(2018) LPELR-45299(SC)

Transcription

1 DAJO v. STATE CITATION: In the Supreme Court of Nigeria ON FRIDAY, 13TH JULY, 2018 Suit No: SC.414/2012 Before Their Lordships: IBRAHIM TANKO MUHAMMAD Justice of the Supreme Court OLUKAYODE ARIWOOLA Justice of the Supreme Court KUMAI BAYANG AKA'AHS Justice of the Supreme Court AMINA ADAMU AUGIE Justice of the Supreme Court PAUL ADAMU GALINJE Justice of the Supreme Court Between ABUBAKAR P. DAJO - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI 1. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH: Ingredients the prosecution must prove to establish the offence of culpable homicide punishable with death "Now, in order to prove the offence of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following ingredients:- 1. That the death of a human being has taken place. 2. That such death was caused by the accused. 3. That the act that led to the death of the deceased was done with the intention of causing death or that the accused knew or had reason to believe that death would be the probable consequence of his act. All the three ingredients must be proved conjunctively before a conviction can be secured. See Oguno vs The State (2011) 7 NWLR (pt. 1246) 314; Gira vs The State (1996) 4 NWLR (Pt. 443) 375; Adava vs The State (2006) 9 NWLR (Pt. 984) 152: Akpa vs State (2007) 2 NWLR (Pt. 1019) 500: Uwagboe vs State (2007) 6 NWLR (Pt. 1031) 606."Per GALINJE, J.S.C. (Pp. 9-10, Paras. C-A) - read in context

2 2. CRIMINAL LAW AND PROCEDURE - DEFENCE OF PROVOCATION: At what instance will the defence of provocation be unsustainable "Section 222(1) of the Penal Code provides as follows:- "Culpable homicide is not punishable with death if the offender whilst deprived of the power of selfcontrol by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident." It is not all provocation that will reduce the punishment for culpable homicide punishable with death to culpable homicide not punishable with death. For provocation to reduce the punishment, it must be grave and sudden, and must be such as to deprive the accused the power of self control. The act of killing must have been done in the heat of passion before there was time for temper to cool. In applying the test in the defence of provocation, the Court will take into account the following:- 1. Whether sufficient interval has elapsed since the provocation, to allow a reasonable man time to cool; 2. Whether the act of the deceased could provoke a reasonable member of the accused's community. In the instant case, there is sufficient evidence that the deceased and other soldiers that were posted to the said polling unit flogged those people who had lined up to vote. The Appellant's wife and his child were among those who were beaten. Naturally the Appellant had every cause to be provoked. He did not attack the soldiers immediately, but left for his house which was 100 meters away and fetched his bow and arrows. Clearly the time between the attack on his wife and the time he fetched his bow and arrows and returned to the scene, constituted sufficient interval as to allow the temper of a reasonable man to cool down. In Queen vs Ngba Haaba (1961) NNLR 14 where the Appellant did not immediately attack the deceased who was found with his wife, but called his brother to see what had happened before he attacked, it was held that the defence of provocation did not avail him. The Lower Court was right in my view, when it upheld the finding of the trial Court that the defence of provocation was not available to the appellant."per GALINJE, J.S.C. (Pp , Paras. F-E) - read in context 3. CRIMINAL LAW AND PROCEDURE - DEFENCE OF PROVOCATION: When the defence of provocation will avail an accused person "The defence of provocation where successfully raised is only a mitigating factor where the offence charged is for culpable homicide under Section 221 Penal Code. And for the defence to avail an accused, the defence must adduce positive and credible evidence to establish the provocation. See: Nwede v. State (1985) 3 NWLR (Pt.13) 444; Akalezi v. State (1993) 2 NWLR (Pt. 273) 1. Put differently, the following facts must not be disproved by the prosecution- (a) that the act relied on by the accused was obviously provocative; (b) that the provocative act deprived the accused of self control; (c) that the provocative act came from the deceased; (d) that the action the accused took was spontaneous with no time for passion to cool down; and (e) that the force used by the accused in repelling the provocation was not disproportionate in the circumstance. See: Nwokearu v. State (2010) 15 NWLR (Pt.1215) 1."Per AKA'AHS, J.S.C. (P. 27, Paras. A- F) - read in context 4. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in criminal cases; whether the burden of proof on the prosecution can shift to the accused person "Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 and Section 135(1) and (2) of the Evidence Act have placed squarely the burden of proof in criminal cases on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Akpan vs The State (1990) 7 NWLR (Pt. 160) 101: Adamu vs A.G. Bendel State (1986) 2 NWLR (Pt. 22) 284; Solola vs The State (2005) 5 SC (Pt.1) 135; Oladele vs Nigerian Army (2004) 6 NWLR (Pt. 868) 166."Per GALINJE, J.S.C. (P. 5, Paras. A-D) - read in context

3 5. EVIDENCE - MEDICAL EVIDENCE: Whether the absence of medical evidence as to the cause of death is fatal to the case of the prosecution "The prosecution neither produced medical report that suggested that one Dahi Doma died nor was there evidence before the trial Court as to the person who identified the corpse of Dahi Doma. However, this Court in a number of cases has held that conviction can properly be secured in the absence of corpus delicti where there is sufficient, compelling circumstantial evidence to lead to the inference that the man had been killed. In Joseph Ogundipe & Ors vs The Queen (1954) 14 WACA 458, the appellants were convicted of the murder of one Apalara whose body was not found. There was evidence accepted by the trial Court that he was attacked at his house along Tapa Street in the night of the 3rd of January, 1953 by the appellants. There was evidence of human blood found from the place of attack to the foreshore. The absence of corpus delicti notwithstanding, the West African Court of Appeal confirmed the conviction. In Edim vs State (1972) 4 SC 160 at 162, this Court held:- "It is true that the body of the deceased has not been recovered. But it is settled law that where there is positive evidence that the victim has died, failure to recover his body needs not frustrate conviction." In Ayinde vs State (1972) 3 SC 153 at this Court, per Coker JSC said:- "The law as regards the absence of corpus delicti is that a Court may still convict an accused person for murder even though the dead body cannot be found, provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed." Finally in Ochemaje vs State (2008) 15 NWLR (Pt.1109) 57 at 77 paras C - D, this Court per Tabai JSC said:- "The correct legal principle therefore is that the absence of a corpus delicti notwithstanding a person can still be convicted for murder if there is strong unequivocal and compelling evidence that the victim of the alleged crime is dead." Where a victims corpse is not found, there will be no medical report. That is clearly understandable. However in the instant case, the corpse was found and there is evidence that a medical doctor examined the corpse and issued a report. At page 39 of the record of this appeal, Mr. Gangs, learned counsel for the Respondent stated as follows:- "The case is for continuation of hearing. Unfortunately the witness we intend to call, i.e the Medical Doctor has left the services of the Adamawa State Government and is now with the Federal Medical Centre, Jalingo. In view of this, we shall once again be asking for yet another adjournment to enable us serve him." From the record of this appeal, it is clear that the prosecutor made concerted effort to get the medical report. Has his failure to tender the medical report vitiated the conviction of the Appellant? I do not think so. In Akpa vs State (2008) 14 NWLR (Pt.1106) 72 at 95 paras D - F, this court per Tobi JSC said:-"there was no eye witness of the killing. There is however enough circumstantial evidence. It is the law that an accused person could be convicted of murder even if the body was not found, if there is enough compelling circumstantial evidence that the accused person killed the deceased. In this appeal, the body of the deceased was recovered, though piece-meal. A Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without hearing medical evidence. It is also the law that for circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that the murder was committed by the accused." See Ibo vs The State (1971) NMLR 245; The State vs Ifu (1964) B ENLR 28: Atano vs A.G Bendel State (1988) 2 NWLR (Pt.75) 201; Gabriel vs State (1989) 5 NWLR (Pt.122) 457: Ikomi vs State (1986) 3 NWLR (Pt.28) 340. In the instant case, there is evidence that the Appellant was present at the polling unit where the deceased and others were carrying out security work. Appellant confessed that he shot and killed a soldier. The confessional statement was admitted in evidence without objection and his admission that he shot an arrow and killed a soldier was never contradicted. In his testimony in Court, Appellant strengthened his confessional statement Exhibit A by repeating his admission that he shot his arrow at the soldiers. These pieces of uncontradicted evidence in my view have clearly shown that the deceased died. The fact that a medical report was not produced does not diminish the fact that the deceased died."per GALINJE, J.S.C. (Pp , Paras. D-B) - read in context

4 6. EVIDENCE - CONFESSIONAL STATEMENT: Whether an interpreter who interprets an alleged confessional statement to a police officer as well as the police officer must be called to testify before the statement will be admitted "The only evidence that connects the Appellant with the death of the deceased is the Appellant's extrajudicial statement. Learned counsel for the Appellant had argued that Exhibit A is inadmissible in evidence because the person who interpreted it from Hausa to English and vice versa was not called as a witness and that there is no endorsement of an illiterate jurat. The law is settled that where an interpreter has had to be used in the taking down of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down. This Court has held that such a statement will amount to hearsay and can only be confirmed by the interpreter who must testify as to the questions he put to the accused on behalf of the interviewer and the answers given to him by the accused person in the latter's language which he interpreted to the interviewer in English language. See R vs. Ogbuewu 12 WACA 483: Nwaeze vs The State (1996) 2 NWLR (Pt. 428) 1 at 20: R vs Gidado 6 WACA 6; R vs Eakwakwa (1960) 5 FSC 12. A person who complains that the interpreter of a statement of an accused person is different from the recorder and that the interpreter has not been called as a witness, has the onerous responsibility to give the name of the person who recorded the statement as well as the name of the interpreter. This is by virtue of Section 136(1) of the Evidence Act 2011 which provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. The burden may in course of trial shift from one side to the other. In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the Court as to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively. See Adamu vs The State (1991) 4 NWLR (Pt. 187) 530: Chukwu vs The State (1992) 1 NWLR (Pt. 217) 255; Ogbodu vs The State (1981)NWLR (Pt.54) 20. In the instant case, the Appellant's statement was recorded by PW1, whose name is Geoffrey Haziel, a police corporal, through whom the said statement was tendered and admitted in evidence as Exhibit A. Learned counsel for the Appellant did not cross-examine him on the vexed issue of interpretation of the Appellant's statement. The Appellant testified as DW1 before the trial Court. No issue was raised as to who the interpreter of his statement was. The only thing the Appellant said with regard to his statement was an admission under cross examination that he remembered making a statement to the police when he was arrested. The issue of the prosecution's failure to call the person who interpreted the statement of the appellant was neither raised at the trial Court nor was it raised at the Court of Appeal. Learned counsel for the Appellant has taken the liberty to raise it here for the first time. In criminal cases especially where an appellant is sentenced to death, all the defences or evidence apparent on the processes filed before an appellate Court in favour of the appellant can be properly looked into and considered by the Court, even though the appellant did not canvass them in his submissions. In Annabi vs State (2008) 13 NWLR (Pt.1103) 179 at 201 paras B - C, this Court, per Onnoghen JSC (as he then was) held:- "It is also settled law that where a Lower Court failed to consider the defences available to an accused appellant, the appellate Court is on as good a position as the Lower Court to consider the said defence provided there are facts available on record to support them," See Kaza vs State (2008) 7 NWLR (Pt.1085) 125 at 169 paras G - H: Idiok vs State (2008) 13 NWLR (Pt.1104) 225; Maiyaki v. State (2008) 15 NWLR (Pt.1109) 173: Ada vs State (2008) 13 NWLR (Pt.1103) 149. The Appellant's statement Exhibit A is before the Court. A close perusal of the signature of the interpreter and that of the recorder, has clearly shown that the person who recorded Exhibit A is also the person who interpreted it. It follows therefore that PW1 acted both as the interpreter and the recorder. The statement is admissible in evidence even without insertion of illiterate jurat. Jurat is a latin word which means "to swear"' An illiterate jurat is a certification added to an affidavit or deposition by a witness stating when and before what authority the deposition or affidavit was made and that the person affected by such deposition or affidavit, though an illiterate has understood the meaning of the contents of such deposition. It is usually associated with civil cases. In criminal litigation, once it is shown that the contents of a document was read and interpreted to the accused and he understood same, such document is admissible, especially where the accused is represented by a counsel who raises no objection to the admission of such document. Exhibit A in the instant case was admitted in evidence without objection by learned counsel for the Appellant, it is therefore relevant to this case and therefore admissible in evidence."per GALINJE, J.S.C. (Pp , Paras. C-E) - read in context

5 7. EVIDENCE - CALLING OF WITNESS(ES): Discretion of the prosecution in calling witnesses "Whereas failure of the prosecution to call vital witnesses could be fatal to the prosecution's case, it is the prerogative of the prosecution to call witnesses relevant to its case. It is not bound to call every person that was linked to the scene of crime by physical presence to give evidence of what he saw. Once persons who can testify to the actual commission of a crime have done so, it will suffice for the satisfaction of proof beyond reasonable doubt in line with Section 135(1) (2) (3) of the Evidence Act. In Ochiba vs State (2011) 17 NWLR (Pt.1277) 663 at 695. paras C - H. this Court, per Adekeye JSC, held:- "It is not also incumbent on the prosecution to call every eye witness to testify in order to discharge the onus placed on it by law of proving a criminal case beyond reasonable doubt and as a matter of fact a single witness who gives cogent eye witness account of the incidence will suffice even in a murder case." See Effiong v. State (1998) 8 NWLR (Pt. 562) 362; Usufu vs. The State (2007) 3 NWLR (Pt. 1020) 94; Garko vs. State (2006) 6 NWLR (Pt. 977) 524. In this case, the trial Court was satisfied with the evidence before it and on the basis of that evidence found the Appellant guilty of the offence for which he was charged, tried and convicted. The decision of the trial Court was confirmed by the Lower Court. Such concurrent finding of facts by the two Lower Courts can only be interfered with by this Court if it is perverse. I am not convinced that there is any reason for me to so interfere in the circumstances of the issues canvassed in support of the first issue for determination of this appeal. Exhibit A is direct and has admitted the involvement of the Appellant in the offence for which he was charged. The trial Court was right to have relied on that exhibit alone to convict him. See Odua vs FRN (2002) 5 NWLR (Pt.761) 615."Per GALINJE, J.S.C. (Pp , Paras. F-C) - read in context

6 PAUL ADAMU GALINJE, J.S.C. (Delivering the Leading Judgment): The Appellant herein and three other accused person were arraigned before the High Court of Adamawa State holden at Yola, charged with conspiracy to beat, stone and shoot security agents with poisoned arrows, which beating, stoning and shooting resulted in the death of one Dahi Doma, a soldier under Section 96 of the Penal Code and punishable under Section 97(1) of the same code. The Appellant was separately charged with culpable homicide punishable under Section 221 of the Penal Code. At the close of the prosecution's case, a no case submission was made on behalf of the 3rd and 4th accused persons, as well as the 2nd accused person by their respective counsel. The trial Court upheld the no case submissions in its ruling delivered on the 12th December, 2007, in which the 2nd, 3rd and 4th accused persons were discharged pursuant to Section 191 (3) of the Criminal Procedure Code. The Appellant who was the first accused at the trial Court testified in his defence and closed his case. In a reserved and considered judgment delivered on the 26th June, 2008, Banu., (as he then was) 1

7 found the Appellant guilty of culpable homicide punishable with death under Section 221 of the Penal Code and sentenced him to death by hanging. Appellant is dissatisfied with the conviction and sentence. Being aggrieved, he appealed to the Court of Appeal. In a unanimous decision of the justices of the Lower Court that heard the appeal, delivered on the 28th of June, 2012, his appeal was dismissed. The instant appeal is against the decision of the Lower Court. The notice of appeal filed on the 24th September, 2012 contains four grounds of appeal. Parties filed and exchanged briefs of argument. Mr. Taiwo Kupolati, learned counsel for the Appellant, leading Mr. K. U. Ani formulated two issues for determination of this appeal. I reproduce these issues hereunder as follows: (1) Whether the Court of Appeal was right in affirming the conviction and sentence of the Appellant to death for the offence of culpable homicide pursuant to Section 221(b) of the Penal Code Law, despite the apparent failure of the prosecution to establish all the ingredients of the offence of culpable homicide beyond reasonable doubt. 2

8 (2) Whether the Court of Appeal was right in law when it held that the defence of provocation does not avail the Appellant against the charge of culpable homicide notwithstanding that the Appellant led positive and credible evidence to prove the defence of provocation. Mr. M. M. Nurudeen, learned counsel for the Respondent submitted two issues for determination of this appeal as follows:- 1. Whether the learned Justices of the Court of Appeal were right to affirm the judgment of the trial Court convicting the appellant for the offence of calpable homicide punishable with death contrary to Section 221 of the Penal Code. 2. Whether the Justices of the Court of Appeal were right to affirm the decision of the trial Court that the defence of provocation was not available to the Appellant. The issues formulated by parties are similar. The Appellant being the aggrieved party will have his grievances listened to. For this reason, I shall determine this appeal on the basis of the issues submitted by the Appellant. In doing so, I shall consider them in the order in which they were argued by the Appellant. 3

9 Before I consider the argument of learned counsel on both sides, I will like to set out albeit in brief the facts of this case as reflected in the Appellant's testimony. The incidence that has given birth to this appeal took place at a polling unit situated at Yandang Karaje in Mayo Belwa Local Government of Adamawa State during the conduct of election into Adamawa State House of Assembly. The Appellant admitted that he was present at the polling unit when soldiers arrived and started beating voters who had lined up to cast their votes. One of those beaten was his wife who was carrying a baby of about four months. According to the Appellant, his wife was kicked with legs and she fell down with the baby who sustained injury. This maltreatment of his wife infuriated him and as a result he went to his house, which was about 100 meters away and collected his bow and arrows and returned to the polling unit. When the soldiers saw him with his bow and arrows, they took to their heels, and as they ran away they shot their guns into the air. It was at this point he shot his arrow at them. According to the Appellant, the youths who had gathered at the poling unit started shouting and threw stones at the soldiers. 4

10 After shooting the arrow at the soldiers, Appellant ran away from the village to Baruwa in Gashaka Local Government where he was subsequently arrested. Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 and Section 135(1) and (2) of the Evidence Act have placed squarely the burden of proof in criminal cases on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Akpan vs The State (1990) 7 NWLR (Pt. 160) 101: Adamu vs A.G. Bendel State (1986) 2 NWLR (Pt. 22) 284; Solola vs The State (2005) 5 SC (Pt.1) 135; Oladele vs Nigerian Army (2004) 6 NWLR (Pt. 868) 166. While arguing the first issue for determination of this appeal, learned counsel for the Appellant submitted that the human being alleged to have been killed is one Dahi Doma. According to him, the only document from which it could be inferred that the said Dahi Doma actually died is the charge sheet. It is learned counsel's contention that there is no single direct and credible proof of the death of the said Dahi Doma, as such, the Lower Court was wrong 5

11 to have upheld the decision of the trial Court that Dahi Doma died. Learned counsel cited the authorities in Moses Jua vs The State (2010) 4 NWLR (Pt.1184) 217: Babuga vs The State (1996) 7 NWLR (Pt. 460) 279 at 296 and contended that the Lower Court wrongly construed the decision contained in the two cases as authority that a man can be convicted for murder in the absence of both medical and eye witness report. In a further argument, learned counsel submitted that the evidence presented before the trial Court shows clearly that the cause of the death of the deceased was disputed and not obvious as such the prosecution was required to provide medical evidence to show the extent and nature of the injury that led to the deceased's death. Learned counsel submitted that there is evidence that angry youth in the village hurled stones at the soldiers who were on duty at the polling unit, as such any other weapon could have caused the death of Dahi Doma other than the arrow that was shot by the Appellant. It is learned counsels' view that the prosecution failed woefully to prove the cause of the death of the deceased. 6

12 In aid learned counsel cited Apugo vs The State (2006) ALL FWLR (Pt. 341) 1253; Aiguoreghian vs. State (2004) ALL FWLR (Pt.195) 716; Idowu v. State (2000) FWLR (Pt.16) 2676 at 2702; Ononuju vs. State (1976) 5 SC 1: Onyenankeya vs State (1964) NMLR 43. Still in argument, learned counsel submitted that the trial Court relied on circumstantial evidence which was not compelling enough to reach a conclusion that the Appellant committed the offence. According to the learned counsel, the Lower Court was wrong in upholding the trial Court's finding. In support, learned counsel cited the authorities in Lori vs State (1980) 8-11 SC 1 at ; R vs Taylor 21- Cr. App. R 20: Adie v. State (1980) 1 2 SC 116; Ukorah vs. State (1977) 4 SC 167; Ansha vs. State (1998) 2 NWLR (Pt. 537) 246 at 265. In addition to the complaints enumerated hereinabove, the Appellant's further quarrel with the judgment of the Lower Court include:- 1. Lack of evidence that the deceased died on the spot. 2. Shabby investigation by the police. 3. Suppression and withholding of vital documentary evidence by the prosecution. Such documentary evidence are the police investigation report and the arrow that killed the deceased. 7

13 4. The statement of the Appellant, Exhibit A inadmissible in law because interpreter was not called as a witness and there is no indorsement of an illiterate jurat. 5. The prosecution's failure to call vital witnesses. Learned counsel cited several authorities in aid of his submissions and in conclusion urged this Court to resolve the first issue in favour of the Appellant. Some of the issues raised by the Appellant are clearly irrelevant in this appeal. I will however in course of this judgment consider relevant issues and some of the authorities cited by learned counsel for the Appellant. Learned counsel for the Respondent in reply submitted that the prosecution did prove its case beyond reasonable doubt as the Appellant's confessional statement, Exhibit A is enough to sustain the conviction and the sentence imposed on the Appellant. In aid, learned counsel cited Adio vs The State (1986) 2 NWLR (Pt. 24) 581 at 5931 Emeka vs The State (2001) 14 NWLR (Pt. 734) 666 at 686; Lori vs The State (1980) 8-11 SC 81; Buje vs The State (2004) 4 SCNJ 93: Abasi vs. The State (1992) 5 NWLR (Pt. 260) 386; Gira vs The State (1996) 4 NWLR (Pt. 443) 375 at

14 On whether a medical report is necessary in the circumstances of this case, learned counsel submitted that where the cause of death is obvious, medical evidence ceases to be of any practical legal necessity. According to the learned counsel, the appellant's confessional statement and evidence before the trial Court have settled the matter completely. In support, learned counsel cited Sunday Uluebeka vs The State (2000) 4 SCNJ 93 at 951 Buje vs The State (1991) 4 NWLR (Pt.185) 287 at 291. Now, in order to prove the offence of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following ingredients:- 1. That the death of a human being has taken place. 2. That such death was caused by the accused. 3. That the act that led to the death of the deceased was done with the intention of causing death or that the accused knew or had reason to believe that death would be the probable consequence of his act. All the three ingredients must be proved conjunctively before a conviction can be secured. See Oguno vs The State (2011) 7 NWLR (pt. 1246) 314; Gira vs The State 9

15 (1996) 4 NWLR (Pt. 443) 375; Adava vs The State (2006) 9 NWLR (Pt. 984) 152: Akpa vs State (2007) 2 NWLR (Pt. 1019) 500: Uwagboe vs State (2007) 6 NWLR (Pt. 1031) 606. The learned trial judge relied on the confessional statement PW1, Corporal Geoffrey Haziel is the Investigation Police Officer (IPO), who recorded the statement of the Appellant. That statement was admitted and marked Exhibit A at the trial Court. Part of Exhibit A reads as follows:- "There was an army at the pooling (sic) unit before the coming of the other security men. So the remaining two soldiers rushed to resque (sic) him by shooting their gun in the air two times. It was there I used my bow and arrow to shot (sic) the soldier man to death." In his evidence in chief, the Appellant admitted that he shot his arrow at the soldiers, but could not say whether the arrow hit any of the soldiers. of the Appellant, and the evidence of PW3 in reaching the conclusion that the first ingredient of the offence of culpable homicide was established. This is what the learned trial judge said at page 75 of the printed record of this appeal- 10

16 "Based on the confession of the accused person in Exhibit A therefore and the evidence of PW3 which I have considered earlier in this judgment, I am satisfied that the first ingredient, i.e that the death of a human being has actually taken place, has been established by the prosecution and so I hold." The Lower Court upheld this finding at page 161 paragraph 4 of the record when it held thus:- "In the instant case, from both Exhibit A (confessional statement of the accused) and his evidence in Court and the evidence of PM3, the deceased died as a result (sic of) his being shot by the accused with an arrow." The prosecution neither produced medical report that suggested that one Dahi Doma died nor was there evidence before the trial Court as to the person who identified the corpse of Dahi Doma. However, this Court in a number of cases has held that conviction can properly be secured in the absence of corpus delicti where there is sufficient, compelling circumstantial evidence to lead to the inference that the man had been killed. In Joseph Ogundipe & Ors vs The Queen (1954) 14 WACA 458, the appellants were convicted of the murder of one Apalara whose body was not found. 11

17 There was evidence accepted by the trial Court that he was attacked at his house along Tapa Street in the night of the 3rd of January, 1953 by the appellants. There was evidence of human blood found from the place of attack to the foreshore. The absence of corpus delicti notwithstanding, the West African Court of Appeal confirmed the conviction. In Edim vs State (1972) 4 SC 160 at 162, this Court held:- "It is true that the body of the deceased has not been recovered. But it is settled law that where there is positive evidence that the victim has died, failure to recover his body needs not frustrate conviction." In Ayinde vs State (1972) 3 SC 153 at this Court, per Coker JSC said:- "The law as regards the absence of corpus delicti is that a Court may still convict an accused person for murder even though the dead body cannot be found, provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed." Finally in Ochemaje vs State (2008) 15 NWLR (Pt.1109) 57 at 77 paras C - D, this Court per Tabai JSC said:- 12

18 "The correct legal principle therefore is that the absence of a corpus deticti notwithstanding a person can still be convicted for murder if there is strong unequivocal and compelling evidence that the victim of the alleged crime is dead." Where a victims corpse is not found, there will be no medical report. That is clearly understandable. However in the instant case, the corpse was found and there is evidence that a medical doctor examined the corpse and issued a report. At page 39 of the record of this appeal, Mr. Gangs, learned counsel for the Respondent stated as follows:- "The case is for continuation of hearing. Unfortunately the witness we intend to call, i.e the Medical Doctor has left the services of the Adamawa State Government and is now with the Federal Medical Centre, Jalingo. In view of this, we shall once again be asking for yet another adjournment to enable us serve him." From the record of this appeal, it is clear that the prosecutor made concerted effort to get the medical report. Has his failure to tender the medical report vitiated the conviction of the Appellant? I do not think so. In Akpa vs State (2008) 14 NWLR (Pt.1106) 72 at 95 paras D F, this court per Tobi JSC said:- 13

19 "There was no eye witness of the killing. There is however enough circumstantial evidence. It is the law that an accused person could be convicted of murder even if the body was not found, if there is enough compelling circumstantial evidence that the accused person killed the deceased. In this appeal, the body of the deceased was recovered, though piece-meal. A Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without hearing medical evidence. It is also the law that for circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that the murder was committed by the accused." See Ibo vs The State (1971) NMLR 245; The State vs Ifu (1964) B ENLR 28: Atano vs A.G Bendel State (1988) 2 NWLR (Pt.75) 201; Gabriel vs State (1989) 5 NWLR (Pt.122) 457: Ikomi vs State (1986) 3 NWLR (Pt.28) 340. In the instant case, there is evidence that the Appellant was present at the polling unit where the deceased and others were carrying out security work. Appellant confessed that he shot and killed a soldier. The confessional statement was admitted in evidence without 14

20 objection and his admission that he shot an arrow and killed a soldier was never contradicted. In his testimony in Court, Appellant strengthened his confessional statement Exhibit A by repeating his admission that he shot his arrow at the soldiers. These pieces of uncontradicted evidence in my view have clearly shown that the deceased died. The fact that a medical report was not produced does not diminish the fact that the deceased died. The question now is whether the prosecution proved beyond reasonable doubt that the death of Dahi Doma was caused by the Appellant. The only evidence that connects the Appellant with the death of the deceased is the Appellant's extra-judicial statement. Learned counsel for the Appellant had argued that Exhibit A is inadmissible in evidence because the person who interpreted it from Hausa to English and vice versa was not called as a witness and that there is no endorsement of an illiterate jurat. The law is settled that where an interpreter has had to be used in the taking down of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down. 15

21 This Court has held that such a statement will amount to hearsay and can only be confirmed by the interpreter who must testify as to the questions he put to the accused on behalf of the interviewer and the answers given to him by the accused person in the latter's language which he interpreted to the interviewer in English language. See R vs. Ogbuewu 12 WACA 483: Nwaeze vs The State (1996) 2 NWLR (Pt. 428) 1 at 20: R vs Gidado 6 WACA 6; R vs Eakwakwa (1960) 5 FSC 12. A person who complains that the interpreter of a statement of an accused person is different from the recorder and that the interpreter has not been called as a witness, has the onerous responsibility to give the name of the person who recorded the statement as well as the name of the interpreter. This is by virtue of Section 136(1) of the Evidence Act 2011 which provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. The burden may in course of trial shift from one side to the other. In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the Court as to the 16

22 opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively. See Adamu vs The State (1991) 4 NWLR (Pt. 187) 530: Chukwu vs The State (1992) 1 NWLR (Pt. 217) 255; Ogbodu vs The State (1981)NWLR (Pt.54) 20. In the instant case, the Appellant's statement was recorded by PW1, whose name is Geoffrey Haziel, a police corporal, through whom the said statement was tendered and admitted in evidence as Exhibit A. Learned counsel for the Appellant did not cross-examine him on the vexed issue of interpretation of the Appellant's statement. The Appellant testified as DW1 before the trial Court. No issue was raised as to who the interpreter of his statement was. The only thing the Appellant said with regard to his statement was an admission under cross examination that he remembered making a statement to the police when he was arrested. The issue of the prosecution's failure to call the person who interpreted the statement of the appellant was neither raised at the trial Court nor was it raised at the Court of Appeal. Learned counsel for the Appellant has taken the liberty to raise it here for the first time. 17

23 In criminal cases especially where an appellant is sentenced to death, all the defences or evidence apparent on the processes filed before an appellate Court in favour of the appellant can be properly looked into and considered by the Court, even though the appellant did not canvass them in his submissions. In Annabi vs State (2008) 13 NWLR (Pt.1103) 179 at 201 paras B C, this Court, per Onnoghen JSC (as he then was) held:- "It is also settled law that where a Lower Court failed to consider the defences available to an accused appellant, the appellate Court is on as good a position as the Lower Court to consider the said defence provided there are facts available on record to support them," See Kaza vs State (2008) 7 NWLR (Pt.1085) 125 at 169 paras G - H: Idiok vs State (2008) 13 NWLR (Pt.1104) 225; Maiyaki v. State (2008) 15 NWLR (Pt.1109) 173: Ada vs State (2008) 13 NWLR (Pt.1103) 149. The Appellant's statement Exhibit A is before the Court. A close perusal of the signature of the interpreter and that of the recorder, has clearly shown that the person who recorded Exhibit A is also the person who interpreted it. It follows therefore that PW1 acted both 18

24 as the interpreter and the recorder. The statement is admissible in evidence even without insertion of illiterate jurat. Jurat is a latin word which means "to swear"' An illiterate jurat is a certification added to an affidavit or deposition by a witness stating when and before what authority the deposition or affidavit was made and that the person affected by such deposition or affidavit, though an illiterate has understood the meaning of the contents of such deposition. It is usually associated with civil cases. In criminal litigation, once it is shown that the contents of a document was read and interpreted to the accused and he understood same, such document is admissible, especially where the accused is represented by a counsel who raises no objection to the admission of such document. Exhibit A in the instant case was admitted in evidence without objection by learned counsel for the Appellant, it is therefore relevant to this case and therefore admissible in evidence. Learned counsel for the Appellant argued forcefully that the prosecution withheld the arrow that was used in killing the deceased because if it was produced, its inspection 19

25 by the Court would have created a doubt in the mind of the learned trial judge as to whether the arrow was capable of killing a human being. This argument is not tenable in this case as there was no evidence before the trial Court that the arrow was found and was deliberately withheld. Learned counsel's argument would have been relevant if there was evidence that the prosecution withheld the arrow after it was found in order to suppress evidence that would have been favourable to the Appellant. It is impossible to withhold anything whose existence is not ascertained. Finally on issue one, learned counsel for the Appellant submitted that the failure of the prosecution to call the medical doctor who examined the corpse of the deceased and issued a medical report as well as Samaila Abdullahi, a soldier attached to the 232 Tank Battalion, Nigerian Army Yola, who according to him, are vital witnesses, is fatal to the prosecution's case. Whereas failure of the prosecution to call vital witnesses could be fatal to the prosecution's case, it is the prerogative of the prosecution to call witnesses relevant to its case. 20

26 It is not bound to call every person that was linked to the scene of crime by physical presence to give evidence of what he saw. Once persons who can testify to the actual commission of a crime have done so, it will suffice for the satisfaction of proof beyond reasonable doubt in line with Section 135(1) (2) (3) of the Evidence Act. In Ochiba vs State (2011) 17 NWLR (Pt.1277) 663 at 695. paras C - H. this Court, per Adekeye JSC, held:- "It is not also incumbent on the prosecution to call every eye witness to testify in order to discharge the onus placed on it by law of proving a criminal case beyond reasonable doubt and as a matter of fact a single witness who gives cogent eye witness account of the incidence will suffice even in a murder case." See Effiong v. State (1998) 8 NWLR (Pt. 562) 362; Usufu vs. The State (2007) 3 NWLR (Pt. 1020) 94; Garko vs. State (2006) 6 NWLR (Pt. 977) 524. In this case, the trial Court was satisfied with the evidence before it and on the basis of that evidence found the Appellant guilty of the offence for which he was charged, tried and convicted. The decision of the trial Court was confirmed by the Lower Court. 21

27 Such concurrent finding of facts by the two Lower Courts can only be interfered with by this Court if it is perverse. I am not convinced that there is any reason for me to so interfere in the circumstances of the issues canvassed in support of the first issue for determination of this appeal. Exhibit A is direct and has admitted the involvement of the Appellant in the offence for which he was charged. The trial Court was right to have relied on that exhibit alone to convict him. See Odua vs FRN (2002) 5 NWLR (Pt.761) 615. The first issue for determination of this appeal is resolved against the appellant. On the second issue for determination of this appeal, learned counsel for the Appellant argued that the Lower Court erred in law when it held that the defence of provocation does not avail the Appellant. According to the learned counsel, the evidence given at the trial Court shows that the shooting of the arrow by the Appellant was not premeditated, but was rather induced by a sudden natural and contemporaneous feeling of anger arising from the inhumane assault of the Appellant's wife and his four months old child by the deceased. Section 222(1) of the Penal Code provides as follows:- 22

28 "Culpable homicide is not punishable with death if the offender whilst deprived of the power of selfcontrol by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident." It is not all provocation that will reduce the punishment for culpable homicide punishable with death to culpable homicide not punishable with death. For provocation to reduce the punishment, it must be grave and sudden, and must be such as to deprive the accused the power of self control. The act of killing must have been done in the heat of passion before there was time for temper to cool. In applying the test in the defence of provocation, the Court will take into account the following:- 1. Whether sufficient interval has elapsed since the provocation, to allow a reasonable man time to cool; 2. Whether the act of the deceased could provoke a reasonable member of the accused's community. In the instant case, there is sufficient evidence that the deceased and other soldiers that were posted to the said polling unit flogged those people who had lined up to vote. 23

29 The Appellant's wife and his child were among those who were beaten. Naturally the Appellant had every cause to be provoked. He did not attack the soldiers immediately, but left for his house which was 100 meters away and fetched his bow and arrows. Clearly the time between the attack on his wife and the time he fetched his bow and arrows and returned to the scene, constituted sufficient interval as to allow the temper of a reasonable man to cool down. In Queen vs Ngba Haaba (1961) NNLR 14 where the Appellant did not immediately attack the deceased who was found with his wife, but called his brother to see what had happened before he attacked, it was held that the defence of provocation did not avail him. The Lower Court was right in my view, when it upheld the finding of the trial Court that the defence of provocation was not available to the appellant. The second issue is also resolve against the appellant. Although I find no merit in this appeal which I dismiss, I however very much deprecate the conduct of the security men including the deceased who were posted to Yandang Karaje polling unit to secure the place against violence. 24

30 PW3 and the Appellant admitted that these security men flogged voters who had lined up to vote for no just cause. It appears that these security men behaved in an uncivilized and unruly manner which resulted in the confusion that led to the incidence for which the appellant is sentenced to death. I will therefore strongly recommend to the Governor of Adamawa State to commute the sentence of death imposed on the Appellant to 10 years imprisonment. I so recommend. Appeal dismissed. IBRAHIM TANKO MUHAMMAD, J.S.C.: This is an appeal against the decision of the Court of Appeal, Yola Division, delivered on the 28th day of June, Having had the advantage of reading the judgment of my learned brother, Galinje, JSC, I agree with my Lord that the appeal lacks merit and should be dismissed. The appeal is hereby dismissed by me. I adopt all orders made in the lead judgment. OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Galinje, JSC just delivered. I agree entirely with the reasoning and conclusion of the leading judgment that the appeal lacks merit and should be dismissed. I too will dismiss the appeal. Appeal dismissed.

31 25

32 KUMAI BAYANG AKA'AHS, J.S.C.: I read before now the leading judgment of my learned brother, Galinje JSC wherein he found that there is no merit in the appeal. However, in view of the circumstances under which the offence was committed he recommended that the death sentence be commuted to imprisonment for ten years. I entirely agree with him. The appellant made an extra-judicial statement which was admitted in evidence without objection as Exhibit A. In part of Exhibit "A" he stated as follows:- "As some of them came back to vote, the soldier man again continue beating them and as a result he beat my wife who was by then carrying a baby on her back. He also beat her on the legs and as a result I grew annoyed, went back home and carried my bow and arrow while the crowd started stoning him. There was an army at the Polling Unit before the coming of the other security men. So the remaining two soldiers rushed to rescue him by shooting their gun in the air two times. It was there I used my bow and arrow to shoot the soldier man to death." 26

33 By this statement, the appellant tried to justify his action on provocation and possible self defence. The defence of provocation where successfully raised is only a mitigating factor where the offence charged is for culpable homicide under Section 221 Penal Code. And for the defence to avail an accused, the defence must adduce positive and credible evidence to establish the provocation. See: Nwede v. State (1985) 3 NWLR (Pt.13) 444; Akalezi v. State (1993) 2 NWLR (Pt. 273) 1. Put differently, the following facts must not be disproved by the prosecution (a) that the act relied on by the accused was obviously provocative; (b) that the provocative act deprived the accused of self control; (c) that the provocative act came from the deceased; (d) that the action the accused took was spontaneous with no time for passion to cool down; and (e) that the force used by the accused in repelling the provocation was not disproportionate in the circumstance. See: Nwokearu v. State (2010) 15 NWLR (Pt.1215) 1. There is no doubt that the deceased provoked the appellant by beating his wife who was carrying a child on her back while she was trying 27

34 to vote and there was no justifiable reason for doing so. Security personnel are usually deployed to polling stations to maintain law and order and to ensure the smooth conduct of elections and not to molest anyone. The deceased was armed with a gun and there were other soldiers at the polling station. The incident that led to the deceased's death is quite unfortunate but the appellant did not set out to kill the deceased from the word go. It is on account of this and the more detailed reasons contained in the judgment of my learned brother Galinje JSC, that I endorsed the recommendation that the death sentence passed on the appellant be commuted to imprisonment for ten years. AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment delivered by my learned brother, Galinje, JSC, and I agree with his detailed reasons and conclusion that this appeal is devoid of merit and it is hereby dismissed. I also recommend that the death sentence passed on the appellant be commuted to imprisonment for ten years. Appeal dismissed. 28