DARE KADA V. THE STATE

• Pages: 592-617

592



NIGERIAN SUPREME COURT CASES

[1991] 2 N.S.C.C.

The appellants are entitled to costs both in the Court of Appeal and in this court

which award is assessed as N500.00 and N1,000.00 respectively against the

respondents. Costs in the High Court shall abide by the retrial.

NWOKEDI, J.S.C.:

I had a preview of the judgment just delivered by my learned

brother,

Olatawura, J.S.C.

I agree with his reasoning and conclusions. I am also

of the view that the plaintiffs/respondents be non-suited. I make the same orders

as he has made.

Appeal allowed.



1

DARE KADA V. THE STATE

1

DARE KADA



APPELLANT

V.

THE STATE



RESPONDENT



2

APPEAL NO.22/1990.

SUPREME COURT OF NIGERIA

UWAIS,



Ag. C.J.N;

KAWU,



J.S.C.

WALT,



J.S.C.

0 LATAWU RA ,



J.S.C.

NWOKEDI,



J.S.C.

1st November, 1991.

Appeals -

Trial Court drawing wrong conchtsion from proved facts - Role of appellate Court

thereof - Issues raised for the first time at the appellate Court - How treated.

Criminal Law and Procedure

Culpable homicide - Effect of provocation thereto - What

the prosecution must prove on a charge of culpable homicide - Identification of the

body of a deceased in a homicide case - Reasons for - Failure to call as a witness a

person who identified a deceased to a medical officer who performed an autopsy - Effect

of - When may a court convict for a lesser offence.

Evidence -

Conflict and contradictions in the evidence of witnesses - Effect of - Unreliable

medical evidence - How treated -Hearsay evidence - Instances of - Failure of

prosecution to prove a criminal case beyond reasonable doubt - Effect of

Legal Practitioner -

Failure of counsel to diligently prosecute a case - condemnation of

ISSUE:

1.

What is the effect of failure to prove the identity of the deceased and the cause

of death in a case of culpable homicide punishable with death?

2.

What must the prosecution prove on a charge of culpable homicide punisable

with death and what is the effect of its failure so to do?

2

3

3

4

4

5

DARE KADA V. THE STATE



593

FACTS:

The appellant was tried in the High Court of justice, Minna for culpable homicide

punishable with death under section 221(b) of the Penal Code. He pleaded not

5 guilty. The prosecution called nine witnesses, while the appellant gave evidence

for himself and called one other witness. The prosecution's case was that the

appellant struck the deceased with

a

cutlass on the head, as a result of which the

deceased suffered a cut on his head and bled profusely. None of the witnesses

called by the prosecution proved that the deceased died on the scene of the

incident or at any hospital. The evidence of the prosecution witnesses as to when

10 the deceased died was contradictory. The Doctor (P.W.9) who performed autopsy

on the deceased could not mention by whom the corpse was identified to him. The

deceased put up the defences of provocation and self-defence. The learned trial

judge after reviewing the evidence adduced by both parties found the appellant

guilty as charged and sentenced him to death.

Dissatisfied with the judgment of the trial Court, the appellant appealed to the

Court of Appeal, Kaduna Division. The appeal was dismissed.

The appellant further appealed to the Supreme Court on the grounds

inter alia,

that the prosecution has failed to prove its case beyond all reasonable doubt.

HELD :

1.

Where an accused person is being tried for a capital offence like culpable

homicide, it is a condition precedent that the connection between the act of

the accused causing the death of the deceased and the death caused thereby,

must be established beyond reasonable doubt. It may not necessarily be

immediate, but it is indispensable that it must be so connected with the act of

violence of the accused by either direct evidence or such cogent and

irresistible circumstantial evidence. Where the nature of the connection

between the act and the death is in itself obscure, then the condition is not

fulfilled and the accused is entitled to be discharged.

In this Case, the consideration of the issue of provocation vis-a-vis the charge

under section 221 (b) of the Penal Code is not necessary since the identity of

the deceased and the cause of death have not been proved. It was therefore

wrong of and a misdirection by the learned trial judge to have concluded that

35





it was the injury caused to the deceased by the appellant that caused



his death.

(Seep. 600 lines 11-

25).

2.

Under the Penal Code, Cap 84, where the death of a human being is in issue

before a Court of trial, the prosecution's duty is to prove the following:-

40





1. that the death of a human being has actually taken place.

2. that such death was caused by the person being accused.

3.

that the act was done with the intention of causing such bodily injury

as:-

45



probable and not the likely consequence of his act; or

(i)

the accused knew or had reason to know that death would be

(ii)

that the accused knew or had reason to know that death would

be the probable and not only the likely consequence of any bodily

injury which the act was intended to cause.

(See p.598, lines 27 -

39).

50

3. Where a trial Court has drawn wrong conclusion from accepted or proved facts

which facts do not prove the prosecution's Case, the Court of Appeal has a

15

20

25

30