In giving my opinion, I concerned myself with the evidence of the prosecution witnesses and that of the defence. I also concerned myself with the burden of proof in criminal prosecution which proof beyond reasonable doubt (I need not cite the law for you).
I am concerned with the elements of the crime of murder or culpable homicide under the penal code, concerned with the basis of the decision by the Judge (Doctrine of last seen and circumstantial evidence)
Page 74 of the judgement is the starting point of the decision.
On page 76, the judge said this as he proceeds to deliver his judgement, “I wish to state that I have a duty thrust upon me to investigate and discover what is in any particular case will satisfy the interest and demands of justice”
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This is absolutely condemnable in law.
The role of a judge is to evaluate evidence placed before him. The burden of proof lies on the prosecution and the Judge miss the point and indeed is a ground of appeal for him to say he is investigating to discover. That is not his role. The role of the judge is to evaluate evidence placed before him. He is guided by the rule of evidence as to what is admissible and what it is not and the burden is on the prosecution.
This is a ground of Appeal.
On the same page down the line, the judge said “Before I proceed further, permit me to disabuse the mind of learned counsel for the defendant who have made heavy weather on the issue of lack of autopsy to determine what was the cause of death of Bilyaminu, lack of eye witness account, lack of confessional statement and absence of weapon use,”
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Again, no matter how stupid the address of the counsel is, you are bound to resolve all the issues raised based on evidence before the court. You cannot show your biases before evaluation. Another ground of Appeal.
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In Summary, the approach of the Judge is flawed in law by first demolishing the defence before sourcing or “investigating” the case of the prosecution.
There are two principles of law applied by the judge which in my opinion he got wrong. Firstly, The doctrine of last seen at the scene of crime and secondly, the application of circumstantial evidence as a proof of crime.
Let me say from the outset that before the application of these principles in evidence, the prosecution must have done his bit. That is prove death has occurred; that the death was caused by the act of the defendant and that the defendant intended the consequences or probable result of the act i.e. death of the deceased.
All of these elements must be present concomitantly and must be proved beyond reasonable doubt. The judge is to focus more on the evidence than address of counsel.
The reference to the provisions of the constitution in section 36(5) on presumption of innocence was totally misplaced. The prosecution cannot hide under the provision to abdicate his responsibility. There was evidence he needs to link the evidence to the defendant. The principles apply where either the body is missing and no other explanation on the circumstances of his death. There was a body, there were witnesses before his death and there was explanation by the defendant.
The bottom line is from the multiple injuries he received which one killed him or are there other medical conditions that could have killed him. This evidence could only be offered by forensic evidence, that is, a medical practitioner. Not a driver, a launderer, a watchman not even the accused can offer this. It needs expert evidence. This in my opinion is a ground for appeal.
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Who gave evidence that it was a knife that killed him? No one but the judge himself hiding under circumstantial evidence. Every evidence concerning the knife as cause of death or shisha bottle could have been resolved by forensic evidence.
There is no direct evidence from all the prosecution witnesses. Pw1 said he left him healthy in his lay judgement but at most he had injury on his finger sustained in his absence. So, is it a bite, shisha or knife? Who is in a position to distinguish the three? It is a forensic expert.
Relying on PW1 evidence on p.86 was wrong. Relying on medical report not tendered and testified by the doctors is short of evidence of an expert. The evidence of Pw2, a watchman could have been helpful to the prosecution if he were to have had a dying declaration from the deceased but he said nothing though alive.
Was there a proof of intention to kill the deceased as the next element? For instance, even if she clearly admits the killing, she could have been availed the defence of provocation which reduces it to manslaughter not punishable with death. Because there is heat of passion on her part when she saw the nude pictures sent. There could have also been the absolute defence of self-defence resulting from a fight. There were pieces of evidence that could have been resolved in favour of the defendant but the judge is silent on all these her pieces of evidence. It does not matter whether the lawyers raised it or not.
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The evidence of Pw1 and Pw4 which the Judge relied upon on shisha bottle broken before or after cannot resolve the issue neither the lie by the defendant is enough to relieve the prosecution of the burden. In fact, she had a choice to remain silent throughout the case, this is her constitutional right in a criminal proceeding.
Lying about Shisha bottle does not replace evidence or manufacture evidence. Evidence of the knife must be independently brought not inferred by court who now assumes the role of a witness. He cannot hide under circumstantial evidence to manufacture evidence. Was there evidence that the knife was used? No witness said so. They like the judge cannot give forensic evidence. The corroboration he is talking about would have been given by a Medical Doctor not him or any other witness.
My conclusion is that there are several grounds of appeal and quite sustainable in law and should therefore be pursued.
Bathnna is a lawyer and writes from Abuja
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