ISA KASSIM V STATE


READ FULL JUDGEMENT


IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, 30TH JUNE, 2017.


APPEAL NO: SC.361/2015

CITATION: SC (2017) 6 LLIR 1

Before Their Lordships

CLARA BATA OGUNBIYI, J.S.C.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

EJEMBI EKO, J.S.C.

PAUL ADAMU GALINJE, J.S.C.

SIDI DAUDA BAGE, J.S.C.


BETWEEN

ISA KASSIM

(APPELLANTS)

AND

THE STATE

RESPONDENTS


CASE SUMMARY

The appellant was tried and convicted for culpable homicide punishable with death under Section 221 of the Penal Code Law of Kano State. Among the pieces of evidence on which the trial High Court of Kano State relied on to sustain his conviction and sentence are Exhibits 1, the Medical Report and Exhibits 2 & 3 respectively the appellants extra judicial statements which are confessional in nature. His conviction and sentence were affirmed by the Court of Appeal; hence this further appeal.

For this appeal, the appellant through his counsel, Wilson O. Diriwari, Esq., formulated one issue for the determination of the appeal that is:-

“Whether the learned Justices of the Court below were right to place reliance on the inadmissible evidence to affirm the Appellant’s conviction and sentence, notwithstanding the failure by the Respondent to prove the guilt of the appellant beyond reasonable doubt with cogent, credible and compelling evidence?” (Raised from ground 1, 2 & 3).

For convenience, the respondent’s counsel, Sanusi Salisu Ali, Esq., broke the single issue formulated by the appellant into two effective and active components, namely:

“i. Whether Exhibits 1, 2, & 3 are inadmissible in law for failing to satisfy the requirements and conditions for their admissibility evidence under the relevant provisions of the Evidence Act, 2011; and

ii. Whether respondent has proved the guilt of the Appellant beyond reasonable doubt with cogent, credible and compelling evidence required by law?”

I shall, and do hereby, adopt the two Issues formulated by the respondent.

The accused person stabbed one Akaraja, following a scuffle between them, which, on the evidence, was started by the accused, by first hitting the deceassed with a cable twice on his head. He was also the owner of the knife, with which he stabbed the deceased. There was no evidence that the deceased was armed, nor that the accused was in fear for his life.

In accused own testinomy, he testified in chief in the following words; “Akaraja insisted that he must enter the house and fetch water. I prevented him (Akaraja) from entering the house and I hit him with a cable twice and he snatched the cable from me and also hit me twice. He then held my gown by the neck and I pleaded with him to leave me alone but he refused. There was nobody at the scene to separate us. When I tried to free myself from Akaraja but failed, I remembered I had a knife with me. I brought out the knife and showed it to Akaraja warning him to leave me alone. When Akaraja refused to release me, I stabbed him with the knife once at his back. Akaraja release me and sat down.”

The appellant maintained this stance in Exhibits 2 & 3. He never lost his senses throughout, according to his evidence under cross-examination. That eliminates provocation and establishes that he knew what he was doing.

I notice also that both the deceased and the appellant were watchmen at Alhaji Yahaya’s house. The portion of evidence I reproduced earlier suggests that the appellant was the aggressor. He was preventing the deceased from entering the house to fetch water. He hit the deceased twice with the cable. The deceased seized the cable from him and hit him twice with it. The appellant further testified that the deceased, then held his “gown by the neck”. He pleaded with the deceased to leave him, and the deceased failed to release him, he showed him the knife he had and thereafter stabbed the deceased at the back. It is difficult for me to make out a plea of self-defence out of this evidence. There was no immediate threat or danger to his life to warrant his resort to the knife and the stabbing.

There was no eye witness, except the PW.1, the stabbing having taken place before some of the other people came into the scene. The PW.2, Alhaji Yahaya’s driver, was on hand immediately. The deceased was rushed to Abdullahi Wase Hospital, Nassarawa, where he was confirmed dead. Exhibit 1 confirmed the stab wound as “an open laceration 4cm x 2cm”, and that it caused “(Rt) haemotherax in px with hypovolemic shock following a penetrating stab wound on the back (T5 level)”. Exhibit 1 further affirms that the condition of the deceased “deteriorated suddenly” despite “cardio pulmonary resuscitation” instituted by four (4) doctors, and all efforts at resuscitating the deceased “all proved abortive” and the deceased died at 6.30 p.m. that same day.

The PW.1 did not know what caused the scuffle between the appellant and the deceased. He only saw the appellant stab the deceased “around the deceased’s shoulders at his back”. The description of the position of the stab wound is consistent with the description in Exhibit 1 and the evidence of the DW.1, the appellant. From the chain of events, and it was rapid too, the deceased died as a result of the stab wound on the shoulder area at the back. The deceased was stabbed at about 4.30 pm. on 15th January, 2009 according to PW.1 and PW.2. The deceased was rushed to the hospital immediately. He died at about 6.30p.m that day, just about 2 hours after the attack by the deceased.

The Supreme Court, acknowledged, inter alia, that: “Even without medical expert evidence it can be inferred that the cause of death of the deceased was the direct result of the unlawful act of the appellant that is the stabbing of the deceased by the appellant. No other reasonable cause has been suggested to be the cause of death of the deceased. There was no intervening period within the short time between the stabbing and the death of the deceased that was just about two hours in between. I have no difficulty inferring that the act of the appellant caused the death of the deceased. This inference is reasonable as can be seen from BAKORI v. THE STATE (1980) 8 – 11 SC 81; REX v. NWOKOCHA 12 WACA 453.

The main plank of the appeal was that Ex. 1, the medical report, and Ex. 2 and 3 the extra judicial statements of the accused, were wrongly admitted in evidence, since being public documents they were not certified as required under the evidence. Ex. 1, 2 and 3 were original documents, and the main question the court had to deal with was whether a primary public document, as against a secondary public document, must be certfied to be admissible in evidence.

The Supreme Court held;

Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with Adekeye, JSC, in GODWILL & TRUST INVESTMENT LIMITED v. WITT & BUSH LIMITED (2011) 8 NWLR 500; (2011) LPELR – 1333 (SC), the essence of demanding for a certified true copy of a public document is the assurance of the authenticity of the document vis-a-vis the original. And so why go for that assurance in the certified true copy vis-a-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the Court below that where the original copy of a document is available, it is admissible without the requirement of certification. See DAGGASH v. BULAMA (2004) 14 NWLR (pt. 892) 144.