IN THE COURT OF APPEAL OF NIGERIA
On Thursday, the 12th day of February, 2015
CA/K/289/C/2013
BETWEEN
AMINA MUSA ................. Appellant
AND
THE STATE .............. Respondent
APPEARANCES
M. Bulama Esq. for Appellant
Yakubu A. H. Ruba (A. G. Jigawa State) for Respondent
MAIN JUDGMENT
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the Jigawa State High Court in charge No.JDU/27C/2009, delivered by Hon. Justice Ahmad Isah Gumel on 2/12/2010, wherein Appellant was convicted in the three counts charge of culpable homicide punishable with death. She was accused of causing the death of three different children, namely Yusuf Musa (m), 7 years old, Nana Dausiya Musa (f), 3 years old and Hafsatu Ya'u (f), 7 months old, each by poisoning, contrary to Section 223 of the Penal Code Law of Jigawa State.
The Appellant was, however, convicted and sentenced to 10 years imprisonment on each count under a lesser offence pursuant to Section 218 of the Criminal Procedure Code, and Section 225 of the Penal Code, which says:
"Whoever causes the death of any person by doing any act not amounting to culpable homicide but done with the intention of causing hurt or grievous hurt, shall be punished with imprisonment for a term which may extend to fourteen years or with fine or with both"
The sentences were to run concurrently.
Appellant had pleaded not guilty to the charge on being arraigned. She was arraigned for trial de novo on 10/2/2010, having been first arraigned before Umar Maigari J, where two witnesses testified. On the demise of his lordship, the trial had to commence, de novo, before Ahmad Isah Gumel J.
At the de novo trial the prosecution called 4 witnesses and tendered 3 exhibits, while the Appellant testified as DW1. The facts of the case at the Lower Court showed that the Accused (the 2nd wife) of PW1, had given what they called Fura to her co-wife and when the three children, 2 of whom were of her co-wife drank what was prepared from the Fura, they (children) died, one at the spot and the other in the hospital, on admission. PW1 was the father of two of the children; PW2 was the mother of the 2 children and PW3 the mother of the last girl and neighbor of the PWs 1 & 2 and of the Accused. Pw2 said the Accused gave her the Fura, through her child, to be kept in her room; that on 6/2/2009, she gave the Fura to the children and the moment they took it, they started vomiting and stooling and when the Fura was checked poison was found in it. The children died of the poisonous substance called "Shayin Bera" found in the Fura. Exhibit P1 was the medical report on the deceased and Exhibits P2 and P2A the statements of the Accused. The trial judge relied heavily on the evidence of PW2 and PW3 and on the confessional statement of the Appellant in convicting her.
Appellant filed her notice and grounds of appeal on 29/6/2013, upon being granted extension of time to appeal. She raised three grounds of appeal, as per pages 70 to 72 of the Records. From the three grounds, Appellant distilled two issues for determination:
"(1) Whether, based on the evidence led by the prosecution before the Lower trial Court and the findings made by the Court, it can be said that the prosecution has proved its case beyond reasonable doubt, (Grounds 1 and 2).
(2) Whether failure of the Lower trial judge in not sufficiently assessing the evidence before him has led to miscarriage of justice (ground 3)."
The Respondent filed its brief on 14/10/2013 and distilled a lone issue for determination
"Whether the prosecution has prove (sic) its (sic) case beyond reasonable doubt to warrant the conviction and sentence of the Accused/Appellant"
In response to the brief of the Respondent, Appellant filed a Reply Brief on 22/10/2013, and when the appeal came up for hearing on 22/1/14, the Learned Counsel, on behalf of the parties adopted their briefs and moved this Court, accordingly.
Learned Counsel for the Appellant, Mustapha Bulama Esq., submitted on the issue one, that the applicable presumption of the law, under Section 36 (5) of the 1999 Constitution, on the innocence of the Accused, prevailed, requiring his guilt to be established beyond reasonable doubt. He relied on the case of BAKARE VS. STATE (1987) 1 NWLR (PT.52) 591, on the definition of the term proof beyond reasonable doubt, and said it is for the prosecution to establish that offence has been committed, and that was with certainty, that the accused was the person who committed the offence; that by Section 138(2) of the Evidence Act, the law places such burden on the prosecution, which never shifts (OREPEKAN VS. AMADI (1993) 11 SCNJ 68 at 83)
Counsel submitted that to prove the allegation that Appellant caused the death of the children by poisoning, as contained in the charge, the following ingredients of offence of murder must be proved, as stipulated in the case of NKEBISI VS. STATE (2010) 5 NWLR (Pt. 1185) 471 at 495 - 496:
"(a) the deceased died
(b) the death of the deceased was caused by the accused and
(c) the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was the probable consequence."
He added that, by law, the prosecution must prove all the ingredients in order to succeed; that if it fails to establish any of the requirements, the accused is entitled to be free. He relied on EMEKA vs. STATE (2001) 15 NWLR (Pt.734) 667; AYUB KHAN VS. STATE (1991) 1 NWLR (Pt.123) 127; EDET VS. FRN (2001) 1 NWLR (Pt.695) 502 at 505.
In order to prove the guilt of the accused person, Counsel submitted that the prosecution must confine itself to the words of the charge framed against the appellant; that is to say, the prosecution must prove that the Appellant caused the death of the children by poisoning them. Counsel then called our attention to the evidence of the 4 witnesses for the prosecution. He particularly pointed at the evidence of PW1, which he said the trial Court had held on it; thus:
"This Court agreed with the defence that the evidence of PW1 is fatal to the prosecution's case, because of the contradiction contained therein and is a hearsay evidence. This Court thereby discountenances same as unreliable."
Counsel agreed with the trial Court on the findings on PW1's evidence and the decision to jettison it being hearsay and unreliable.
On PW2, Counsel said the evidence was equally hearsay; that she even said:
"It was the accused person that gave me the Fura, I didn't know whether it (Fura) contain poison or not" Counsel said, that showed that PW2's earlier statement that when the Fura was checked a poison was found in it, was founded on alleged checking by someone else, and that person was neither named nor called as a witness. Thus, PW2's evidence was complete hearsay; that a person cannot give evidence of facts that are not within his knowledge. He relied on the case of ARMEL'S TRANSPORT LTD. VS. MARTINS (1970) ALL NLR 27 (Reprint) at 31. He also relied on Section 77 of Evidence Act 1990, as amended, and on the case of JUDICIAL SERVICE COMMTTTEE VS. OMO (1990) 6 NWLR (Pt.157) 407 at 468.
On PW3's evidence, Counsel said the same was fatally contradictory and full of distortions; that from her evidence as narrated in Records, PW3, who was said to be Maimuna Ya'u, was rather talking about another person as Maimuna that she saw the Fura inside Maimuna's room (page 13); that she gave the same Fura to her daughter; that she saw Maimuna giving her children the Fura before she gave her child too (page 16); that it was obvious PW3 was not the mother of Hafsatu (the 7 month old deceased) known in the charge sheet as Maimuna Ya'u; that such confusion leaves room for doubt about the case of the prosecution which should be resolved in favour of the Appellant. He relied on the case of ONUOHA VS. STATE (1989) 2 NWLR (Pt. 101) 23 at 38.
Counsel further stated that the Pw3 did not in any way establish the fact that Hafsatu died because she was poisoned; that the PW3 even said on page 16 of the Records: "I didn't know who brought the Fura". This evidence, Counsel said, is vital inspite of what PW3 attributed to the appellant as an admission.
Counsel said that all exhibits P1, P2 and P2A tendered by the PW4 had no evidential value and should not have been admitted. Counsel said that the process of recording the 2nd statement of the Appellant (Exhibit P2A) after the Police had told the Appellant to tell the truth, conflicted with the words of caution administered to the Appellant and was against the provisions of Section 27 of the Evidence Act. Thus, it was not voluntary and freely made; that such statement ought not to have been admitted during the trial. He relied on the case of EBHOMEIN VS. THE STATE (1963) ALL NLR (reprint) 371 at 374; STATE VS. RABIU (2013) 8 NWLR (Pt.1357) 587 at 605 - 606.
Counsel added that the Appellate Court has a duty to reject inadmissible exhibit which was erroneously admitted. He relied on the case of ROSSEN (NIG.) LTD. VS. SAVANNAH BANK NIG. LTD (1995) 9 NWLR (Pt.420) at 456; ANYAEBISI VS. R.T. BRISCOE (1977-1988) SCJE VOL.2 PAGE 511; AJAYI VS. FISHER (1956) 1 F.SC 90; ESSO WEST AFRICA VS. ALLI (1968) NMLR (Pt.414) at 423 - 424; OKUMU OIL PALM CO. LTD. VS. ISERHIEM HIEN (2001) FWLR (Pt.45) 670 at 684.
Counsel said that it was wrong for the trial Court to rely on the alleged confessional statement to convict her. He also submitted that Exhibit P1 (medical report) was wrongly admitted despite that defence did not raise any objection to its admission. He appreciated the fact that medical evidence is not indispensible in the prove of a charge of murder, but said that in the instant case where killing by poisoning was alleged, medical evidence was mandatory to establish that the substance that caused the death of the deceased was, infact, poisonous; that can only be ascertained by physical examination of the substance which caused the death.
Counsel called on us to take a careful look at Exhibit P1 (page 51 of the Records). He submitted that when the Exhibit P1 states:
"Child was brought with history of injesting poison 'Fura' few hours prior to presentation"
It shows the report was founded on information told by another person to the Doctor and that formed the basis of the Doctor's findings; thus, the information was not derived from the personal examination by the Doctor by taking her blood sample for examination. He relied on the case of OKORO VS. STATE (1998) 14 NWLR (Pt.584) 181 at 207; He submitted that for Exhibit P1 to be admissible, the person who told the story to the Doctor has to be called as a witness.
Counsel further submitted that even the alleged medical report (Exhibit P1) did not cover the other 2 deceased persons as it only covered Hafsatu, and so there was nothing to show the cause of the death of Musa Yusuf and Nana Dausiya Musa.
Counsel further referred us to the findings of the Court on page 47 of the records, where he said the Lower Court held to absolve the Accused persons, as follows:
"There is no dispute that three children, Yusuf, Nana Fawziyya and Hafsatu did not (sic) die it is also not disputable that they didn't drink the Fura prepared by the accused person. It is also disputable that the accused was not the one that gave Maryam PW2 the mother of the children the Fura in question which caused the death of the children after they have taken or drank the same Fura."
He urged us to resolve the issue for the Appellant.
On issue 2, which he said was on the failure of the Lower Court to meticulously assess the evidence adduced by the parties and apportion probative value to them before reaching a conclusion, Counsel submitted that the failure of the trial judge to do so, resulted in the wrong conclusion and finding the Appellant guilty; that the trial Court heavily relied on the alleged confessional statement of the Appellant, and in ascribing probative value to the same, the trial Court failed, awfully, to consider the prompting made by the DPO after which the additional statement (Exhibit P2A) was made; that apart from the fact that the prompting negated the words of caution administered to the Appellant, the additional statement was made at the instruction and demand specifically to say what the DPO thought acceptable 'truth'. Counsel used the evidence of PW4 to illustrate his point and argued that, if the Lower Court had directed its mind to this fact, it would have seen the need to examine critically the contents of the 1st confessional statement and the supplementary alleged confessional statement, with the retracted evidence of the Appellant on oath, in line with what the Supreme Court said in the case of AGUDO VS. STATE (2011) 18 NWLR (Pt.1278) 1 at 26:
"A Court can convict on the retracted confessional statement of an accused person but before this is done, the trial judge should evaluate the confession and the testimony of the accused person and all the evidence available. This entails the trial judge examining the new version of events, presented by the accused person which is different from his retracted confession and the judge asking himself the following questions:
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statement 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 consistent with other facts which have been ascertained and have been approved?"
He argued that the use of the word "I believe" by the trial judge in his findings, without proper evaluation of the evidence would not save the situation, as there was no basis for such belief.
He relied on the case of ONUOHA VS. STATE (1989) 2 NWLR (Pt.101) 23 at 40.
Counsel submitted, again, that the evidence of PW2 and PW3, which the trial Court relied on, were hearsay, contradictory and full of distortions and could not tie the conviction. He relied on OKONKWO VS. UDOH (1997) 9 NWLR (Pt.519) 16; AMADI VS. AMADI (2012) ALL FWLR (Pt.626) 559.
He urged us to interfere with the findings of fact by the trial judge; that the same did not consider the evidence by the Appellant, denying the commission of the offence. He relied on the case of AMADI VS. AMADI (supra) at 575; STATE VS. RABIU (2013) 8 NWLR (Pt.1357) 585.
He urged us to allow the appeal and set aside the conviction of the Appellant and the sentence.
Responding, Counsel for the Respondent, Yakubu A.U. Ruba Esq., (Learned Attorney General of Jigawa State), relied on the case of AKPA VS. STATE (2008) 14 NWLR (Pt.1106) 72 at 90 on the ingredients required to prove a charge of murder:
(a) That there was death of a human being
(b) That the death was caused by the accused person
(c) That the act of the accused person that caused the death was done with intent or knowledge that death was the probable consequence.
Counsel summed up the evidence of the PW1, PW2 and PW3 and submitted that it was established that, truly, there were deaths of human beings, Yusuf, Nana and Hafsatu.
On the submission of Appellant's Counsel that the evidence of the prosecution witnesses were full of contradictions and distortions, Counsel for the Respondent submitted that, to take the benefit of alleged contradiction in evidence, such contradiction must be material and substantive, relating to the material point in the prosecution. He relied on DIBIE VS. THE STATE (2007) NWLR (Pt.1038) 30 at 50. He asserted that there were no contradictions in the case presented by the prosecution.
Counsel placed reliance on the confessional statement of the Appellant, saying that the Appellant's confessional statement was well taken and used by the trial Court; that by virtue of the Evidence Act, an admission made at any time by a person charged with a crime, or suggesting that he committed the offence, is relevant; that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence with which he is charged, the statement becomes confessional.
He relied on the case of EGBOGBONOME VS. THE STATE (1993) 7 NWLR (Pt.306) 383; he submitted that where a confessional statement is in evidence, as in this case, the trial Court, after hearing evidence and evaluating the same, can convict, even on the confessional statement alone, if it is satisfied. He relied on the Supreme Court decision in the case of Sule vs. The State (2009) 4 NC 456 at 478; HASSAN vs. STATE (2001) 8 MJSC 105.
He submitted that the trial judge was right in placing reliance on the confessional statement of the Appellant to convict her.
On the 2nd ingredient that the death was caused by the Accused person, counsel submitted that the prosecution had established the offence beyond reasonable doubt, as per the evidence of PW1, PW2, PW3 and pw4; that Appellant in her confessional statement also stated the way and manner her act resulted in the death of the children. He relied on the case of OJO VS. FRN (2008) 11 NWLR (Pt.1099) 467 at 513.
Counsel urged us to resolve the issue against the Appellant and dismiss the appeal.
RESOLUTION OF ISSUES:
Appellant's Reply brief was on a premise that the Respondent did not frame issue for determination and did not adopt Appellant's issues for the determination of the appeal, and so whether that was not incurably defective brief and did not amount to admission of the appellant's submission?
That, I think, was a strange or novel point to raise in a reply brief. In the first place, Appellant was wrong to say that the Respondent did not frame an issue for determination of the Appeal. I had earlier reproduced the lone issue distilled by the Respondent for the determination of the Appeal.
Even if the Respondent did not distill any issue for determination of the appeal, that, in law, cannot amount to admission of the arguments of the Appellant, as the Appellate Court still has a duty to consider the merit of the appeal by evaluating the entire evidence adduced in the case in the light of the pertinent issues arising for determination in the appeal, considering also the arguments by the parties. The fact that a Respondent did not canvas any argument in an appeal is never a guarantee that the appeal will succeed, as the Court, in its appreciation of the law and evidence in the case may find the arguments of the Appellant unreliable and incapable of sustaining the appeal.
The role of reply brief in appeal is to contest fresh points of law, raised in the Respondent's brief, which were not envisaged or argued in the Appellant's brief and so the Appellant is required to ventilate on it so that the Court would not be misled by the Respondent. It is never meant to be a second chance for the Appellant to reconstruct or better his argument in the appeal. See the case of NNPC VS. AMINU (2013) LPELR 21396 (CA)
"...the arguments of the Appellant in the Reply Brief were not on fresh issues of law, arising from the Respondent's brief, but effort to substantiate the alleged diversion or misconstruction of the Appellant's address by the Respondent's Counsel; it was an improvement on the Appellant's address (argument). A Reply Brief is not meant for such purpose, but to tackle fresh issue(s) of law, raised in the Respondent's brief outside the scope of the Appellant's brief, for which Appellant has a duty to explain and debunk to save the Court from being misled."
See also Order 18 Rule 5 of the Court of Appeal Rules 2011; NIGERIA YEAST AND ALCOHOL MANUFACTURING CO. PLC VS. ALL MOTORS (NIG) PLC (2011) ALL FWLR (Pt.600) 1226; GOODWILL & TRUST INV. LTD VS. WITT & BUSH LTD (2011) ALL FWLR (Pt. 567) 517.
The main point of contention by Appellant in this appeal is on the quality of evidence adduced by the prosecution on which the trial Court relied upon to convict the Appellant. Appellant's Counsel argued that the alleged confessional statement or additional statement by the Appellant (Exhibit P2A) was not voluntary as the same was made following the direction of the D.P.O. that the Appellant tells the truth. Appellant also picked quarrel with the evidence of PW2 and PW3, saying the same were hear-say evidence and full of contradictions and distortions.
Appellant's Counsel had concluded that the prosecution did not prove beyond reasonable doubt that Appellant, caused the death of the deceased, by poisoning them.
Counsel argued that to succeed in establishing the alleged murder, the prosecution had a duty to establish all the ingredients of offence of murder, which he listed as per the case of NKEBISI VS. STATE (2010) 5 NWLR (Pt. 1185) 471 at 495 - 496.
The charge against the Appellant had three counts, each for culpable homicide punishable with death contrary to Section 223 of the Penal Code, Cap 107 Laws of Jigawa State, 1998 and punishable under Section 221 (b) of the Penal Code. One of the Counts (and they were all the same, except for the different particulars of the deceased), states:
"That you AMINA MUSA (f) on or about the 6th day of February, 2009 at about 0700 hours at Tsakani Fulani settlement Area of Roni Local Government Area within the Jigawa Judicial Division committed culpable homicide punishable with death by causing the death of one Yusuf Musa 7 years old by poisoning him and thereby committed an offence contrary to Section 223 of the Penal Code, cap 107 Laws of Jigawa State, 1998 and punishable under Section 221(b) of the Penal Code, cap 107, laws of Jigawa State 1998."
The 2nd and 3rd counts concerned causing the death of Nana Dausiya Musa (f) 3 years old and Hafsatu Ya'u (f) 7 months old, respectively, by the same process of poisoning.
Of course, the fact of the death of the three young children was not in doubt. The remaining task of the prosecution was that of establishing that the death of each of the children (or any of them) was caused by the Appellant, by poisoning them.
In its judgment, the trial Court said:
"Upon considering the evidence of the prosecution and the defence put forward on behalf of the accused, this Court is of the candid view that the prosecution has succeeded in proving all the ingredients of culpable homicide punishable with death against the accused person "page 47 of the Records."
But in a sudden apparent somersault, the learned trial judge said:
"There is no dispute that three children Yusuf, Nana Fauziyya and Hafsatu did not die, it is also not disputable that they didn't drink the Fura prepared by the accused person. It is also disputable that the accused was not the one that gave Maryam PW2 the mother of the children the Fura in question which caused the death of the children after they have (sic) taken or drank (sic) the same Fura. The accused person further confirmed that by stating that she was sorry. She didn't mean to kill the children." (page 47 of the Records)
Of course, the above is a clear contradiction of the holding that the prosecution had proved all the ingredients of the offence of culpable homicide punishable with death! Did the learned trial judge have a different or private meaning for his findings, when he said:
"There is no dispute that three children, Yusuf Nana Fauziyya and Hafsatu did not die; it is also not disputable that they didn't drink the Fura prepared by the accused person. It is also disputable that the accused was not the one that gave Maryam PW2 the mother of the children the Fura in question which cause the death of the children after they have taken or drank the same?"
Those findings were actually against the run of evidence, which clearly left no one in doubt that the three children died, and that they all drank the substance called Fura, which the Appellant gave to PW2 (the mother of two of the deceased children). There is also no doubt that she (Appellant) gave the Fura to the PW2 the previous day, as the Appellant herself, had admitted the same. (See pages 24 and 25 of the Records). Those findings by the trial judge were therefore unreasonable and perverse, and completely a reverse of the true position. The said findings are hereby set aside. See the MOMOH VS. UMORU (2011) LPELR SC 63/2004; see also OBODO VS. OGBA (1987) 2 NWLR (Pt.54) 1; (1987) LPELR SC.95/1986,
Where it was held:
"...It is not the function of an appellate Court to disturb the findings of fact of the trial Court unless such findings are shown to be unreasonable or perverse and not a result of a proper exercise of judicial discretion. (NTIARO VS. AKPAM 3 NLR 7 at 10)."
Did the prosecution prove all the ingredients of the charge against the Accused person, as the trial Court held, especially that Appellant's act caused the death of the children?
Appellant had argued that the evidence of PW2 and PW3, which the Court relied on, were hearsay and contradictory or full of inconsistencies. He also argued that the confessional statement which the trial Court relied on was inadmissible as it offended the law.
The trial Court had believed the evidence of PW2 and PW3, saying they were material witnesses. The two women (mothers of the deceased) gave account of what happened after the children had drunk the Fura, earlier given to PW2 by the Accused person; they said the children were vomiting and stooling; Yusuf died on the spot, while the girls did in the hospital.
PW2 had said (page 14 of the Records):
"On 5/2/2009 at 4:00pm the accused person gave me 'Fura' ... I didn't use the Fura until on 6/2/2009, I gave the Fura to my children the moment they took the Fura the two of them started vomiting and diarrhea. When the Fura was checked a poison was found in it..."
PW3 said:
"...When I heard about the vomiting and diarrhea I went to the house where I met the two kids, when I reached them Yusuf is already dead. Nana Fauziyya was brought out, and when I saw the Fura drunken by Nana I gave the same Fura to my own child. The Fura that people drink... I also gave the same Fura to my daughter ... Hafsatu.
Hafsatu also died.. as result of the Fura ... she also started vomiting and diarrhea ..." page 15 of the Records.
I think the evidence relating to the drinking of the Fura, and the source of the Fura, the vomiting and stooling after the drink and the death of the children as a result of drinking the Fura, were clear and direct evidence, without any ambiguity. It is however true that the way the trial judge recorded some part of the evidence of the PW3 left much to be desired, as he was mixing up her name with that of PW2 and confusing direct speeches with reported speeches; But that did not blur or confuse the facts she accounted for, namely what the children drank, what happened to them, who supplied the Fura and the death.
I therefore hold that there were no material contradiction or discrepancy in the evidence of the PW3 or PW2, and in between them, to cast doubt on their testimonies on how the 3 children died, after drinking the Fura.
The allegation was that the Fura was poisoned, and that the Accused person was the person who put the poisonous substance in the Fura, which she gave to the PW2, her co-wife (whom Accused person confessed was a rival and they were not friendly. See page 24 - 25 of the Records). Of course, the medical report (Exhibit P1), issued on one of deceased children (Hafsatu), opined the cause of death to be: "food poisoning, with '2' Acute respiratory distress."
It was the Appellant that rather supplied the evidence on how the 'Fura' had the poisonous substance. She did that in her additional confessional statement (Exhibit P2A), when she said:
".... One year ago, my husband Musa Yahaya (m) bought a poison in order to kill rats. I took a poison and put into or inside Fura intention to killed (sic) my rival one Mariyam Musa (f) of the same address. I didn't have mind to kill her childrens (sic) ... we are not living peace (sic) with her, always fight with her because of that, nothing childrens do me, is God that brought it, I am pleaded (sic) you to forgive my offence that I committed.