➥ CASE SUMMARY OF:
Mati Musa v The State (2019) – SC
by “PipAr” B.C. Chima
Supreme Court – SC.902/2014
➥ JUDGEMENT DELIVERED ON:
Friday, 11th January, 2019
➥ AREA(S) OF LAW
Proper time to raise objection.
➥ NOTABLE DICTA
⦿ RESPONDENT WHO HAS NOT CROSS-APPEALED CANNOT SEEK REVERSAL
Replying on points of law, the appellant in his reply brief filed on the service of the respondent’s brief on him cites the decisions in Ajayi V. Adebiyi (2012) II NWLR (Pt. 1310) 137, Ogunbadejo V. Owoyemi (1993) 1 NWLR (Pt. 271) 517 and Ogunsola V. Nicon (2010) 13 NWLR (Pt. 1211) 225 in rightfully submitting that the role of the respondent in an appeal is to defend the judgment appealed against. Having not crossed appealed, it is argued, the respondent herein cannot seek the reversal of the judgment of the lower Court. I entirely agree with learned appellant’s counsel. In Ogunbadejo V. Owoyemi (1993) 1 NWLR (Pt. 271) 517 rightfully cited and relied upon by learned counsel, this Court restated the principle that the respondent who has not cross-appealed against the very judgment on appeal cannot seek the reversal or variation of any findings of the Court below. — M.D. Muhammad, JSC.
⦿ WAYS IN WHICH A CRIMINAL ALLEGATION MAY BE PROVED
Again, counsel are right that in discharging the burden, the law places on the respondent herein to prove the case against the accused by relying on: – (a) The direct evidence of eye witnesses. (b) Circumstantial evidence and/or (c) The confessional statement of the accused. See Olabode Abirifon V. The State (2013) 13 NWLR (Pt. 1372) 587 and Freeborn Okiemute V. The State (2016) LPELR-40639 (SC). — M.D. Muhammad, JSC
⦿ ONLY SUBSTANTIAL CONTRADICTIONS CREATES DOUBT
The law further requires that whatever evidence the respondent relies on in proving its case against the appellant, it must be bereft of substantial contradictions. Only material contradictions in respect of a fact in issue creates doubt in the mind of the Court thereby destroying the case sought to be established against an accused. Thus, only such material contradictions which affect live issues to which they relate avail an opposing party thereby entitling the appellate Court to interfere with the judgment on appeal giving the miscarriage of justice they occasion. See Maiyaki V. The State 2008) LPELR-1823 (SC), Sele V. The State 1 SCNJ (Pt. 1) 15 at 22 23 and Usiobaifo & Anor V. Usiobaifo (2005) LPELR-3424 (SC). — M.D. Muhammad, JSC
⦿ A COURT’S FINDING IS PERVERSE WHERE IT IS SPECULATIVE
Evaluation of evidence and the ascription of probative value is the primary duty of the trial Court that saw and assessed the credibility of the witnesses. The appellate Court that does not enjoy this much advantage cannot, on the basis of the cold facts on record, interfere with the trial Court’s findings of fact unless it finds the findings to be perverse. A Court’s findings are perverse where they are speculative, not being based on any evidence or because the Court had taken into account matters which it ought not to or shut its eyes to the obvious. Because of the miscarriage of justice, they occasion, perverse findings do not sustain a judgment on appeal even if same had been upheld by the Court of Appeal. See Jolayemi & Ors V. Alaoye & Anor (2004) 12 NWLR (Pt. 887) 322 and Akinlagun & Ors V. Oshoboja & Anor (2006) LPELR-348 (SC). — M.D. Muhammad, JSC
⦿ NEGATIVES OF PHOTOGRAPH REQUIRES PHOTOGRAPHER TO BE CALLED TO TESTIFY
Photographs taken of the deceased’s corpse are secondary evidence. They become admissible only when the negative is also tendered and their inadmissibility has nothing to do with the maker or photographer. However in this age of digital photography where the negatives are stored electronically, it becomes necessary for the photographer to be called to testify. — K.B. Aka’ahs, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Musa Dattijo Muhammad, JSC
⦿ FOR THE APPELLANT
Musa Kuttu Esq.
⦿ FOR THE RESPONDENT
Addul-rahman Umar Esq.
➥ CASE HISTORY
By a charge dated 5th July, 2006, the appellant was arraigned by the respondent before the Katsina State High Court, the trial Court, sitting at Dutsin Ma, for the offence of Culpable Homicide punishable with death under Section 221 of the Penal Code. He had caused the death of one Salihu Yusuf on the 3rd day of May 2004 by hitting him with a stick on his head. The appellant pleaded not guilty to the charge. Six witnesses testified for the respondent through whom four exhibits were tendered and admitted in evidence.
The appellant testified for himself. He called no other witness in his defence. At the end of trial, the trial Court found the appellant guilty as charged and convicted him accordingly in its judgment dated 5th December, 2012.
Aggrieved, the appellant appealed to the Court of Appeal, Kaduna Division, hereinafter referred to as the lower Court, vide a notice filed on the 14th November, 2013 containing five grounds. Allowing the appeal in part, the Court set aside appellant’s conviction under Section 221 of the Penal Code and substituted it with one under Section 224 of the same code for culpable homicide not punishable with death and sentenced him to ten years imprisonment.
Still dissatisfied, the appellant has further appealed to this Court on a notice dated 18th September, 2014 containing three grounds.
➥ ISSUE(S) & RESOLUTION
I. That available evidence does not sustain appellant’s conviction for culpable homicide not punishable with death under Section 224 of the Penal Code?
RULING: IN RESPONDENT’S FAVOUR.
A. “PW1, PW2, PW3 and PW4 have all testified that they saw the appellant hit the deceased with a stick and that the deceased died the following day. In Exhibits 4a and 4b, his extra judicial confessional statement, the appellant has admitted hitting the deceased with a stick on his forehead and that death of his victim had occurred thereafter.”
B. “The appellant has enthused that Exhibits 2A and 2B, the photographs of the corpse of the deceased and Exhibit 3 the medical report denoting the fact of and the nature of the injury that caused the death of Salisu Yusuf to be inadmissible. The three do not avail the respondent in proof of the facts to which they relate. Their being expunged from evidence, it is contended, has a disastrous effect on the respondent’s case. Learned respondent counsel’s response to appellant’s arguments in relation to the three exhibits is indeed devastating. I agree with learned respondent’s counsel that it is not that Exhibits 2A, 2B and 3 are in any event inadmissible. No. Rather, it is that the exhibits are admissible under certain conditions. It is settled law that the appellant herein who was represented by counsel at the trial Court and raised no objection when the exhibits were tendered to be admitted, even though the conditions precedent have not been met, cannot now raise the objection on appeal.”
“With the law not on the side of the appellant, the lone issue for the determination of the appeal is accordingly resolved against him and the unmeritorious appeal dismissed. The lower Court’s conviction and sentence of the appellant under Section 224 instead of 221, with his defence of provocation having been made out, is further affirmed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ EVIDENCE ADMISSIBLE UNDER CERTAIN CONDITIONS vs EVIDENCE NOT ADMISSIBLE AT ALL
In Unity Life and Fire Insurance Company Ltd V. International Bank of West Africa (2001) LPELR-3412 (SC) (2001) NWLR (Pt 713) 610 this Court in restating the principle has held at pages 21 22; page 627 of the reports as follows: “A distinction must however, be drawn between where the evidence complained of is one which by law is prima facie admissible albeit under stipulated conditions as against where such evidence is by law inadmissible in any event and in all circumstances. In the latter class of cases, such evidence ought never to be acted upon by any Court of law whether, of first instance or of appeal, and it is immaterial that its admission in evidence was by the default or consent of the party complaining in failing to raise the necessary objection at the appropriate time. In other words, where the evidence complained of is by law inadmissible in any event and all circumstances, the evidence cannot be acted upon by any Court of law even if the party complaining failed to raise any objection or consented to the admission of such evidence in the proceeding. The appellate Court in such circumstance is duty bound to entertain a complaint on the admissibility of such evidence by the trial Court, reject it if it finds it absolutely inadmissible in any event and in all circumstances and decide the case on the legal evidence before the Court…”
➥ REFERENCED (OTHERS)