By James Musa
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 is
the starting point of the decision.
On. page 76 the
judge said this as he proceeds to deliver his judgment. “ 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 “
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, “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” . Again no matter how stupid is the address of the counsel 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.
There is irresistible inference that this judge before evaluating the evidence has made up his mind or bias against the defence. He is expected to focus on the case of the prosecution as to proving his case beyond reasonable doubt and not a baseless critique of defence before even the evaluation.
He appears to me to be a religious bigot because in this matter it is the secular law that is applied i.e the Penal code of Northern Nigeria. Before he got to this he was on p. 76 sounding like a summon in a religious temple.
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 it 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 from 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.
On page 82. The statement of the principles was wrong and the case cited on p. 83
The reference to the provisions of the constitution 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 dead body, there were witnesses before his death, 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 i.e a medical practitioner. Not a driver, a launderer, a watchman not even the accused. It needs expert evidence. This in my opinion is a ground for appeal.
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 judgment but at most he had injury on his finger sustained in his absence. So is it a bite, shisha or knife who is in apposition to distinguish the three? (Forensic)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? non except what the judge thinks. 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.
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 but live eye witness 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.
James Musa, a legal
practitioner, wrote in from Abuja
Source: LEADERSHIP NEWSPAPER
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