, the Inference Is that the Appellant Intended to kill the deceased or at least cause him grievous bodily harm. There was in this case direct evidence of the intention of the Appellant. The surrounding circumstances again confirmed the declared intention of the Appellant as deposed to by the P. W.2-
(I) the stabbing on the head with Exhibit 1 with such a force to result in Exhibit 1 bending;
(ii) the instrument used is a dagger;
(iii) the nature and gravity of the wounds inflicted –
all these testify to an intention to kill or at least cause grievous bodily harm. Death resulted almost Immediately. The Court of Appeal was therefore right in holding that there was ample evidence to justify the learned trial judge in holding that the Appellant had knowledge that death would be the probable consequence of his act. This ground of appeal also fails.
In the final result and since all the grounds of appeal considered have all failed, this appeal should be dismissed as it was in fact dismissed on 11th December 1986.
OBASEKI, J.S.C. I dismissed this appeal after hearing counsel and reading the record of proceedings together with the briefs of counsel on the 11th day of
December, 1986 and reserved my Reasons for the Judgment till today. I now proceed to give my reasons. However, before now, I had the opportunity of reading in advance the draft of the Reasons for Judgment just delivered by my learned brother, Oputa, J.S.C.
As I find those Reasons for Judgment in concurrence with mine I will and hereby adopt them as my own.
This is a simple case of culpable homicide punishable with death under section 221 (b) of the Penal Code. The appellant’s brief formulated only one issue for determination which is:
‘Whether or not the prosecution had proved its case beyond reasonable doubt” The appellant’s counsel in his brief pointed to 12 pieces of evidence which he urged were sufficient to create reasonable doubt in the mind of the learned trial judge, Gbedeyan, J. These areas complained of in the evidence are many:
(1) The absence of evidence identifying what was found on Exhibit 1 (the dagger allegedly used in inflicting the mortal wound on the head of the de-ceased) and the blood of the deceased;
(2) The exposure of Exhibit 1 to contact with p.w.7 p.w. 8 and P. W. 9
(3) p.w.1’s testimony that p.w.9 gave him p.w.1 Exhibit 1 but P.W. 9 did not mention anything about Exhibit 1 or the fact that he gave it to p.w.1 throughout his testimony;
(4) The contact of P.W. 2 with Exhibit 1 was not given sufficient emphasis and consideration. P.w. 2 who was the only eye witness handled Exhibit 1;
(5) The contradiction between the evidence of P.W. 2 who said Exhibit 1 was submerged in the deceased’s head and the evidence of P. W. 6 – the doctors who testified that the injury was 1/2″ to 3/4″ deep and 11/2″ to 2″ long as confirmed by the medical report;
(6) The whereabout of the dress worn by the deceased remained unexplained;
(7) The intervening medical treatment;
(8) The unpadded bicycle pedal could cause the injuries sustained by the victim;
(9) The appellant is under no duty to prove his innocence or that of the un-padded pedal;
(10) The presumption that the accused knew that death was probable from the accused’s act was negatived by the accused’s threat as narrated by P.W.2. The evidence of p.w. 2 that he pulled Exhibit 1 out of the head of the de ceased and threw it on the ground leaves the journey of Exhibit 1 to beneath the grinding stone a mystery.
All the above points were considered in detail in the Reasons for Judgment de-livered by my learned brother, Oputa, J.S.C. The weight of the evidence of P.W. 2 who was an eye witness to the attack by the appellant on the deceased and the evidence of P.W. 6 on the nature and severity of the injury inflicted is sufficient to dispel any doubt as to the cause of death of the deceased and the identity of the person who inflicted the injury. Any person who plunges a dagger into the head of a human being to the depth of 1/2″ to 3/4″ and inflicting an injury of that depth and length (11/2″ to 2″) does not expect his victim to live.
The brain is a very sensitive area of the human body the damage to which can-not be repaired. Medical science still has to be developed to provide a cure for physical damage to human brain. When therefore the appellant, in the presence of P.W. 2 plunged Exhibit 1 into the head of the deceased and left it there only to be pulled out by P.W.2, it is reasonable to presume that he intended the death of the deceased.
Proof beyond reasonable doubt means proof of an offence with the certainty of the criminal law. That certainty is that the offence has been committed and that no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these two facts. the case is said to be proved beyond reasonable doubt.
On the evidence before the Court of 1st instance, the court of first instance and the Court of Appeal were right to have come to the conclusion that the case against the appellant was proved beyond reasonable doubt and that the appellant was guilty of the offence charged.
It was for the above reasons and those ably stated by my learned brother, Oputa, J.S.C. in his reasons for judgment that 1 dismissed the appeal on the 11th day of December, 1986.
UWAIS, J.S.C. This appeal was dismissed on 11th December, 1986 and reasons for the dismissal were reserved till today. I have had the opportunity of reading in advance the reasons for judgment read by my learned brother, Oputa, J.S.C. I entirely agree with the reasons. As it was for the same reasons that I dismissed the appeal, I adopt the said reasons for judgment as mine. I have nothing to add.
KARIBI-WHYTE, J.S.C. On the 11th December, 1986 I dismissed the appeal of the appellant. I indicated that I will give my reasons for doing so today. I here below give the reasons.
This is an appeal against the judgment of the Court of Appeal Division Sitting at Kaduna. On the 14th June, 1985, the Court of Appeal dismissed the appeal against his conviction on 20/10/83 by Gbadeyan J of the Ilorin High Court, of the offence of culpable homicide punishable with death contrary to section 221 (b) of the Penal Code. Appellant has filed nine grounds of appeal. Grounds 1, 3, 4, 5, 6, 7, 8, were based on misdirection on the facts, whereas 2, 6, and 9 were allegations of errors of law.
The facts of this case are very simple and short. Appellant and Rasaki Adedokun, the deceased, were co-tenants living in a house at Orolodo Compound, Omu-Aran. They were reasonably friendly towards each other. The Appellant Mufutau Bakare also lived with his younger brother Lateef Bakare. On the 16th November, 1981, Rasaki Adedokun, the deceased, returned from Lagos with his cousin Jonathan David, to find the seat of his motor-cycle severely slashed. On enquiry, he was informed that it was Lateef Bakare, brother of the Appellant who did the dam-age. Rasaki Adedokun invited Mufutau Bakare to his room and reported the matter to him. According to Jonathan David, PW2, who claimed to be present, the reaction of Mufutau Bakare resulted in the stabbing of the deceased. Appellant did not dispute the fact that the seat of the Motor-Cycle of the deceased was dam-aged by Lateef Bakare. He however denied stabbing the deceased. In his statement to the Police and also evidence in his defence in court he denied ever stabbing the deceased or indeed fighting with him. His defence was one of accident, and .that the deceased fell whilst struggling to free himself from the hold of persons persuading him not to fight with the appellant, and knocked his head against the pedal of his motor-cycle standing near by and sustained the injuries which led to his death. Appellant stated that the deceased had a scar on his forehead, and suggested that the area of the scar must have been reopened by the wound. Appellant denied ever touching the deceased. The medical evidence clearly corroborated the allegation that the deceased was stabbed with a sharp instrument and rejected the suggestion that the injury so caused could have been caused by his falling and knocking his head against the pedal of the motor cycle. The Doctor, James Omoniyi Fagbayi, P.W.6 who gave evidence was positive that the in-jury could only have been caused by the infliction by stabbing with a sharp Instrument, such as was tendered.
After a very careful analysis of the evidence, the learned trial judge in a well considered judgment believed the evidence of the Prosecution. He rejected the defence of accident raised by the appellant, describing it as an after-thought. The learned trial judge found as a fact that appellant owned the knife with which it was alleged the deceased was stabbed, that appellant stabbed the deceased, and that death of the deceased resulted from the stabbing. He did not consider evidence of forensic laboratory of the blood stains on the knife necessary for the conviction of the appellant. In his view it was only where there is doubt whether the blood stain was human blood was it necessary for scientific evidence of the blood stain to clear the doubt. In this case appellant was not denying ownership of the dagger. The dagger was recovered only the day after the incident In the appellant’s possession. The evidence that appellant stabbed deceased with the dagger was believed. Appellant however denied using the dagger.
The findings of fact were challenged on appeal to the Court of Appeal which affirmed the findings. Counsel for the appellant has not contended that the findings could not be made in view of the evidence before the Court; or that they were otherwise perverse. The brief of argument filed by counsel did not indicate In what respects the facts found by the trial judge were at variance with the evidence before him, and more importantly the judgment of Court of Appeal which is before us has not been challenged for any errors of fact it has made in accepting the findings of the trial court.
There is the well settled presumption that the findings of fact of the Court of trial is correct, and the burden is on the person challenging the finding of facts on appeal to displace this presumption. – See Williams v. Johnson (1937) 2 W.A.C.A. 253. Findings of facts are matters within the special privilege of the Court of trial, where oral evidence was given, and the judge had the opportunity to see and hear the witnesses, and so watch their demeanour, and assess their veracity and credibility – See Military Governor Western State v. Afolabi Laniba & anor (1974) 1 All N.LR. (pt.2) 179. Hence where there is a finding of fact based on the credibility of a witness, a Court of Appeal will be wary to interfere – See Kponugfo v. Kada Ja (1933) 2 W.A.C.A. 24. Mr. Ijaodola for the appellant is not in this case asking us to draw inferences from the evidence different from what the learned trial judge found. Counsel did not refer us to the finding of the Court below on the facts challenged. Counsel went to the extent of impugning the credibility of witnesses a matter within the exclusive province of the trial judge – See Shell B.P. Petroleum Development Co. of Nigeria Ltd. v. His Highness Pere Cole & ors (1978) 3 S.C. 183.
Besides the fact that counsel to the appellant did not make any specific com-plaint about the acceptance by the Court below of the findings of fact by the trial judge, this Court has held in several cases, even recently, that where the ground of appeal is on concurrent findings in the two Courts below, exceptional reasons must be disclosed before one can interfere with such findings of fact. – See Over-seas Construction Ltd. v. Creek Enterprises Ltd. (1985) 3 N.W.L.R. (pt. 13) 407. If such exceptional circumstances are not shown, the facts so found are entitled to remain undisturbed – See Henry Stephens Engineering Co. Ltd. v. Complete Home Enterprises Nig. Ltd. (1987) 1 N.W.L.R. 40.; Okonkwo v. Adigwu (1985) 1 N.W.L.R. (pt. 4) 694, Ojomu v. Also (1983) 2 S.C.N.L.R. 156.
The only grounds of appeal on law are grounds 2 and 9, which without the particulars of error are as follows:-
“2. The Court of Appeal erred and misdirected itself in law and in fact in dismissing the appellant’s appeal when it cannot be said that the prosecution had proved its case beyond every reasonable doubt.”
‘9. The learned Justices of the Court of Appeal erred and misdirected them-selves in law in their view “that there is ample evidence on which the learned Judge could reach the conclusion that the Appellant had constructive knowledge that death would be probable consequence of his act and that Ground 6 therefore failed.”
It is convenient to consider the two grounds of appeal together because both allege errors of law relating to the question of the burden of proof on the prosecution. It is clear from the particulars of error in the grounds of appeal, the briefs of counsel, and in his argument before us that counsel was under a complete misapprehension of the law on the burden on the prosecution to establish the accused’s guilt.
The presumption of innocence which is an essential foundation of our adversary adjudicatory system, had a secure place in our criminal jurisprudence even before the constitutional provisions of 1960, (s.21 (4)); 1963, (s.22(4)) and 1979 (s.33(5)). Section 33(5) of the Constitution 1979 provides that “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” Accordingly section 137(1) of the Evidence Act Cap 62 has prescribed the requisite standard of proof. It is as follows –
“Section 137(1)
If the Commission of a crime by a party to proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
There is no doubt that the burden of proof in a criminal prosecution rests on the prosecution which alleges the Commission of a crime. It is the case of the prosecution which by section 135 of the Evidence Act, Cap. 62 will fail If no evidence at all were given on either side. The standard of proof required Is that of proof beyond reasonable doubt – See Alonge v. Police (1959) 4 F.S.C. 203. Proof beyond reasonable doubt is what is required to displace the constitutional presumption of innocence. Thus the question of the standard of proof required for a conviction of an accused person for a crime in respect of which he was charged and being prosecuted is a matter of degree reasonably permissible and sufficient for holding that the accused committed the offence. It is fair to point out that in a prosecution the Judge should be satisfied that the evidence before him is sufficient to establish the guilt of the accused. This is because the judge who is the unbiased umpire of the trial can only determine the standard of proof required from a consideration of the evidence of the prosecution as against that of the accused. In such a situation as in many others absolute certainty is clearly unattainable. Hence proof beyond reasonable doubt has been taken to mean such a degree of cogency which is consistent with and equivalent to a high degree of probability. It does not eliminate the possibility of any doubts whatsoever, including remote possibilities. As Denning J, expressed it in Miller v. Minister of Pensions (1947) 2 All E.R. 373,
‘The law will fail to protect the community If it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with One sentence -’of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt”.
This dictum is quite apposite in this case. The trial Judge having disbelieved the evidence of the appellant that the deceased whilst struggling to free himself to fight him slipped, fell, and knocked his head on the pedal of his Motor Cycle, and thereby sustained the injury resulting in his death, the remote possibility of the de-ceased coming to his death by means other than through the wrongful act of the appellant thereby the prosecution not proving its case against the appellant no longer arose. The question now is whether on the evidence before the learned trial Judge, the prosecution had established,
(a) the death of the deceased
(b) that death resulted from his being stabbed by the accused, and
(c) that the accused knew that his stabbing the deceased will result in death or did not care whether the death of the deceased resulted from his act. These are the essential ingredients of the offence of culpable homicide punishable with death, see s.220 of the Penal Code. The intention to kill or to cause grievous bodily harm, in this case demonstrated by stabbing the deceased on the head with a dagger, which resulted in death will be, and in this case was, sufficient to establish the offence with which appellant was charged. See Gwop Jire v. State (1965) N.N.L.R. 52.
It is clear from the evidence that at the close of the case for the prosecution, the prosecution had discharged the burden that the deceased died from the intentional or reckless act of the appellant. The burden now shifted on to the appellant to establish on the balance of probabilities, circumstances of exculpation, such as accident, self defence, insanity, etc. –
See s.137(3), Police v. Anozie (1954) 21 N.L.R. 29. The only evidence adduced by appellant having not been believed the burden of proof on him was not discharged. The onus did not shift again to the prosecution and the prosecution will now be taken to have proved its case beyond reasonable doubt. Since the story of the appellant was not believed there was no evidence upon which to compare, in the totality of the case, and consider the existence of a reasonable doubt with respect to the guilt of the accused. See R. Oshunbiyi (1961)1 All N.L.R. 453. The Court of Appeal was therefore right in holding that the case was proved beyond reasonable doubt.
All the grounds of appeal fail and are dismissed.
KAWU, J.S.C. On the 11th day of December, 1986, this appeal came up for hearing. After hearing the submissions of learned counsel for the appellant, and without calling upon respondent’s counsel, I dismissed the appeal and affirmed the decision of the Court below which had upheld the conviction of the appellant by the High Court and the sentence of death imposed upon him. I then indicated that reasons for my decision would be given today.
I had read, in draft, the lead Reasons for Judgment just delivered by my learned brother, Oputa, J.S.C. I am in complete agreement with those reasons and will respectfully adopt them as mine.
The facts, as established by evidence at the trial, are fairly simple and straight-forward. On the day of the incident, there was an argument between the appellant and the deceased, (Rasaki) over the slashing, with a razor, the deceased person’s motorcycle seat by the appellant’s younger brother. It was in the middle of this argument that the appellant dashed into his room and came out with a dagger (Exhibit 1), which he plunged into the head of the deceased, fatally wounding him. The whole incident was witnessed by 2 P.W. whose testimony was believed by the learned trial judge.
At the trial, the appellant denied the charge. He said that the deceased sustained his injury when he slipped and knocked his head against the pedal of his motor bicycle.
At the conclusion of hearing, the learned trial judge – Gbadeyan, J. gave very careful consideration to the totality of the evidence adduced and came to the conclusion, rightly in my view, that the case against the appellant had been proved be-yond reasonable doubt. The appellant was accordingly convicted as charged.
With regard to the evidence adduced at the trial, the learned trial judge ob-served in his judgment as follows:
“Equally, I accept the testimonies of PW2, PW3 and PW4. I find as a fact that PW2 was not only present at the scene but he was a most truthful eye-witness …………… PW2 directly and positively gave a credible account of the assault by the Accused on Rasaki. The assault was in the nature of a stab on the head. It led to Rasaki s unconsciousness caused by profuse bleeding and subsequent death in that state of unconsciousness some hours later as a result of trauma, shock and bleeding occasioned by the cut from a sharp object such as exhibit 1 according to the evidence of the Doctor (PW6), who attended to Rasaki from the point of admission to autopsy.”
With regard to the appellant’s defence, the learned trial judge remarked –
“I find the story of Rasaki’s head being knocked against the motorcycle as in-vented many hours later on 18/11/81 when exhibit 4 was recorded. In it, like in exhibit 3, he said that Rasaki slipped and hit his head on his motorcycle. This aspect is, to my mind, an after-thought designed to hide the truth.”
The appellant’s appeal to the Court of Appeal against his conviction by the Court of first instance was dismissed. He has further appealed to the Supreme Court.
In the brief filed by the appellant’s counsel, the only issue formulated for determination by this Court is:
‘Whether or not the prosecution had proved its case beyond reasonable doubt.”
Having given very careful consideration to the totality of the evidence adduced at the trial, and the specific findings of facts made by the learned trial judge, which findings were amply supported by the evidence adduced, I have not the slightest doubt in my mind that the learned trial judge was right in coming to the conclusion that the case against the appellant had been proved beyond reasonable doubt. The Court of Appeal was also right in affirming the decision of the trial court. In my view it would have been perverse in the extreme, on the evidence adduced; for any Court to return a verdict, other than that of guilt.
It was for the above reasons and for the fuller reasons given by my learned brother, Oputa, J.S.C. in his Reasons For Judgment that I dismissed this appeal on the 11th day of December, 1986.
Appeal dismissed.
