(2017) LPELR-43260(CA)

Transcription

1 TOBI v. STATE CITATION: MODUPE FASANMI In the Court of Appeal In the Ibadan Judicial Division Holden at Ibadan CHINWE EUGENIA IYIZOBA HARUNA SIMON TSAMMANI ON THURSDAY, 6TH JULY, 2017 Suit No: CA/IB/138C/2015 Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal OGUNLEYE TOBI - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI 1. APPEAL - INTERFERENCE WITH EVALUATION OF EVIDENCE: Circumstance(s) when an Appellate Court will not interfere with evaluation of evidence made by a Trial Court "There is also the direct eye witness evidence of PW1, the wife of the deceased who saw it all. She was taken to the Police station along with the Appellant the day the unfortunate incident occurred. Her statement and that of the Appellant were taken by the Police that same night. She had no time to fabricate or colour her evidence to fit any preconceived notion. Her evidence was not shaken by the cross-examination. The learned trial judge who had the primary duty of evaluation of evidence and ascribing probative value to the evidence heard her, saw her, watched her demeanour and believed her. The trial judge properly evaluated and appraised the facts. There is nothing perverse in his evaluation of the evidence. We have no reason whatever to interfere with his evaluation of the facts. See ABEKE V THE STATE (2007) ALL FWLR (PT. 366) 664; NKEBISI & ANOR V THE STATE (2010) LPELR.SC.395/2002; ABIODUN V STATE (2013) LPELR.SC.484/2011."Per IYIZOBA, J.C.A. (P. 40, Paras. A-E) - read in context 2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER: Essential ingredients that must be proved by the prosecution to ground a conviction for murder "It is well settled that in a charge of Murder, the prosecution has the burden of proving the following ingredients beyond reasonable doubt namely (1) that the deceased had died; (2) that the death of the deceased resulted from the act of the accused; and (3) that the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence. All these elements must be proved together or must co-exist before a conviction for the offence can be secured and failure to prove any one of them would create doubt in the case of the prosecution entitling an accused person to acquittal. See the following cases: AKPAN V. THE STATE (1994) 9 NWLR (PT.368) 347; STATE V DANJUMA (1996) 8 NWLR (PT.469) 660; UBANI V STATE (2003) 18 NWLR (PT.851) 224; ADAVA V STATE (2006) NWLR (PT.984) 152; OGBU & ANOR V THE STATE (2007) 4 SCM 185; AKINLOLU V. STATE (2015) LPELR (SC)."Per IYIZOBA, J.C.A. (Pp , Paras. D- B) - read in context

2 3. CRIMINAL LAW AND PROCEDURE - GUILT OF AN ACCUSED PERSON: How to establish/prove the guilt of an accused person "The guilt of an accused person can be established by one or a combination of any of the following methods: (1) A Confessional Statement; (2) Circumstantial Evidence or (3) Evidence of Eye Witnesses. See generally, OGEDENGBE V. STATE (2014) LPELR 23065; IGABELE V. THE STATE (2006) 2 SC (PT. II) 61 AT 69."Per IYIZOBA, J.C.A. (P. 19, Paras. B-C) - read in context 4. CRIMINAL LAW AND PROCEDURE - CONVICTION: Whether conviction can be secured in the absence of the body of the deceased "Generally, proof that the deceased died does not present difficulty. Once there is positive evidence that the deceased had died even if the body was not found, the accused may still be convicted of murder based on his confessional statement or other circumstantial evidence. See the following cases cited by the learned Chief State Counsel: ARICHE V. STATE (1993) NWLR (PT. 302) 752 OR (1993) LPELR-550 (SC); LORI & ANOR V. STATE (1980) 11 S.C. 81 AND ONAH V. STATE (1985) 3 NWLR (PT. 12) 236."Per IYIZOBA, J.C.A. (Pp , Paras. E-A) - read in context 5. CRIMINAL LAW AND PROCEDURE - INTENTION: How an intention to kill can be inferred "As to whether the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence, intention can be inferred from the overt act of the accused. An accused person is taken to intend the consequences of his voluntary act, when he foresees that it will probably happen, whether he desires it or not. See AKINLOLU V. STATE (2015) (SUPRA) and AFOLABI V. THE STATE (2016) (SUPRA). It is not in doubt that a man who stabs another with a lethal weapon, first at the back, then the sides (ribs) and even when he fell pursued him and inflicted more stab wounds on his leg must have foreseen that the probable consequence is death or at the least grievous bodily harm. From the circumstances, it is reasonable to infer that the Appellant's intention was to kill or cause the deceased grievous bodily harm. The learned trial judge was consequently right in his conclusion that "The sequence of events on the night of 20/11/09 as narrated by the PW1 and confirmed by the accused, point to the irresistible conclusion that the accused formed and executed the intent to savagely attack the accused, knowing fully well that death or grievous bodily harm was a probable consequence of his act."per IYIZOBA, J.C.A. (Pp , Paras. F-F) - read in context 6. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden of proof and standard of proof in criminal cases "Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Section 135 of the Evidence Act 2011 requires that if the commission of a crime by a party is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. It follows that the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt in order to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See generally, ABADOM V STATE (1997) 1 NWLR (PT 479) 1; AKINYEMI V. STATE (1999) 6 NWLR (PT.607) 449; AIGBADION V. STATE (2000) 4 SC 15; CHIANUGO V. STATE (2002) 2 NWLR (PT.750) 225; SOLOLA V. THE STATE (2005) 5 SC (PT. 1) 135. OCHE V. STATE (2007) 56 NWLR (PT. 1027) 214; IFEJIRIKA V. STATE (2009) 3 NWLR (PT.593) 59; RICHARD V. STATE (2013) LPELR AT 14-15, PARAS. E-A."Per IYIZOBA, J.C.A. (Pp , Paras. D-C) - read in context

3 7. EVIDENCE - CAUSE OF DEATH: Circumstances where medical evidence would be dispensed with as to the cause of death "The time frame between the infliction of the stab wounds and the time of death is minimal. According to PW1 under cross-examination, at page 52 of the Record it all started at about 9pm on 20/11/09. But from the evidence of the Appellant the stab wounds may have been inflicted on the deceased well after 12 midnight on 20/11/09. He testified at page 59 of the Record that he was called to the scene on 20/11/09 about pm to 12 midnight by Babatunde's wife. The deceased died the next day, 21/11/09 a few hours after the stabbing. Learned Chief state Counsel stated the law correctly in his brief of argument when he submitted that: "It is settled law that where the death of a deceased is instantaneous or nearly so and there is no break in the chain of events from the time of the act of an accused person that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to the act of the accused person, even without medical evidence of the cause of death. The rationale for this position, which is founded on sound logic and common sense, is that since the act of the accused person is the most proximate event to the death of the deceased, it should be regarded as the deciding factor even where it may be taken as merely contributory to the death of the deceased." In AKPAN VS. STATE (2008) 14 NWLR (PT. 1106) 72. Tobi JSC held that once there is enough compelling circumstantial evidence that the accused person killed the deceased, he could be convicted of murder and that the Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused. Here there is the direct eye witness evidence of PW1 that the Appellant inflicted stab wounds on the deceased at the back, sides and left leg. He bled profusely and was rushed to the hospital. Even the Appellant in his confessional statements described the consequences of the injury inflicted on the deceased. Counsel put it thus: "In the three Exhibits, the Appellant himself described the nature and consequences of the injury sustained by the deceased. He stated in Exhibit 1 that after stabbing the deceased: "...I observed that he was becoming unconscious" (See page 17A lines of the Record of Appeal). In Exhibit 3 he stated that: "Then when I discovered he has sustained serious injury then I started carry, I wanted to take him to the hospital..." (See page 18A lines of the Record of Appeal). Similarly, the Appellant stated in Exhibit 3A that: After stabbed him then he fell down and he could not stand up on his own again..." (See page 20 lines of the Record of the Appeal)". There was no other intervening circumstance or event that could have led to the death of the deceased, other than the stab wounds. He bled profusely after the stab wounds. He could no longer stand on his feet and became unconscious. There is no doubt from the evidence led in this case that the deceased died as a result of the act of the Appellant. In the case of UYO V. A.G., BENDEL STATE (1986) 1 NWLR (PT.17) 418 the Supreme Court per Karibi Whyte JSC observed: "In my opinion where the assault of the brutal kind stated to be inflicted on the deceased is proximate to the death of the deceased, it is in the absence of any contrary evidence of any other cause safe to hold that there is a direct link between the injuries inflicted and death of the deceased. It is the law that where death is caused by infliction of wounds of such severity that death must have been anticipated as the only natural result of the act, the person who has inflicted such wounds is guilty of murder." The cases of ONYENANKEYA VS THE STATE (1964) 1 NMLR 143 AND UGURU V. STATE (2002) 9 NWLR (PT 771) 90 cited and relied on by the Appellant are not apposite. In those cases, there was no certainty as to the cause of death because considerable time had elapsed after the injuries. In Onyenankeya, seven weeks, and Uguru, four days. There were other possibilities that the deceased in both cases may have died of causes other than the injury inflicted. Here the injury was proximate to the death of the deceased and there was direct link between the injuries and the death of the deceased. Also in the case BABUGA V. STATE (1996) 7 NWLR (PT.460) 279 cited by Respondent's counsel, the Supreme Court per Belgore, J.S.C. observed: "In all cases where culpable homicide is in issue, it is very essential that the Court receive evidence, in very certain terms that the deceased died as a result of the act of the accused person. Where the circumstances of the attack on the deceased are clear, the injuries inflicted upon him as a result of the attack are graphically described to lead to no other conclusion than that the deceased died as a result of the attack and the injuries, the Court can convict even if there is no medical evidence and even if the body of the deceased is not recovered." I have no doubt in my mind that the circumstances of the attack on the deceased and the injuries inflicted on him as graphically described by PW1 and the Appellant were such as to lead to only one rational conclusion, that the deceased died as a result of the injuries. Medical report was not tendered. PW2 told the Court that they had difficulty getting the Chief Nursing Officer M.A. Oyebanji who conducted the autopsy to come to Court to testify. I am of the firm view and agree with learned counsel for the Respondent that the failure to call Oyebanji is of no moment. Her evidence would have only confirmed the evidence of PW1 and the Appellant already before the Court. The above view is supported by the cases below cited by learned counsel: "In the case of Ben vs. State (2006) 16 NWLR (Pt. 1006) 582, where the deceased was struck on the head with a stick and he fell down unconscious and never regained consciousness until he was pronounced dead some hours later in the hospital; the Supreme Court held that the trial Court rightly found that the cause of death was the lethal blow to the head without a need for medical evidence. Also, in the case of Adekunle vs. State (2006) 14 NWLR (Pt.1000) 717, the deceased was shot by the defendant and was rushed to the hospital for treatment and died on the next day, the Supreme Court held that medical evidence was unnecessary and that the gun shot was the cause of death." The facts of the present appeal are no different from the above cases. Medical report is not a pre-requisite for conviction here. The deceased died the very next day after the injuries inflicted on him by the Appellant. I agree with learned counsel that the facts of this case are different from the facts of IBO VS. THE STATE (SUPRA) relied on by Appellant's counsel. In Ibo's case the deceased died five days after the infliction of the injury. He was treated for two days in an Abakaliki Hospital and was transferred from there to Enugu General Hospital where he died three days later. All that was contained in the evidence of all the witnesses including the confessional statement of the Appellant in Ibo's case was that the injury was inflicted to the left side of his chest. In this appeal, apart from mentioning the parts of the body where the deceased was stabbed, there was evidence that he bled profusely; could not stand on his feet and was unconscious. He died the very next day. In the case of GIREMABE V BORNU NATIVE AUTHORITY (1961) 1 ALL N.L.R. 489 there was no evidence that the deceased died from the injuries received in the assault which was merely a case of striking the deceased twice with a piece of firewood. Here there were stabbing with a lethal weapon, a knife on the sides (ribs), on the back and the left leg, serious injuries that led to profuse loss of blood and unconsciousness. The cases of R V OLEDIMA (SUPRA), IBO V THE STATE (SUPRA) and GIREMABE V BORNU NATIVE AUTHORITY(SUPRA) are very old cases. From recent decided cases, the Courts no longer insist on medical reports once there is positive, direct or circumstantial evidence linking the injury to the act of the accused. In OGBU V. STATE (2007) 5 NWLR (PT.1028) 635 the Supreme Court, Per Ogbuagu, J.S.C. held:?"it is now fully established that where there is other evidence upon which the cause of death can be inferred, it is not vital to have resort to medical report. A Court can also, in the absence of a medical report, properly infer the cause of death from the evidence and circumstances of the case." In the appeal before us, the learned trial Judge at pages 83 and 84 of the Record observed: "Although the prosecution did not tender medical evidence of the cause of death, the machete attack on the deceased and his death were so proximate to justify the conclusion that the deceased died from severe injuries inflicted by the accused."... "I uphold the submission of Mrs. Osunfisan and hold that even in the absence of medical evidence; the prosecution has proved to my satisfaction and beyond any reasonable doubt, a nexus between the act of the accused and the death of the deceased. The 2nd ingredient of the offence of murder has been proved." The view of the learned trial judge cannot be faulted given the evidence led in the proceedings."per IYIZOBA, J.C.A. (Pp , Paras. F-F) - read in context

4 8. EVIDENCE - CONFESSIONAL STATEMENT: Meaning of confessional statement as defined by the Evidence Act; duty on Court to test the truth of a confession "Section 28 of the Evidence Act 2011 defines a confession as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. It is said that a voluntary confession is indeed the best evidence that proves the commission of an offence. See AKPAN V. STATE (1992) 6 NWLR (248) 439; IKPASA V. A.G. OF BENDEL STATE (1981) 9 SC 1; ONWUMERE V. THE STATE (1991) 4 NWLR (PT. 186) 428. It is now almost the norm for accused persons to retract confessions made timeously soon after arrest. The fact of such retraction does not render the confession inadmissible. Once no issue is raised as to its voluntariness, the retracted confession is admitted in evidence for the Court to decide later what weight to attach to it. The confessional statements made soon after the arrest at Agbado Police Station were admitted in evidence as Exhibits 3 and 3A without any objection by the Appellant. The Appellant objected to the confessional statement made at the State CID on the ground that it was obtained by force and was therefore involuntary. At the trial within a trial he stated that the IPO copied his statement at Agbado Police Station and wanted him to sign it. He refused. He beat him and he then signed. The learned trial judge disbelieved the inconsistent testimony of the Appellant and ruled the statement voluntary. During the trial, the Appellant resiled from the confessional statements and alleged that the deceased was stabbed to death by Babatunde. It was therefore necessary for the trial judge to look for independent evidence outside the confessional statements in proof of the truth of the confession. In the case of NWAEBONYI V THE STATE (1994) 5 NWLR (PT. 343) 150 the Supreme Court reiterated the approach to be followed in assessing the quality of a confessional statement whether retracted or not. They are: "a. Is there anything outside the confession to show that it is true? b. Is it corroborated? c. Are the relevant statements made in it of facts true as far as they can be tested? d. Did the accused person have the opportunity of committing the offence charged? e. Is the confession possible? f. Is the confession consistent with other facts which have been ascertained and established?"per IYIZOBA, J.C.A. (Pp , Paras. D-C) - read in context 9. EVIDENCE - CAUSE OF DEATH: Circumstances where medical evidence would be dispensed with as to the cause of death "The Appellant confessed to the crime but later recanted and pushed the blame on another person. His later denial came too late, as his Confessional Statement did agree with the narrative of the incident as given by PW1. He had stabbed the deceased severally at the back, ribs and leg; and the deceased died some few hours after suffering the pains of the injuries inflicted on him by the Appellant. The circumstances of the death of the deceased was not such that medical evidence was necessary. See Adekunle v. State (1989) 5 NWLR (pt.123) p.505; Bright v. State (2012) 8 NWLR (pt.1302) p.297 at 321 paragraphs C - E and Stephen Haruna v. The A.G; Federation (2012) LPELR (SC)."Per TSAMMANI, J.C.A. (P. 43, Paras. A-E) - read in context

5 CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment): The Appellant, Ogunleye Tobi was arraigned before the High Court of Ogun State sitting at Ota on information in which he was charged with the murder of one Kolawole Badejo contrary to Section 316 and punishable under Section 319 of the Criminal Code Law, Laws of Ogun State, The particulars of the offence are that the Appellant Ogunleye Tobi on or about the 20th day of November, 2009 at Atila, Agbado Area in the Ota Judicial Division murdered Kolawole Badejo. The case was tried by Mobolaji Ojo J. The Appellant pleaded not guilty to the charge and the Prosecution called two witnesses to establish its case. The Appellant gave evidence in his own defence. The learned trial judge in a reserved judgment delivered on the 2nd day of June, 2015 found the Appellant guilty as charged. He was accordingly sentenced to death by hanging. The Appellant was dissatisfied with the verdict of the Court and has appealed to this Court. THE FACTS: The Prosecution s case as gathered from the evidence of their star witness PW1, the wife of (Kola) the 1

6 deceased is that in the evening of the 20th day of November 2011, Kola informed her (PW1) that he was going to the house of one Babatunde (Tunde) to collect money he owed him. Tunde lived three houses away from their own house. Kola had contracted Tunde, a carpenter to construct a bed for him. He had paid him N5000 deposit for the job. Tunde failed to deliver, hence the trip to his house by Kola to get his deposit back. After waiting in vain for her husband to return, PW1 set out in search of him. She saw the deceased Kola in front of Tunde s house, both of them shouting at each other. The Appellant (Tobi) joined the altercation which eventually led to a fight between Tobi and Kola. PW1 said they were separated and she returned home with Kola. She said her husband Kola changed his clothes and wanted to go the Police Station to report the incident. She insisted on going with him to the Police Station. She stated that on their way to the Police Station, a woman who wanted to broker peace demanded to know from her husband Kola exactly what transpired amongst them i.e. Kola, Tobi and Tunde. As Kola was trying to explain, suddenly, the accused Tobi came from 2

7 nowhere and stabbed Kola from behind at the back and on his side. As Kola was running away, he fell down and the accused went to him and stabbed him again on the left leg. Kola bled profusely and was rushed to the hospital while the Police came to the scene, arrested the accused and took him away to the Police Station. She said she was taken to the Police Station where she passed the night and the statement of the accused was taken by the Police. She was informed the following morning that her husband Kola who had been taken to the hospital was dead. The Appellant Tobi made confessional statements to the Police after his arrest, two at the Agbado Police Station admitted in evidence as Exhibits 3 & 3A and one at the State CID which was admitted in evidence as Exhibit 1 after a trial within a trial. In the statements he admitted that there was a fight between him and Kola and that he stabbed him with a knife. At the hearing, the Appellant resiled from his confessional statements. He stated that on 20/11/09 he was in his house sleeping when Tunde s wife came to inform him that her husband Tunde and the deceased Kola were fighting in 3

8 Tunde s house. He followed Tunde s wife to their house and there met Kola and Tunde still fighting in the passage. All attempt to separate them failed. In the course of the fight, a knife held by Tunde cut the left hand of Kola. Kola pursued Tunde who had taken to his heels but he could not catch up with him. He then advised Kola to go for medical attention. He went with him to one hospital nearby but they had closed. As they were returning they met PW1 Kola s wife in front of her house searching for her husband. He said Kola showed his wife the spot where Tunde had stabbed him. PW1 then ran back to Tunde s house but did not see him and then came to meet them at the hospital. The Appellant claimed that as they were waiting for a cab to go to another hospital, Tunde came to them and another fight started between Kola and Tunde. Then three men riding a bike (Okada) appeared and started fighting with Tunde to revenge the attack on Kola (the deceased). Suddenly a Police Patrol vehicle arrived at the scene and fired shots into the air. People around fled. The Appellant and Kola were arrested and pushed into Police vehicle. Kola was taken to 4

9 a hospital Winner s clinic while the Appellant was taken to Ayinla Police Station Agabago. The Police later arrested Tunde and detained him along with the Appellant. The next day they were brought out and the Appellant told the Police that Tunde and Kola were fighting and that Tunde was the person that stabbed Kola. The appellant said they were detained for two weeks and were later transferred to State CID Abeokuta. The Appellant admitted that he made statements at Ayinla Police Station. He claimed no statement was made at the State CID and that he was beaten up and forced to sign Exhibit 1. He denied killing the deceased and said the deceased was killed by Tunde in the course of their fight. The trial judge rejected the Appellant s story and convicted him of murder. From the six grounds of appeal in the Notice of appeal, Mr. Awosika for the Appellant distilled three issues as follows: a. Whether or not the Prosecution established the Appellant s guilt beyond reasonable doubt at the trial as required by law. (Distilled from Grounds three (3), five (5) and six (6)). b. Whether the extra-judicial statement of the 5

10 Appellant to the Police which he denied at the trial was rightly admitted and relied on in evidence. AND/OR Are there no material discrepancies in the evidence of the two witnesses for the prosecution with the extra-judicial statement of the Appellant? (Distilled from Ground One (1) and four (4)) c. Can the prosecution, in all the circumstances of this case dispense with the tendering of a valid medical report by a medical doctor at the trial of this case in the Court of first instance? (Distilled from Ground two (2). A.M. Adebayo Esq., Chief State Counsel Ministry of Justice Ogun State for the Respondent in his brief formulated two issues for determination as follows: (i) Whether from the totality of the evidence adduced at the trial, the Respondent proved the charge of Murder against the Appellant beyond reasonable doubt in accordance with Section 135 of the Evidence Act, No. 18 of 2011? (ii) Whether the trial Judge was right in relying on the confessional statements of the Appellant in this case as part of the evidence in convicting the Appellant? Appellant s issue 3 can be subsumed into his issue 1 as medical 6

11 report is a factor to be considered in determining whether the Prosecution proved its case beyond reasonable doubt. I shall therefore adopt the Respondent s issues in the determination of this appeal as the two issues cover the Appellant s three issues. ISSUE 1: Whether from the totality of the evidence adduced at the trial, the Respondent proved the charge of Murder against the Appellant beyond reasonable doubt in accordance with Section 135 of the Evidence Act, No. 18 of 2011? APPELLANT S ARGUMENTS: Learned counsel submitted that the Appellant to secure a conviction for murder must prove beyond reasonable doubt the three ingredients required to secure a conviction for murder. These are: a. That the deceased died. b. That the death of the deceased was caused by the accused person and; c. That the act or omission of the accused person causing the death was intentional with knowledge that death or grievous bodily harm was his probable consequence. Counsel relying on IGABELE V. STATE (2006) 6 NWLR (PT. 975) 100 submitted that these three elements/ingredients must co-exist at the same time; otherwise

12 7

13 the accused person is entitled to be acquitted of the offence charged. On the first ingredient that the deceased died, learned counsel submitted that contrary to the view of the learned trial judge, the evidence of PW1 was not clear and definite that Kolawole Badejo (the deceased) died. Counsel submitted that PW1 s evidence concerning the death of Kolawole Badejo was at best hearsay. He submitted that she did not go to the hospital and was informed that her husband was dead. Counsel further submitted that PW1 did not mention the name of her informant and no medical officer from the hospital was called to give evidence to confirm the death of the deceased. He submitted that the extra judicial statement of the Appellant that Kolawole Badejo was dead and that he was responsible for his death which the learned trial Judge also took into consideration was also hearsay. Learned counsel submitted that the learned trial judge erred in relying on hearsay evidence to arrive at the conclusion that the Prosecution had proved the death of Kolawole Badejo beyond reasonable doubt. Counsel submitted that the facts here are similar to the facts in the case of IBO VS. THE 8

14 STATE (1971) NMLR 245. He urged us to hold that the Prosecution was not able to prove the first element of the offence, that Kolawole Badejo is dead. On the second ingredient, that the death of the deceased was caused by the accused person, counsel submitted that the lower Court specifically utilized the extra-judicial statement of the Appellant (Exhibit 1) and partially PW1 s testimony in holding that the death of Kolawole Badejo was caused by the Appellant s act. Learned counsel quoted copiously the evidence of PW1 and submitted that it merely showed that the Appellant stabbed Kolawole Badejo at his back and on his leg but did not show that the injury inflicted caused his death. He further submitted that the confessional statement Exhibit 1 which the learned trial judge placed great emphasis on did not also clear the coast as to the fact that the injury led to the death. He argued that there was no evidence showing the actual extent of the injury on the various parts of Kolawole Badejo s body where he was stabbed and which injury actually led to his death to enable the lower Court come to the conclusion that indeed the deceased died 9

15 as a result of the injury inflicted by the Appellant. He opined that the burden of proving that the accused person caused the death of the deceased is on the prosecution. He argued relying on R V. OLEDIMA (1940) 6 W.A.C.A. 202 that it is not enough to show that the accused did an act or made an omission which could have caused the death. Counsel submitted that the absence of a medical report, lack of evidence as to the nature and severity of the injury and the fact that the deceased died the next day if indeed he was dead was fatal to the case of the prosecution on the second ingredient of the offence. Counsel relied on the cases of IBO VS. THE STATE (SUPRA); GIREMABE V. BORNU NATIVE AUTHORITY (1961) 1 ALL N.L.R 489 and ONYENANKEYA VS. THE STATE (1964) 1 NMLR Counsel submitted that the learned trial Judge did not properly evaluate the evidence led in concluding that the 2nd element of the offence was established. He called in aid the cases of UGURU V. STATE (2002) 9 NWLR (PT. 771) 90 AND IN QUEEN VS. IZOBO OWE (1961) ALL N.L.R 710 in urging us to hold that there was no evidence to establish that the injury inflicted on the deceased by the Appellant 10

16 caused his death. Counsel submitted that although it is not in all instances that medical evidence is needed but that in the present case, it is a necessity to put to rest the unanswered questions regarding the death status of Kolawole Badejo. Counsel submitted that the prosecution had proposed to call M.A. Oyebanji (Chief Nursing Officer) to give evidence but at the end failed to do so. Learned counsel relying on STATE V. AJAYI (2016) 14 NWLR (PT. 1532) 196 submitted that the prosecution s failure to call Oyebanji calls into play the presumption in Section 149(d), Evidence Act, that evidence which could be produced but is not produced would, if produced, be unfavourable to the party who withholds it. Counsel called in aid the case of UGURU VS. STATE (SUPRA) to submit that the prosecution ought to have called Oyebanji, the Chief Nursing Officer to testify as to the cause of death and that the failure to do so left the second ingredient of the charge of murder unsubstantiated. On the 3rd ingredient, that the act or omission of the accused person causing the death was intentional with knowledge that death or grievous bodily harm was its probable 11

17 consequence, counsel submitted that the learned trial judge as in all the other cases set out the principles correctly but erred in applying them to the facts of this appeal. Learned counsel submitted that intent cannot arise in the absence of proof that the act of the Appellant caused the death of the deceased. Counsel submitted that in the absence of evidence as to the severity of the injuries inflicted, the parts of the body injured, and the range within which the weapon was used, the trial Judge was not justified in drawing the inference that the nature of the weapon carried by the Appellant showed of itself intent to kill. RESPONDENT S ARGUMENTS: Learned counsel for the Respondent referred to the three ingredients of the offence of murder and submitted that that the Respondent at the trial proved all the three ingredients beyond reasonable doubt and that the trial Court was right in convicting the Appellant of murder. With respect to the first ingredient, counsel submitted that PW1 in lines page 50 of the Record testified that her husband Kola Badejo was dead. He submitted that she was neither cross-examined on the statement nor 12

18 was the evidence challenged in any way; and that her evidence on the point was not shaken or discredited. Counsel submitted relying on OFORLETE V. STATE (2000) FWLR (PT.12) 2081 AT H-A that the failure to challenge her evidence amounts to an admission. Counsel submitted that PW1 s evidence at page 51 lines 12 to 15 that she was informed later that her husband had died is not hearsay evidence taken together with her earlier unchallenged testimony that her husband was dead and the circumstances surrounding the case. Counsel submitted that there are other pieces of evidence confirming the death of the deceased such as the photographs of the deceased which were tendered as Exhibits 2, 2A and 2B while the negative were tendered as Exhibit 2C. He opined that the Appellant did not object to the tendering of the photographs during the trial. Counsel submitted that the Appellant in his confessional statement Exhibit 1 conceded to the death of the deceased and that there was no dispute at the trial as to whether Kolawole Badejo was dead. He opined that the Appellant in his evidence in chief confirmed the death of Kolawole Badejo but only denied killing 13

19 him. His defense was that the deceased was killed by Adebayo Babatunde. He submitted that the learned trial judge was right in holding that the first ingredient was established. He cited the cases of ARICHE V. STATE (1993) NWLR (PT. 302) 752 OR (1993) LPELR-550 (SC); LORI & ANOR V. STATE (1980) 11 S.C. 81 AND ONAH V. STATE (1985) 3 NWLR (PT. 12) 236; and urged us to hold that the Respondent proved the death of Kolawole Badejo beyond reasonable doubt. On the second ingredient of the offence of murder, that the death of the deceased was caused by the Appellant, counsel submitted it could be proved through a confessional statement, circumstantial evidence or the evidence of an eye witness. He submitted that PW1 gave a vivid eye witness account of how the Appellant stabbed her husband, Kolawole Badejo at the back, side and on the leg. The Appellant in his confessional statement Exhibit 1 stated how he used a knife which dropped from the deceased s pocket to stab his back and leg; and how on observing that he was becoming unconscious, he wanted to take him to the hospital but that his friends came and attacked him and that he later died in 14

20 hospital. Counsel submitted relying on AHMADU V. STATE (2014) LPELR-23974(CA) AND AKPA VS. STATE (2008) 14 NWLR (PT. 1106) 72 that it is settled law that where the death of a deceased is instantaneous or nearly so and there is no break in the chain of events from the time of the act of an accused person that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to act of the accused person, even without medical evidence of the cause of death. He further called in aid the cases of BEN VS. STATE (2006) 16 NWLR (PT. 1006) 582 AND ADEKUNLE VS. STATE (2006) 14 NWLR (PT.1000) 717 to submit that medical report is not necessary in this case to prove that the act of the Appellant caused the death of the deceased, Kolawole Badejo. He submitted that the fact that the deceased died few hours (the following day) after he was stabbed by the Appellant remained uncontroverted, unchallenged and uncontradicted by the Appellant at the trial. Counsel cited the cases of OGBU V. STATE (2007) 5 NWLR (PT.1028); BABUGA V. STATE (1996) 7 NWLR (PT.460) 279; UYO V. A.G., BENDEL STATE (1986) 1 NWLR (PT.17) 418 and OBOGO V. THE STATE 15

21 (1972) S. C. 39 where the Supreme Court held that a Court can in the absence of a medical report, properly infer the cause of death from the evidence and circumstances of the case. Learned counsel distinguished the cases cited by the Appellant and referred also to NJOKWU V THE STATE (2013) LPELR-19890(SC) in support of his contention that the injury inflicted by the Appellant caused the death of the deceased. On the third ingredient of the offence of Murder, that the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence; counsel submitted that the learned trial judge was right in holding that The sequence of events on the night of 20/11/09 as narrated by the PW1 and confirmed by the accused, point to the irresistible conclusion that the accused formed and executed the intent to savagely attack the accused, knowing fully well that death or grievous bodily harm was a probable consequence of his act. Counsel cited AKINLOLU V. STATE (2015) LPELR THE SUPREME COURT and AFOLABI V. THE STATE (2016) LPELR-40300(SC). Counsel quoted the evidence of PW1 at page 51 lines 6-9 and submitted 16

22 that the Appellant in stabbing the deceased three times with a lethal weapon, pursuing him after the first two blows and stabbing him the third time after he had fallen down show irresistibly that the Appellant had the intent to kill him or at least to cause him grievous bodily harm. Counsel further submitted that apart from the evidence of PW1 which revealed that the Appellant stabbed the deceased on the back, leg and the side, the Appellant in his statement in Exhibit 3A stated that he stabbed the deceased on the ribs. He urged us to hold that the Respondent proved the third ingredient of the offence of murder against the Appellant beyond reasonable doubt. RESOLUTION OF ISSUE 1: Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Section 135 of the Evidence Act 2011 requires that if the commission of a crime by a party is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. It follows that the burden of proof in criminal cases is on the prosecution who must 17

23 prove its case beyond reasonable doubt in order to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See generally, ABADOM V STATE (1997) 1 NWLR (PT 479) 1; AKINYEMI V. STATE (1999) 6 NWLR (PT.607) 449; AIGBADION V. STATE (2000) 4 SC 15; CHIANUGO V. STATE (2002) 2 NWLR (PT.750) 225; SOLOLA V. THE STATE (2005) 5 SC (PT. 1) 135. OCHE V. STATE (2007) 56 NWLR (PT. 1027) 214; IFEJIRIKA V. STATE (2009) 3 NWLR (PT.593) 59; RICHARD V. STATE (2013) LPELR AT 14-15, PARAS. E-A. It is well settled that in a charge of Murder, the prosecution has the burden of proving the following ingredients beyond reasonable doubt namely (1) that the deceased had died; (2) that the death of the deceased resulted from the act of the accused; and (3) that the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence. All these elements must be proved together or must co-exist before a conviction for the offence can be secured and failure to prove any one of them would create doubt in the case of the prosecution entitling an accused person to acquittal. See 18

24 the following cases: AKPAN V. THE STATE (1994) 9 NWLR (PT.368) 347; STATE V DANJUMA (1996) 8 NWLR (PT.469) 660; UBANI V STATE (2003) 18 NWLR (PT.851) 224; ADAVA V STATE (2006) NWLR (PT.984) 152; OGBU & ANOR V THE STATE (2007) 4 SCM 185; AKINLOLU V. STATE (2015) LPELR (SC). The guilt of an accused person can be established by one or a combination of any of the following methods: (1) A Confessional Statement; (2) Circumstantial Evidence or (3) Evidence of Eye Witnesses. See generally, OGEDENGBE V. STATE (2014) LPELR 23065; IGABELE V. THE STATE (2006) 2 SC (PT. II) 61 AT 69. From the Records, the evidence of the Prosecution here was predicated on a combination of the above three methods. The contention of the Appellant is that none of the ingredients of the offence of murder was established by the prosecution. Generally, proof that the deceased died does not present difficulty. Once there is positive evidence that the deceased had died even if the body was not found, the accused may still be convicted of murder based on his confessional statement or other circumstantial evidence. See the following cases cited by the learned Chief State 19

25 Counsel: ARICHE V. STATE (1993) NWLR (PT. 302) 752 OR (1993) LPELR-550 (SC); LORI & ANOR V. STATE (1980) 11 S.C. 81 AND ONAH V. STATE (1985) 3 NWLR (PT. 12) 236. In the appeal before us there is evidence both from PW1 and the Appellant himself that the deceased died. It was never in dispute in the case. Photographs of the deceased s corpse with the negatives were tendered in Court and admitted as Exhibits without any objection by the Appellant. Mr. Awosika s contention that the evidence of PW1 and the Appellant as regards the death of the deceased were hearsay is without merit. Apart from the instances where they testified that they were informed of the death, there were other instances where they stated categorically that the deceased died. At page 50 line PW1 testified on 30/10/13 I remember 20/11/09. My husband was Kola Badejo; he is now dead. The Appellant in his confessional statement tendered in evidence and admitted as Exhibit 1 after the conduct of a trial within trial confirmed the death of Kolawole Badejo. He testified: Thereafter, Tunde came to the spot and took him to the nearby hospital 20

26 for medical treatment. Kola later died at the hospital on the 21/11/2009. (See page 17A lines 54 to 57 of the Record of Appeal). The Appellant in his evidence in chief also confirmed the death of Kolawole Badejo even though he denied being the killer. He said: I did not kill Kola Badejo; it was Adebayo Babatunde who killed Badejo. They were both fighting and I tried to separate them. I am not responsible for the death of Kola Badejo. (See page 60 lines 26 to 28 of the Record of Appeal). The learned trial Judge rightly observed at page 75 lines 13 to 21 of the Record of Appeal that: The prosecuting counsel also referred to the evidence of the accused person who admitted in his statement to the police and as well as in his evidence in Court that the deceased died and submitted that the death of the deceased has been proved as required by law. In his evidence before the Court, the accused person admitted that Kola Badejo the deceased died but he denied being responsible for his death. In the light of the foregoing, I am in agreement with the learned DPP that the prosecution has proved the death of the deceased 21

27 beyond reasonable doubt. The 1st element of the offence has thus been proved. There is absolutely no merit in the contention of the Appellant that the first ingredient of the offence of murder was not proved. There was positive and undisputed proof beyond reasonable doubt that the husband of PW1 Kola Badejo died on the 21st of November Mr. Awosika also contended that there was no proof of the second ingredient that the death of the deceased was caused by the accused person. I again find no merit in the arguments proffered by learned counsel on this. PW1 gave eye witness account of what transpired on the fateful day. Her evidence: On the way to the Police Station, one woman living in the house, i.e. next to the scene of the initial altercation stopped us and asked what the matter was between my husband and Tunde and the accused. As he was trying to explain, suddenly the accused came from nowhere and stabbed my husband from behind at the back. He again stabbed him on his side and as my husband was running away, he fell down and the accused went to meet him and stabbed him again on the left leg. My husband started 22

28 bleeding profusely and he was rushed to the hospital. The Police arrived at the scene and arrested the accused person and took him to the station. The police ordered me into their vehicle and carried me to the station. Next morning I was asked to go home. I was informed later that my husband had died. (See page 51 line 3 10 of the Record). The Appellant in Exhibit 1, his confessional statement testified thus: Kola used the broken bottle to stab me in my hand and I took to my heel but he pursued me to a place that I fell down and a knife dropped from his pocket which I picked and I used to stab his back and leg before he could leave me. When I observed that he was becoming unconscious I wanted to take him to nearby hospital but his friends came to attack me and beating me. Thereafter, Tunde came to the spot and took him to the nearby hospital for medical treatment. Kola later died at the hospital on the 21/11/2009. (See page 17A lines 47 to57 of the Record of Appeal). The time frame between the infliction of the stab wounds and the time of death is minimal. According to PW1 under cross-examination, at page 23

29 52 of the Record it all started at about 9pm on 20/11/09. But from the evidence of the Appellant the stab wounds may have been inflicted on the deceased well after 12 midnight on 20/11/09. He testified at page 59 of the Record that he was called to the scene on 20/11/09 about pm to 12 midnight by Babatunde s wife. The deceased died the next day, 21/11/09 a few hours after the stabbing. Learned Chief state Counsel stated the law correctly in his brief of argument when he submitted that: It is settled law that where the death of a deceased is instantaneous or nearly so and there is no break in the chain of events from the time of the act of an accused person that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to the act of the accused person, even without medical evidence of the cause of death. The rationale for this position, which is founded on sound logic and common sense, is that since the act of the accused person is the most proximate event to the death of the deceased, it should be regarded as the deciding factor even where it may be taken as merely contributory to the death of 24

30 the deceased. In AKPAN VS. STATE (2008) 14 NWLR (PT. 1106) 72. Tobi JSC held that once there is enough compelling circumstantial evidence that the accused person killed the deceased, he could be convicted of murder and that the Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused. Here there is the direct eye witness evidence of PW1 that the Appellant inflicted stab wounds on the deceased at the back, sides and left leg. He bled profusely and was rushed to the hospital. Even the Appellant in his confessional statements described the consequences of the injury inflicted on the deceased. Counsel put it thus: In the three Exhibits, the Appellant himself described the nature and consequences of the injury sustained by the deceased. He stated in Exhibit 1 that after stabbing the deceased: I observed that he was becoming unconscious (See page 17A lines of the Record of Appeal). In Exhibit 3 he stated that: Then when I discovered he has sustained serious injury then I started carry, I wanted to take him to the hospital (See 25

31 page 18A lines of the Record of Appeal). Similarly, the Appellant stated in Exhibit 3A that: After stabbed him then he fell down and he could not stand up on his own again (See page 20 lines of the Record of the Appeal). There was no other intervening circumstance or event that could have led to the death of the deceased, other than the stab wounds. He bled profusely after the stab wounds. He could no longer stand on his feet and became unconscious. There is no doubt from the evidence led in this case that the deceased died as a result of the act of the Appellant. In the case of UYO V. A.G., BENDEL STATE (1986) 1 NWLR (PT.17) 418 the Supreme Court per Karibi Whyte JSC observed: In my opinion where the assault of the brutal kind stated to be inflicted on the deceased is proximate to the death of the deceased, it is in the absence of any contrary evidence of any other cause safe to hold that there is a direct link between the injuries inflicted and death of the deceased. It is the law that where death is caused by infliction of wounds of such severity that death must have been anticipated as the only natural 26

32 result of the act, the person who has inflicted such wounds is guilty of murder. The cases of ONYENANKEYA VS THE STATE (1964) 1 NMLR 143 AND UGURU V. STATE (2002) 9 NWLR (PT 771) 90 cited and relied on by the Appellant are not apposite. In those cases, there was no certainty as to the cause of death because considerable time had elapsed after the injuries. In Onyenankeya, seven weeks, and Uguru, four days. There were other possibilities that the deceased in both cases may have died of causes other than the injury inflicted. Here the injury was proximate to the death of the deceased and there was direct link between the injuries and the death of the deceased. Also in the case BABUGA V. STATE (1996) 7 NWLR (PT.460) 279 cited by Respondent s counsel, the Supreme Court per Belgore, J.S.C. observed: "In all cases where culpable homicide is in issue, it is very essential that the Court receive evidence, in very certain terms that the deceased died as a result of the act of the accused person. Where the circumstances of the attack on the deceased are clear, the injuries inflicted upon him as a result of the attack are graphically 27