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The Court of Appeal Jos Division discharged and acquitted the Appellant who allegedly poisoned her step child to death and set aside the decision of the Borno State High Court wherein the appellant was convicted for murder and sentenced to death by hanging based on the doubt in the prosecution’s case. The decision is reported in HASSAN v. STATE (2018) LPELR-46817(CA)

THE GIST OF THE CASE

The brief facts as presented by the prosecution was that on the 16th day of June, 2014 at about 0800hrs, one Hassan Idris of Kilabaliya village in Marte Local Government Area of Borno State reported at Marte Division that on 14/06/2014 at about 0700hrs, when he came back from his farm, he met his daughter one Maimuna Hassan 2 years old vomiting. Upon enquiring of what was wrong with her, his son one Saleh Hassan told him that when he left for his farm, their step mother Hauwa Hassan diluted a chemical known as herbicide with water in a glass cup and administered same to her and as a result she fell sick and started vomiting. She was rushed to the primary health care clinic Kirenuwa town for treatment, but later died on the same day while receiving treatment.

Hauwa, the step mother of the victim was arraigned before the High Court of Justice Borno State and charged as follows:

THE CHARGE

“That you Hauwa Hassan F on or about the 14th June, 2014 at about 0600hrs at Kilabaliya Village Marte Local Government Area which is within the jurisdiction of this Honourable Court, caused the death of one Maimuna Hassan F (2 years) of the same address by diluting a chemical known as (Herbicide) with water and administer it on her knowing that death will be the probable consequence of your act and you thereby committed an offence punishable under Section 22(b) of the Penal Code Law.”

Trial commenced before the High Court, wherein Hauwa pleaded not guilty to the charge punishable under Section 221(b) of the Penal Code. The prosecution called three (3) witnesses and tendered 6 (six) Exhibits. The Exhibits are confessional statement of the accused at State CID Maiduguri marked as Exhibit ST1, statement of the complainant Hassan Idris marked Exhibit ST2, statement of Saleh Hassan (deceased brother ST3), statement of the accused person at the divisional level ST4, additional statement of the accused person at the divisional level ST5, the medical report marked as MR1 and closed its case. On the accused’s part, she testified as DW1 and called 2 (two) more witnesses but tendered no Exhibit. Both counsel addressed the Court after which the learned trial Judge evaluated the evidence and ascribed probative value to the evidence of the witnesses who testified. At the end, learned trial Judge in his Judgment found the Appellant guilty as charged, convicted the accused and sentenced her to death by hanging.

Dissatisfied with the decision of the lower Court, Hauwa (hereinafter referred to as the appellant) appealed to the Court of Appeal.

In the Appellant’s Brief of Argument, three issues were distilled for determination as follows:

  1. “Whether the prosecution proved the case of murder against the Appellant beyond reasonable doubt.
  2. “Whether failure to conduct trial within trial by the trial Court occasioned miscarriage of justice.
  3. “Whether lack of medical test on Exhibit ‘A’ and Autopsy examination on the deceased’s body, there is conclusive evidence on the cause of deceased’s death.”

On the part of the Respondent, the issues formulated by the Appellant in her Brief of Argument were all adopted. Respondent states that issues 1 and 3 will be argued jointly.

Having examined the Appellant’s issues, the court adopted issue one in determining the appeal. The court was of the view that Issues 2 & 3 are matters that can be treated under issue one. For avoidance of doubt the sole issue the court formulated reads:

“Whether having regard to the facts and circumstances of this case, prosecution could be said to have proved its case beyond reasonable doubt.”

APPELLANT’S ARGUMENT

In arguing issues one and two learned counsel for the Appellant submitted that for the prosecution to succeed in case of murder, it must show

  • that there is death of human being;
  • the death was caused by the accused person; and
  • that the act was done with the intention of causing death or the accused know that death would be the probable consequences of his act.

That the above ingredients of the offence must all be proved together and that failure to prove any one of them means failure of the charge itself. Reliance placed on Adava v State (2006) NWLR (Pt. 984) 152 at 167. That the trial Court relied on Exhibit ST1 and Exhibit ST5 the alleged confessional statements of the appellant. Learned counsel submitted that the alleged confession has no weight to be attached because Appellant denied making it voluntarily. That appellant would be released if she confesses at Marte Police Station. That the learned trial Judge agreed that there is inducement of promise but held that the subsequent statement made by the appellant did not show that it was made as result of inducement. Counsel also contended that the Hausa version of the statement was not tendered in evidence. That the law required that where a statement of suspect was taken in local language both the translated version and one in local language must be tendered in evidence, if not no weight will be attached to the document (Exhibits) tendered. Cited in aid are Umar v State (2016) LPELR 41182, Olanipekun v State (2016) LPELR 40440 (SC). That the above principle was not complied with as such Exhibits ‘ST5’ and ‘ST1’ should be discountenanced.

Learned counsel further submitted that the truth of the confession was not tested by the trial Court as required by plethora of cases. Reliance placed on Adesina v State (2012) 14 NWLR (Pt.1321) 429 at 447-448 paras H-C. That there is nothing outside the confession to show that it is true. That there is no any corroborative evidence to support the alleged confession and it is not consistent with other facts or any fact ascertained and proved. According to counsel the trial Court did not apply the test in this case which resulted to miscarriage of justice. Learned trial counsel further submitted that it is the duty of the Court to look for some evidence outside the confession which would make the confession probable. See Bassey v State (2012) 12 NWLR (Pt.1314) 209 at 227 para C-D and Okah v State (2014) 8 NWLR (Pt.1410) 502. That there is nothing outside the confession to make it probable. Counsel also contended that there is no cogent, direct or circumstantial evidence to show that the appellant diluted chemical herbicide (Exhibit A) and gave it to the deceased. That the alleged eye witness Sale Hassan, a child was not called to testify in Court. Counsel submitted that the chemical was kept in their father’s room and the deceased and other child had access to Exhibit ‘A’. That evidence required to prove murder is either direct or circumstantial. Reliance placed on Aruna v The State (1990) 6 NWLR (Pt.155) page 125 Ozaki v The State (1990) NWLR (Pt.124) pg. 42.

Learned counsel further submitted that the Appellant raised the defence of Alibi at the Marte Police State at the time of the incident that she was not at home but out to fetch water at the well. That the police did not investigate the Alibi. Same was also raised at the trial and appellant even called DW3 whose testimony was corroborated to prove her Alibi. That once an Alibi has been raised the burden is on the prosecution to investigate it and rebut such defence. See Adedeji v The State (1971) 1 ALL NLR 75.

That failure to investigate it and rebut the allegation will cast doubt on the probability of the case for the prosecution. Reliance placed on Fatoyinbo v A.G Western Nigeria (1966) WNLR 4, Adio v The State (1986) 3 NWLR (Pt.31) 714 at 720 paras G-H. Counsel submitted that from the authorities cited above, the failure of the prosecution and the police to investigate the Alibi which was raised at the early stage, raise doubt in the case of the prosecution. He urged the Court to so hold. Counsel relied on the case of Mahmud v State (2016) LPELR 41372 CA and submitted that the Appellant objected to the admissibility of Exhibit ST5 and in her defence she stated that she was induced by PW3 that she will be released before she made Exhibit ST1 and ST5.

That the trial Court ought to have conducted trial within trial to ascertain the voluntariness of both Exhibit ST1 and ST5. That the trial Court failed to do so and it has occasioned a miscarriage of justice.

Under issue 3, Appellant’s counsel submitted that medical evidence is not always required to prove cause of death where cause of death can be established by other evidence. That in the instant case prosecution alleged that deceased died of poison as such medical evidence is necessary to ascertain what type of chemical was used so also the autopsy result to ascertain the effect of the chemical in causing the death of the deceased. Reliance placed on State v Okpala (2012) 49 NSCQR (Pt.1) P378. Counsel contended that the requirement for the Autopsy and the medical report must be made by registered Medical Doctor and pathologist and the laboratory test be made by a qualified medical officer. See Section 55 of the Evidence Act. That in the case at hand, the trial Judge concluded that Exhibit ‘A’ (a substance alleged to have been drank by the deceased) is a poison. Counsel submitted that there is no evidence to show that Exhibit ‘A’ is a poisonous substance.

That the conclusion of the trial Judge was mere speculation and suspicion which cannot take position of evidence to sustain conviction. See Hamza v Peter Kure (2010) 10 NWLR (Pt.1063) 630 and Enweremadu v State (2017) LPELR 42488 para C-D. Counsel submitted that the conclusion of the trial Court that Exhibit ‘A’ is a poisonous substance that caused the death of the deceased is speculation, perverse and not supported by evidence. According to counsel PW2 is not a Medical Doctor to give medical report Exhibit MR1. See Zaman v State (2015) LPELR 24595 (CA). He finally submitted that Exhibit ST1 and Exhibit ST5 did not qualify as valid confessional statements.

RESPONDENT’S ARGUMENT

In response, Respondent’s counsel submitted under issue one and two that it is trite law that a free and voluntary confessional statement of an accused person alone can secure conviction without any corroborative evidence even if the accused person resile on it. See Adeyemi Pedro v State (2017) 14 NCC page 427 at pages 457 paras D-G and Oluwafemi Ola v State (2016) 12 NCC page 44 at 109 paras B-E. Learned counsel submitted that it is the law that where an accused person challenges the voluntariness of his/her confessional statement the lower Court can order for a trial within trial to ascertain the voluntariness of same and such must be done timeously. Cited in aid Oluwafemi Ola v State (supra) 82 paras B-F. That mere denial of making a voluntary statement by an accused person at the time of tendering same does not warrant the lower Court to order for a trial within trial and such document can be admitted accordingly. It can only affect the weight to be attached. See Osem v State (2012) 7 NCC pg. 132 at 155 paras A-E. That appellant denied the allegation against her in Exhibit ST4. Counsel submitted that after further investigation by the police and recovery of Exhibits at the scene of crime, she volunteered to make Exhibit ST5.

Learned counsel further submitted that Section 39-50 of the Evidence Act 2011, stipulated circumstances where Court can admit any relevant document without calling the original maker. That in the case at hand Exhibit ST2 and ST3 are statements of the complainant and that of the eye witness who is a child 7 years old. That prosecution could not secure their attendance hence the reliance on Section 5 and 39 of the Evidence Act 2011 for purposes of tendering same which were admitted in evidence without objection by the appellant or her counsel. See Baalo v FRN (2017) 14 NCE 1 at 53-54. He urged the Court to resolve this issue in favour of the respondent.

In responding to appellant’s issues 1 and 3, learned counsel referred to Section 68 of Evidence Act 2011 and the case of Azu v State (1993) 6 NWLR (Pt. 299) at 303. Counsel submitted that PW2 is a medical officer who is specially skilled in handling matters familiar to the case at hand, identified Exhibit ‘A’ as a harmful chemical which can cause death. That Appellant did not object to the admissibility of Exhibit ‘A’ and ‘B’ at the time of tendering same. See Azu v State (supra) and Egbujuo v State (2016) LPELR 40938 (CA). Counsel contended that PW2 after examination of the body of the deceased he wrote down findings on medical card marked as Exhibit MR1 which disclosed cause of death as ingestion of a chemical. It was further submitted that under our law a medical Doctor in government services who conducted an examination or autopsy on a deceased and issued any certificate or report can be admitted in evidence before any Court. Reliance placed on Section 55(2) of the Evidence Act 2011 and case of The State v Godfrey Ajie (2000) 11 NWLR (Pt. 678) 434 at Posu v State (2011) 2 SCNJ 37 at 45-48. That PW2 laid proper foundation as a medical officer in the service of Borno State Government and complied with S.94 (1) of the Evidence Act by issuing Exhibit MR1, stating clearly the cause of death.

On the issue of Alibi raised by the appellant, counsel submitted that the law is that it is the duty of the appellant to furnish the particulars of his/her Alibi in full details to the police at the earliest opportunity as to his/her whereabout as at the time of the incident. Failure to do that would demolish the defence. Cited in aid are Aliyu v State (2011) 10 ACLR page 208 at 225 lines 20-35, Inyang v The State (2014) 10 ACLR pg. 136 at 157 lines 15-30. According to counsel the appellant raised the defence of Alibi only when she was cross-examined in the witness box. She admitted under cross-examination to have left the house to her neighbors house around 9:00am on the date of the incident which was corroborated by DW2, who said appellant was in her house around 8-9am. That the incident happened around 6-7am. That appellant, together with the deceased and her elder brother were sound and healthy when their father left the house, but when he came back he saw deceased had collapsed and vomiting and appellant was absent. Appellant claimed she went out to fetch water. Counsel submitted that the law is that where an accused person/appellant make two contradictory oral statement one raising an Alibi and the other denying the allegation the proper thing is for the lower Court to discountenance with all the statements and rely on the cogent and available evidence before it. Counsel urged the Court to resolve the issue in favour of the Respondent.

Learned counsel further submitted that the prosecution has three means of proving the guilt of an accused. They are:

  1. a) Direct evidence;
  2. b) Confessional statement; and
  3. c) Circumstantial evidence.

See Agboola v State (2014) 10 ACLR pg. 382 at 411 lines 30-35. Counsel submitted that in the case at hand prosecution relied on confessional statement and evidence in proving the guilt of the appellant. Counsel submitted that where a confession is cogent, direct, positive and compelling Courts can convict upon it with or without corroborative evidence outside the confession. See Agboola v State (supra), Onyeye v State (2017) 7 NCC pg. 304 at 339-340. Furthermore, the guilt of the appellant was established not only by confessional statements marked as Exhibit ST1 and ST5 but also from the surrounding circumstances of the case which are cogent, compelling and irresistibly pointing an accusing finger at the appellant that she and no other person caused the death of the child. Reliance placed on State v Odunayo Ajau (2017) 14 NCC 58 at 102-103. Counsel urged the Court to hold that respondent had proved its case beyond reasonable doubt and resolve these issues in favour of the respondent. See Pedro (supra), Lawal v State (2016) 35 WRN 35 at 57 lines 30-35 and Gwangwan v State (2016) 1 WRN 88-89 lines 45-50. On the whole she urged the Court to dismiss the appeal.

DECISION OF THE COURT OF APPEAL

The court commenced by restating the law on burden of proof that in criminal trials, the burden of proving the allegation beyond reasonable doubt against the accused person is always on the prosecution, it is a burden that never shifts and so credible evidence has to be led, in order to discharge that burden. See Okoh v State (2014) 8 NWLR (Pt.1410), Infaranmoye v State (2017) 8 NWLR (Pt.1568) 457 at 468, Igbi v State (2000) 3 NWLR (pt.648) 169, Amadi v FRN (2001) 12 SC (Pt.111) 55, Ugwanyi v FRN (2010) LPELR – 5050 (CA) and Abiodun v The State (2011) LPELR – 4987 (CA).

It is equally well settled that the guilt of an accused person may be established in one of three ways, that is to say:

  • By direct evidence of witnesses;
  • By circumstantial evidence; and
  • By reliance on the voluntary confessional statement ofthe accused.

See Bello Okashetu v The State (2016) LPELR -40611 (SC), Stephen v The State (2013) 8 NWLR (Pt.1355) 153,Oguonzee v The State (1998) 5 NWLR (Pt.551) 521, Akwuobi v The State (2017) 2 NWLR (Pt.1556) 421.

On the ingredients, the court held that in a charge of Culpable Homicide punishable with death under Section 221 of the Penal Code the prosecution must prove beyond reasonable doubt that:

  • The deceased died;
  • That the death of the deceased was caused by the act of the accused person(s); and
  • That the act or omission of the accused person(s) whichcaused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.

See Ubani v The State (2013) 18 NWLR (Pt.851) 224, Ogba v The State (1992) 2 NWLR (Pt.222) 164, Abogede v The State (1996) LPELR -45 (SC), (1996) 5 NWLR (Pt.448) 270.

In criminal cases the burden of proof is on the prosecution to prove beyond reasonable doubt the guilt of the accused. This burden of proof is throughout on the prosecution to establish the guilt of the accused beyond reasonable doubt and it never shifts. See Ani v State (2003) 11 NWLR(830) 142 and Ifejirika v State (1999) 3 NWLR (Pt.593) 59. It must however, be stated that proof beyond reasonable doubt is not “Proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. This is because absolute certainty is impossible in any human adventure including the administration of justice. Proof beyond reasonable doubt simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt. See Adeleke v State (2013) 16 NWLR (Pt.1381) 556 and Babarinde v State (2014) 3 NWLR (Pt.1381) 568.

It has to be noted also that the above ingredients of the offence must all be proved together and that failure to prove any one of them means failure of the charge itself. See Adava v State (2006) 9 NWLR (Pt.984) 155 at 167. In Ogba v State (1992) 2 NWLR (Pt.222) 164 @ 198 paras C-D this Court reiterated the law thus:

“Thus three conditions must co-exist and where one of them is absent or tainted with doubt the charge is not said to be proved. The onus of proof is on the prosecution throughout and does not shift.” See Obade v The State (1991) 6 NWLR (Pt.198) 435 at 456.

The first ingredient is whether the deceased died. The case for the prosecution is that the accused person diluted a chemical known as Herbicide with water and administered it to her 2 years old step daughter who instantly fell sick and started vomiting. The child was rushed to the Primary Health Clinic centre in Kirenwa town for treatment where she died minutes after admission. The evidence of PW2 and DW1 confirmed that deceased died. There is no dispute as to the fact that deceased died.

The crucial issue or material facts in this case are the facts that are directly necessary in proof of cause of death and culpability or otherwise of the appellant. The question is whether there is sufficient evidence to establish that it was the act of the accused that caused the death of the deceased. Three witnesses testified for the prosecution but none of them gave eye witness account of the incident. The testimonies of the husband and the brother are inadmissible and have no probative value. None of them was called as a witness. The only evidence that linked the appellant to the incident was the confessional statements marked as Exhibits ST1 dated 20/10/2014 and Exhibit ST5 dated 10/11/2014. The first statement she made to the Police in Exhibit St4 dated 10/11/2014 was a complete denial of the alleged offence. In her (Appellant) testimony in Court, she stated that the Police who brought her from Marte to CID told her to admit the offence and promised that their boss will release her.

Now what is a confessional statement? In the case of Shande v State (2005) ALL FWLR (Pt.279) 1342 at 1353 “Confession” is said to mean:

“An admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime.”

See also Mohammed v State (2007) ALL FWLR (Pt.383) and S. 27(1) of the Evidence Act. It can therefore be safely said that the confessional statement is one in which a person charged with the commission of a crime, admits by stating or suggests the inference that he committed the crime.

From the record particularly at page 20 showed that the two statements admitted through PW3 i.e Exhibit ST4 and ST5 were done so without objection by the appellant. While Exhibit ST1 was admitted in evidence through PW1. Appellant objected to its admission on the ground that he did not make the statement. Since appellant did not challenge the voluntariness of the statement the Court need not conduct trial within trial to ascertain the voluntariness of the statements admitted as Exhibit ST1 and ST5. The learned trial Judge rightly admitted the statements as Exhibits and even observed that the weight to be attached would be considered by the Court at the end of the trial. The record clearly showed that Appellant made three extra judicial statements to the Police. It appears from DW1’s testimony that he retracted making Exhibits ST1 and ST5 respectively. Appellant has therefore presented inconsistent statement as to his involvement in the alleged crime.

The law is well settled that the Court can convict on retracted confessional statement. There is a plethora of case law on this subject matter. See Ikemson v The State (1989) 3 NWLR (Pt. 110) 455 at 468-469; Nwachukwu v The State (2007) 12 SCM 447 at 455.

Nevertheless the Supreme Court in Dawa v The State (1980) 8-11 SC 236 in reliance on the English decision in R v Sykes (1913) 18 CR APP Reports and cited in Kanu v R highlighted six tests for the verification of confessional statements before any evidential weight can be attached to them.

These six tests have also been relied upon in a number of other cases notably R v Obiasa (1962) 2 SCNLR 402. (1962) 1 ALL NLR 657, Akpan v State (1992) 6 NWLR (Pt.248) at 460 and Ikpasa v A-G Bendel State (1981) 9 SC 7. The tests are as follow:

  • Is there anything outside the confession to showthat it is true?
  • Is it corroborated?
  • Are the relevant statements made in it of facts trueas far as they can be tested?
  • Was the prisoner, one who had the opportunity ofcommitting the crime?
  • Is his confession possible?
  • Is it consistent with other facts which have been ascertained and have been proved?

I wish to apply these tests to this appeal now being considered. There is nothing much outside the confessional statements Exhibit ST1 and ST5 that indicated that the facts contained in them is truth of what happened. As earlier stated this was no eyewitness account to the incident. Is there any circumstantial evidence that irresistibly links the Appellant with the alleged offence? The prosecution relied on the evidence of the community health officer’s so called medical report as evidence corroborating the confessional statement. The report was admitted as Exhibit MR1. PW3 diagonized the deceased as having drank insect spraying chemical and when brought to hospital the 2 year old girl was vomiting. That after 15 minutes the girl died. According to PW2’s report the cause of death is as a result of the chemical deceased drank. Under cross-examination PW2 said he did not know the chemical deceased ingested. I agree with learned counsel for the Appellant that PW2 is not qualified to issue a post-mortem, PW2 by virtue of Section 68 of the Evidence Act 2011 cannot qualify as an expert. An expert under Section 68 of the Evidence Act 2011 may be described as any person specially skilled in a particular field in which he had been invited to testify. See Aigbadion v State (1999) 1 NWLR (Pt.586) 284 CA. The Herbicide Exhibit ‘A’ which prosecution alleged the Appellant dispensed same into a glass cup Exhibit ‘B’ and gave the deceased Maimuna Hassan a two year old child to drink and as a result the deceased fell severely ill, was never scientifically tested to be poisonous. There is evidence adduced by the prosecution that the herbicide was sent to NAFDAC for analysis but could not get the report. I find it difficult to agree with the finding of the learned trial Judge at page 65 line 10 age 66 line 8 of the record wherein the Court concluded that Exhibit ‘A’ is a poisonous and hazardous substance by just smelling the substance without scientific analysis. The trial Judge had this to say:

“I have looked at Exhibit ‘A’ it is labelled Herbicide. I must state on record my experience of and impression of Exhibit ‘A’. The smell of Exhibit ‘A’ is so potent that on the two occasions it was brought into the Court room, its smell almost immediately polluted the whole atmosphere of the Court room and I as person could feel a gripping bitter sensation in my throat and chest from the effect of just inhaling the smell of Exhibit ‘A’. Furthermore, I managed to read the literature on the label of Exhibit ‘A’ while writing this Judgment and one can clearly see the sign of the skull and crossed bones that signifies poisonous and hazardous substance depicted in Black and white on the label of Exhibit ‘A’. I have no difficulty in finding that Exhibit ‘A’ is a poisonous substance.”

The above finding is based on suspicion. There is no evidence of corroboration placed before the Court by the prosecution. As earlier stated the statement made by Appellant’s husband and his seven year old son are not relevant because both statements are inadmissible. The manner in which the three statements were made by the Appellant creates doubt as to whether facts contained in the statements are true bearing in mind the fact that Appellants first statement was a complete denial of the offence. There is no concrete evidence to show that Appellant diluted Exhibit ‘A’ with water and gave same to deceased to drink. I agree with learned counsel to the Appellant that prosecution failed to link Exhibit ‘A’ to the Appellant and did not connect Exhibit ‘A’ to the cause of death of the deceased. There is flaw in the investigation conducted by the prosecution. I hold the view that there is no evidence outside Exhibits ST1 and ST5 to show the facts contained therein are true.

It is my humble view that prosecution had failed to produce cogent, compelling and irresistible circumstantial evidence to secure conviction. From all what I have said it is evident that prosecution had failed to prove its case beyond reasonable doubt. I am firmly of the view that the lower Court was clearly in the wrong to sentence the Appellant to death based on the insufficient evidence adduced before the Court by the prosecution. The law has become trite that where there is doubt in the mind of the Court as in the instant case, the doubt should be resolved in favour of the accused/Appellant. See Mohammed & Ors v The State (2013) LPELR – 22352 (CA), Kalu v State (1988) 4 NWLR (Pt.90) 503, Ogudo v State (2011) 12 SC (Pt.1) 71. It is better to free guilty person than an innocent person. In Okebata v State (2013) LPELR -22474 this Court observed thus:

“It is trite that all Courts are duty bound to give critical examination to evidence adduced before them and ensure that the innocent are not punished or the guilty set free. Courts should act on evidence and not speculation so as to ensure that justice in its purest form is administered in all Courts to all and sundry. See also Onah v State (1985) 3 NWLR (Pt.12) 236.”

As regards the attitude of appellate Court regarding evaluation of evidence the position of the law is that it is the duty of the trial Judge to evaluate the evidence and to make primary findings of fact. This duty unless it is shown not to have been done according to well laid down principles of law an Appeal Court cannot interfere with such findings. See Iriri v Erhurhobara (1991) 2 NWLR (Pt.173); Igago v The State (1999) 14 NWLR (Pt.637) 1, (1999) 10-12 SC 84 and Onuoha v The State (1998) 5 NWLR (Pt. 548). In the instant case, the findings of fact made by the learned trial Judge are perverse. This Court can therefore interfere with the findings arrived at by the learned trial Judge.

“In the circumstances, I give the benefit of the doubt in favour of the Appellant. The result is that there is merit in this appeal and it is hereby allowed. The Judgment of the High Court of Justice Borno State, holding at Maiduguri delivered on 12/12/2014 convicting and sentencing the Appellant to death is hereby set aside. The Appellant is according (sic) discharged and acquitted.”

APPEARANCES

T.A Lenkat holding the brief of B.K Kaka, Esq. For Appellant(s)

F.H Mohammed (SSC Ministry of Justice Borno State) For Respondent(s)

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