UMAR v. STATE (2021)

UMAR v. STATE

(2021)LCN/15789(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Wednesday, March 24, 2021

CA/S/117C/2020

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ABUBAKAR UMAR APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE POWERS OF THE SUPREME COURT WITH RESPECT TO THE DETERMINATION OF APPEALS

In determining and resolving the question under this issue, it is important to begin by remarking that the powers of this Court with respect to the determination of appeals before it are by way of a re-hearing on printed records of appeal as compiled and transmitted by the Appellant or some times by a Respondent as the circumstances of any particular case may dictate. This re–hearing involves the re–examining of the whole evidence, both oral and documentary tendered before the trial Court, i.e. an examination of the case in its entirety or any specific or particular aspects of it as may have been sought by the Appellant and allowed by the rules of practice and procedure in appellate adjudication. This Court is entitled to evaluate the evidence and may reject findings, inferences or conclusions of the trial Court from facts which do not follow from the evidence or may be regarded as perverse. See JADESIMI V. OKOTIE EBOH (1986) 1 NWLR (PT. 16) 264 SC and BABALOLA V. STATE (1989) 4 NWLR (PT. 115) 264 SC. Also according to other decisions of this Court in NDIC V. SBN PLC. (2003) 1 NWLR (PT. 801) 311, JUMBO V. BRYANKO LTD. (1995) 6 NWLR (PT. 403) 545 at 547 and NGIGE V. OBI (2006) 14 NWLR (PT. 999) 1, an appeal is generally regarded as the continuation of an original suit or action rather than as an inception of a new action. It should be a complaint against the decision of a trial Court. Thus, in the absence of such a decision on a point, there cannot be an appeal against what has not been decided against a party. PER GUMEL, J.C.A.

THE POSITION OF LAW WHERE AN ACCUSED PERSON IS DEFENDED BY COUNSEL DURING A TRIAL

According to the decision in IHUEBUKA V. THE STATE (2000) 4 SC 231, where an accused person is defended by counsel during a trial, it is the duty of the counsel to conduct the defence properly to the best of his ability. That notwithstanding, in appropriate situations as in the instant appeal, a trial Court is duty bound to examine and consider any possible defences that could avail an accused person from the totality of the evidence adduced at the trial. Flowing from this settled principle of law, if a confessional statement of an accused person was admitted in evidence, it becomes part of the evidence at his trial. Therefore, the Court has a duty and obligation to consider such evidence if it contains any defence in favour of the accused. With respect to the facts and circumstances in the instant appeal, the learned trial judge did what was expected of him when, after finding that it was the Appellant who caused the death of the deceased and liable to be found guilty of the offence as charged, he remarked as follows:-
“Having found as above I will proceed to consider the defences possible or available to the accused person on the facts no matter how stupid, improbable or unfounded they may be appear.”
(See lines 27 to 29 at page 46 of the record of appeal). PER GUMEL, J.C.A.

The position of the law according to the decision of the Supreme Court in OHIAERI & ANOR V. ADINNU AKABEZE & ORS. (1992) 2 NWLR (PT. 221) 1 at 23 A – B per Akpata, JSC, is that a party should not be seen to put forward in the Court of Appeal, a case different from what he canvassed in the trial Court. See also ABEKE V. ODUNSI & ANOR (2013) LPELR – 2064 (SC), EZOMO V. ATT. GEN; BENDEL STATE (1986) 4 NWLR (PT. 36) 448 at 462 and KAYODE V. ODUTOLA (2001) 11 NWLR (PT. 725) 659. PER GUMEL, J.C.A.

THE DEFENCE OF PROVOCATION

The law provides for the defence of provocation in recognition of human frailty or infirmity and for mercy and compassion. Under the Penal Code of Kebbi State, and all the criminal laws in this Country, provocation is not a complete or total defence to criminal liability. In homicide cases the effect of provocation where it is found credible, established and upheld is to mitigate the punishment from culpable homicide punishable with death to culpable homicide not punishable with death under Section 222 (1) of the Penal Code Law of Kebbi State.

In a number of decided cases it has been held that for the defence of provocation to avail an accused person, there must be a provocative act offered to him by the victim of his alleged offence and it was grave and sudden as to make the accused to lose his power of self-control. The harm made by the accused on his victim as a result of the provocation must have been done instantly before its effect would have subsided and it was proportionate in the entire circumstance. See ISAAC STEPHEN V. THE STATE (1986) 12 SC 450 at 498 – 499, EDOKO V. THE STATE (2015) ALL FWLR (PT. 772) 1728 and CHUKWU V. STATE (1992) 4 NWLR (PT. 217) 255 at 270. PER GUMEL, J.C.A.

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kebbi State High Court, Birnin Kebbi Division (Lower Court or Trial Court) in charge number KB/HC/4C/2006 delivered on 24th July, 2006. Coram Judice, Ambursa J. (as he then was).

The Appellant as the accused person was arraigned on 9th March, 2006 on a one count charge to wit:
“That you Abubakar Umar (M) on or about the 6th day of March, 2005 at Mahuta Village via Geza in Dandi Local Government Council within the jurisdiction of the Kebbi State High Court of Justice, did commit culpable homicide punishable with death in that you caused the death of one Hauwa’u Muhammed, by doing an act to wit: beating and stabbing her on the head, neck and near her eyes, with a stick and knife respectively, with knowledge that death would be the probable consequence of your act and thereby committed an offence punishable under Section 221 (b) of the Penal Code.”

Upon arraignment, the Appellant pleaded not guilty and the matter proceeded to trial. At the trial, the prosecution called and relied on the evidence of 6 witnesses and Exhibits A and A1 to prove the guilt of the Appellant. At the end of the evidence of the prosecution witnesses on 22nd June, 2006, learned counsel Mr. Ismaila, who conducted the defence of the Appellant, told the lower Court that he was not calling any evidence but would be resting the defence of the Appellant on the evidence of the prosecution witnesses. Thereafter, respective learned counsel addressed the Court and the matter was adjourned for judgment.

In its judgment, the lower Court observed and held that:-
In the whole I am satisfied that the evidence adduced by the prosecution remained un-contradicted and unchallenged, positive and direct and the Court will fail in its duty if it fails to convict on such evidence. See Nasamu V The State (1969) F.S.C; I further observed that the prosecution witnesses gave direct evidence in support of the charge framed and I found them to be witnesses of truth and accept their testimony. The accused in my view had no reasonable excuse in killing the deceased. It is sad that such a young person could callously kill his own wife in a cruel and brutal manner without any remorse whatsoever. The act of the accused is unusual and cruel and is sufficient to warrant a conviction.
In the result, I find the accused person guilty for the offence of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code and convict him accordingly.”
(See lines 1 to 3 at page 50 of Record of Appeal)

Just before that, the lower Court remarked thus:-
“In the instant case the accused used excessive force disproportionate to the utterances uttered by the deceased. In the circumstances and the authority in Ekpenyong V State (supra) the defence of provocation will not avail the accused person and I so hold.
In consideration of the fact of this case and the evidence adduced, it is my view that no other defence is disclosed or reflected and this Court has no obligation or duty to consider such a defence which is not disclosed or reflected by the evidence before it. See Shalla v State (supra) at 419 paras F – H.”
(see lines 20 – 27 page 49 Record of Appel)

The Appellant was dissatisfied with the judgment of the lower Court, and after an order for extension of time to appeal was granted to him by this Court on 13th October, 2020, he appealed to this Court. The notice of appeal was filed on 19th October, 2020, within the time ordered by this Court. The notice of appeal contains three grounds of appeal with very copious particulars. The grounds of appeal are reproduced hereunder, shorn of their particulars:
“Ground One:
The learned trial judge erred in law when he held without more that; “In the consideration of the aggration (sic) on the deceased and vital areas of the body hit it can safely be concluded that the aim of the accused was to kill the deceased”.
Ground Two:
The learned trial judge erred in law when he concluded in his judgment that; “In the circumstances and on the authority in Ekpenyong v State (supra) the defence of provocation will not avail the accused person and I so hold”.
Ground Three:
The learned trial judge erred in law when he held that, “It is my view that the force used by the accused in repelling the provocation, which were words uttered by the deceased, is certainly disproportionate, even in the most primitive society”. To argue the appeal, learned counsel to the Appellant Mr. O. S. Mbamalu filed the Appellant’s brief of argument on 18th November, 2020. On behalf of the Respondent, learned counsel Mr. Kabir Aliyu filed the Respondent’s brief on 8th December, 2020. From the three grounds of appeal, Mr. Mbamalu, of counsel formulated two issues for determination in this appeal. They are:-
“1. Whether given the entire circumstances of this case the trial Court was right in holding that the prosecution had proved the offence of culpable homicide punishable with death against the Appellant (Ground 1).
2. Whether the trial Court was right when it held that in the circumstances of this case the defence of provocation was not available to the Appellant (Ground 2 and 3)”.

At page 3 paragraph 2.2 of the Respondent’s brief of argument, learned counsel to the Respondent adopted the two issues for determination as formulated on behalf of the Appellant.

Before considering the various arguments and submissions of respective learned counsel, I believe that it will suffice to set out some of the key and material facts that gave rise to this matter. The Appellant was the husband of the deceased, while being married to him he permitted her to visit and stay with her parents in line with the prevailing custom and tradition of their community. On the fateful day, the Appellant was returning home from the bush, having been out rearing cattle. He passed through the family house of his deceased wife. He met her and complained to her that he was very thirsty and needed water to drink. He requested the deceased to give him some drinking water. The deceased refused to give the water to him and was said to have told him that “I will not bring water to any bastard. “

In consequence of what just transpired the Appellant claimed to have been so enraged that he used the stick in his hand to hit the deceased on the neck, hand and near her eyes, the deceased fell down while the Appellant ran away until he was trailed by the family of the deceased, a policeman and the Village Head. He was traced and tracked until he was found hiding in a neighbouring community. He was arrested the next day after the commission of the alleged crime and brought to the scene of the crime. The deceased was said to have finally died in the hands of her mother PW6 soon after the alleged beating and stabbing by the Appellant.

At the hearing of the appeal, respective learned counsel identified, adopted and relied on their filed and exchanged briefs of argument. Also, while learned counsel to the Appellant urged on the Court to allow the appeal and set aside the judgment of the lower Court, learned counsel to the Respondent urged that the appeal be dismissed and the judgment of the trial Court be affirmed.

Learned counsel to the Appellant Mr. Mbamalu argued issue one at pages 4 to 9 of the Appellant’s brief of argument. He referred to so many decided cases and statutory provisions on the presumption of innocence in favour of an accused person facing a criminal trial and the burden of proof of guilt of an accused person. Learned counsel reiterated and emphasised the well-known principle of law practice and adjudication that it is the duty of the prosecution in a criminal trial to prove the guilt of the accused person beyond reasonable doubt, though not beyond all shadows of doubt. The burden of proof of guilt, according to learned counsel Mr. Mbamalu, after referring to the cases of ALABI V. STATE (1993) 7 NWLR (PT. 307) 511 and SOLOLA V. THE STATE (2005) 5 SC (PT. 1) 135, is static and does not shift. Against the background of his introductory remarks, learned counsel submitted that a failure by the prosecution to discharge the burden of proof placed on it by the law would invariably lead to the acquittal of the accused person.

Further to the above opening remarks, Mr. Mbamalu, of counsel went on to set out the 3 constituent elements of the offence of culpable homicide punishable with death as provided under Section 221 (b) of the Penal Code and as explained by the Courts in a number of decided cases such as AGU V. STATE (2017) 10 NWLR (PT. 1573) 191 and AMADI V. STATE (1993) 8 NWLR (PT. 314) 644 at 663 – 664. Also, according to learned counsel, Courts are enjoined to only act on cogent, credible and well established evidential facts and under no circumstance the decision of Courts should be anchored on suspicions or speculations.

In addition to the above well-established principles, learned counsel, from paragraph 4.06 to 4.14 at pages 5 to 9 mounted a very relentless attack on some of the critical and crucial findings of the lower Court, particularly with respect to its evaluation of the evidence before it. For example, learned counsel maintained that the ultimate finding of the lower Court that it can safely be concluded that the aim of the Appellant was to kill the deceased and no more was not supported by any credible evidence. While also reacting to another finding by the lower Court that the Appellant used a knife to inflict injuries on the deceased, Mr. Mbamalu, of counsel argued that it was deeply erroneous to so find because there was no iota of evidence upon which such a finding can be made in the absence of any eye witness account of the events and circumstances leading to the death of the deceased. While, referring to the evidence of PW6, the mother of the deceased, learned counsel, after conceding her to be the only eye witness, submitted that no such evidence was adduced at the trial of the Appellant at all.

To buttress and justify his strong challenge to some of the crucial findings of the lower Court, learned counsel reproduced a part of the recorded evidence of PW6 as contained at page 34 of the record of appeal to illustrate and point out that there was no mention of the use of a knife in the entire circumstances of the instant appeal, save for the erroneous finding of the learned trial judge. According to the learned counsel the difference between a stick and a knife is huge and substantial because the injuries that could result from the use of each is as diverse as the items themselves. He added that the lower Court had no justification to make a finding that was baseless and totally lacking any foundation.

In conclusion, learned counsel maintained that:-
Our submission above is reinforced by the fact that the finding of fact by the trial Court that the Appellant cut the deceased with a knife is to a large extent irreconcilable and unsupported by the evidence of PW6 who was the only eye witness tendered by the prosecution. It is therefore safe to conclude that the trial Court failed to adequately evaluate the evidence placed before him as required by law. This failure invariably led to the skewed conclusion as to the intention of the Appellant when he hit his wife with a stick. The error of the trial Court as to the intention of the Appellant began with the introduction and consideration of facts not placed before him and this fatal error, this Court had observed, would ultimately lead to an incapacity to arrive at the right conclusion, “for anything short of actual review and proper detailed evaluation of the evidence placed before the Court will leave the trial judge much incapacitated to determine the point in controversy that rest wholly on the evidence adduced at the trial”. See CCB NIQ PIC V OKPALA {1997} 8 NWLR (PT 518) 673 @ 693.”

In his response, learned counsel to the Respondent Mr. Kabir Aliyu, also began by recollecting some of those key principles governing the trial of criminal cases before our Courts. He cited a number of cases to illustrate the duties and responsibilities of the prosecution in criminal trials, what was always expected and required from it to achieve a safe and proper conviction. This much was pointed out in paragraphs 3.8. to 3.11 at pages 6 to 9 of the Respondent’s brief of argument.

Further to the above opening remarks and explanations, Mr. Aliyu, of counsel proceeded to set out the essential legal elements in the crime of culpable homicide punishable with death as provided and defined under Section 221 (b) of the Penal Code. Gladly enough, Mr. Aliyu, of counsel did not appear to say anything more than what was already reiterated in the submissions of learned counsel to the Appellant. Against the backdrop of this, learned counsel Mr. Aliyu, emphatically maintained that the prosecution fully adduced cogent and credible evidence at the trial of the Appellant to prove each of the 3 essential constituent elements of the offence he was charged with.

To illustrate and re–inforce the above submissions learned counsel referred to and quoted from the evidence of PW1, PW2, PW4, PW5 and PW6 to show that the finding of the lower Court that there was a significant proof of the initial element of the offence charged, i.e. the death of a human being. Learned counsel emphasised the aspects of the evidence of these witnesses who saw and fully identified the dead body of one Hauwa’u Muhammed the deceased wife of the Appellant who also performed her funeral and burial rites. Added to this identification of the victim of the crime alleged against the Appellant, learned counsel referred to the extra – judicial statement of the Appellant in Exhibit A, where he confessed to have killed her.

On the more challenging and crucial aspect of the offence that it was the act of the accused that caused the death of the deceased; learned counsel quoted from the evidence of PW5 as recorded in lines 8 – 18 at page 25 of the record of appeal and PW6 at page 34 lines 15 – 18. According to learned counsel, this evidence of these witnesses was unchallenged and uncontradicted inspite of rigorous cross examination of the witnesses and therefore the lower Court was fully entitled to rely on it to find that it was the Appellant who killed the deceased. Also because learned counsel Mr. Aliyu, believed that the statements of the Appellant in Exhibits A and A1 were sufficiently confessional, he maintained that there was nothing wrong in the crucial finding of the lower Court that it was the Appellant who killed the deceased. On whether the Appellant knew or had reason to know that the death of the deceased would be the probable and not only a likely consequence of his act, learned counsel quoted from the judgment of the lower Court on this finding and maintained that it was well founded on the evidence before it and also as supported by decided cases such as SANI V. STATE (2013) LPELR – 20382 (CA) per Mbaba, JCA relying on the decision of the Supreme Court in MICHAEL V. STATE (2008) 13 NWLR (PT. 1104) 361.

All the above can be seen to have been said ex abundante cautela. In paragraph 3.18 at page 12 of the Respondent’s brief, learned counsel to the Respondent Mr. Aliyu pointed out that it was not necessary to exert more effort to support the findings of the lower Court that all the essential elements of the offence of culpable homicide under Section 221 (b) have been fully established as required by law against the Appellant because that much was fully accepted by learned counsel Mr. Ismail, who appeared for him at the trial. According to Mr. Aliyu, of counsel, there was no point in learned counsel to the Appellant approbating and reprobating. He urged on this Court to disapprove this approach of learned counsel to the Appellant and to also discountenance all his submissions tending to suggest that the prosecution failed to establish its case against the Appellant. Learned counsel further urged on the Court to resolve this issue against the Appellant.

In determining and resolving the question under this issue, it is important to begin by remarking that the powers of this Court with respect to the determination of appeals before it are by way of a re-hearing on printed records of appeal as compiled and transmitted by the Appellant or some times by a Respondent as the circumstances of any particular case may dictate. This re–hearing involves the re–examining of the whole evidence, both oral and documentary tendered before the trial Court, i.e. an examination of the case in its entirety or any specific or particular aspects of it as may have been sought by the Appellant and allowed by the rules of practice and procedure in appellate adjudication. This Court is entitled to evaluate the evidence and may reject findings, inferences or conclusions of the trial Court from facts which do not follow from the evidence or may be regarded as perverse. See JADESIMI V. OKOTIE EBOH (1986) 1 NWLR (PT. 16) 264 SC and BABALOLA V. STATE (1989) 4 NWLR (PT. 115) 264 SC. Also according to other decisions of this Court in NDIC V. SBN PLC. (2003) 1 NWLR (PT. 801) 311, JUMBO V. BRYANKO LTD. (1995) 6 NWLR (PT. 403) 545 at 547 and NGIGE V. OBI (2006) 14 NWLR (PT. 999) 1, an appeal is generally regarded as the continuation of an original suit or action rather than as an inception of a new action. It should be a complaint against the decision of a trial Court. Thus, in the absence of such a decision on a point, there cannot be an appeal against what has not been decided against a party.

With respect to the facts and circumstances in this appeal, the Appellant as the accused person was represented by learned counsel Mr. Ismail at the trial. Learned counsel acted on his behalf throughout the trial. The proceedings of the lower Court were at every stage of the trial interpreted to the appellant into the language he understood. He never indicated any interest to disapprove or reject the services of learned counsel Mr. Ismaila. In the course of the proceedings of the lower Court held on 22nd June, 2006 learned counsel Mr. Ismaila was put on record as saying;
“We shall be resting our case on the evidence of the prosecution in our defence, in view of this we shall be praying the Court for a date to address the Court.”
(See lines 14 – 16 at page 35 of the record of appeal).

Against the backdrop of the above request of learned counsel Mr. Ismaila, the lower Court adjourned to 29th June, 2006 for counsel to the parties to address it. As part of his address, learned counsel Mr. Ismaila told the Court that he was not ready or prepared to waste any more time. At the risk of being frolix, but in the greater interest of clarity, I will reproduce and copy the entire address of Mr. Ismaila, of counsel on to the pages of this judgment thus:-
“We will not be wasting the time of this Hon. Court to contesting whether the prosecution have proved their case beyond reasonable doubt or not. It is now that the accused person can be convicted solely on his confessional statement. We concede that Exhibits A and A1 are confessional statements. However, we shall be contending that the defence of provocation will and should avail the accused person. Section 38 and 222 Penal Code refered.
From the circumstances of this case, the accused, a 22 year old man, newly married to the deceased who was sick at the time he returned from rearing, met his wife and asked her for water to drink from her nearby parent’s house but she refused and he got provoked. This being as it is, the defence of provocation will not avail the accused person since the words used by the deceased in refusing the water were not known to the Court. But the accused had informed PW5 at the earliest stage of the words used by the deceased in refusing his request. PW5 said the deceased told the accused in reply to his request for water that “she cannot bring water to any bastard” the question now is can words constitute provocation to mitigate punishment. See Dan Shalla Vs. State (Supra) 53.
The accused person is a Fulani man who lived all his life in the bush without knowledge that a wife should not be beaten with a stick. This is in addition that he was sick at that time. We urge this Court to hold that the words administered to the accused person by the deceased were provocative.
We also rely on Shande V. State (2005) 22 NSCQCR (Pt.2) 756 at 767 – 768 ratio 3. We submit that the accused acted suddenly without time for passion to cool down.
We also submit that the accused lost his cause of reasoning and reacted the way he did. In view of the foregoing submissions, we pray the Court to consider the situation in which the accused found himself at the material time he committed the offence and mitigate the offence on the defence of provocation”.
(See lines 1 – 29 at page 38 and lines 1 – 5 at page 59 of the record of appeal).

As part of its judgment, the lower Court alluded and responded to the seeming concession by learned counsel Mr. Ismaila at page 43 of the record of appeal. In the course of its judgment the lower Court remarked as follows:-
“Learned counsel for the accused Mr. P. Ismaila in his address conceded that the prosecution have proved the case against the accused beyond reasonable doubt in view of the confessional statement of the accused in exhibit A. Counsel however argued that the defence of provocation is available to the accused and referred to Section 38 and 222 of the Penal Code”.

Inspite of the above remarks, the lower Court went on to point out that notwithstanding the seeming throwing in of the towel by learned counsel Mr. Ismaila, it still needed to guide itself by keeping in mind that in criminal trials the onus is on the prosecution to prove the guilt of an accused person beyond reasonable doubt. Having so guided itself the Court went on to add thus:-
“It is evident and as conceded by learned counsel to the accused that the prosecution have proved beyond reasonable doubt that the accused person caused the death of Hauwa’u Muhamed by beating her with a stick on a region of the head with the knowledge that death would be the probable end not only a likely consequence of the act. It is evident as per the testimony of PW6 Aishatu Muhd, PW5 Mahuza Dangaladima, PW4 Sgt. Yanusa Zagi, PW2 Mohd Kwatte and PW1 Mohd Umaru that the accused beat the deceased and caused serious injuries on the region of her head and neck which resulted to her death on the spot. PW6 narrated how she saw the accused beat the deceased with a stick and when the deceased fell down, the accused used a knife and cut her on the face. These injuries were equally observed by virtually all the prosecution witnesses. It is evident that the accused died on the spot and immediately after the attack on her by the accused. In consideration of the aggression on the deceased and the vital areas of the body hit, it can safely be concluded that the aim of the accused was to kill the deceased and no more”.
(See lines 18 – 27 at page 44 and lines 1 – 6 at page 45 of the record of appeal).

I have carefully read and considered the entire proceedings at the trial of the Appellant before the lower Court and I wish to point out that the Appellant, while fully represented by counsel, initially objected to the admissibility of the extra judicial statements of the Appellant to the police. The statement was sought to be tendered in evidence through PW3. Mr. Ismaila was recorded to have objected to the admissibility of the statement because according to him it was induced and not voluntarily made. His objection was recorded at page 22 of the record of appeal.

In order to determine the voluntariness or otherwise of the extra – judicial statements of the Appellant, the lower Court started a trial within a trial (TWT) on 11th May, 2006. At the end of the evidence of the first witness of the prosecution in the TWT, learned counsel Mr. Ismaila cross examined him at page 29 of the record of appeal and soon thereafter, even before the prosecution called its next witness out of the 3 it sought to call in the TWT, learned counsel Mr. Ismaila withdrew his objection and the statements of the Appellant to the police in Hausa language and its translated English language version were admitted in evidence and respectively marked as Exhibits A and A1.

Once, as in the instant appeal, there has been no formal complaint before this Court by the Appellant with respect to the correctness of the record of appeal, there is an irrebuttable presumption that the record of appeal is correct. In other words, and in a plain language, the Appellate Court, counsel and parties before it are bound by the contents of the record of appeal. It is the bundle of documents that the Court relies on to keep itself abreast of what transpired in the lower Court and on what it would solely rely to determine an appeal. See AUDU V. ATT. GEN, FEDERATION (2012) LPELR – 15527 (SC) 16 – 17 D – A.

According to the decision in IHUEBUKA V. THE STATE (2000) 4 SC 231, where an accused person is defended by counsel during a trial, it is the duty of the counsel to conduct the defence properly to the best of his ability. That notwithstanding, in appropriate situations as in the instant appeal, a trial Court is duty bound to examine and consider any possible defences that could avail an accused person from the totality of the evidence adduced at the trial. Flowing from this settled principle of law, if a confessional statement of an accused person was admitted in evidence, it becomes part of the evidence at his trial. Therefore, the Court has a duty and obligation to consider such evidence if it contains any defence in favour of the accused. With respect to the facts and circumstances in the instant appeal, the learned trial judge did what was expected of him when, after finding that it was the Appellant who caused the death of the deceased and liable to be found guilty of the offence as charged, he remarked as follows:-
“Having found as above I will proceed to consider the defences possible or available to the accused person on the facts no matter how stupid, improbable or unfounded they may be appear.”
(See lines 27 to 29 at page 46 of the record of appeal). To the extent that both the lower Court and learned counsel Mr. Ismaila had, in my view done all that was expected of them at the trial, it remained sacrosanct and learned counsel Mr. Mbamalu for the Appellant cannot and should not be seen to be complaining in this appeal that the prosecution failed to prove all the essential elements of the offence charged against the Appellant. It amounts to approbating and reprobating for learned counsel Mr. Mbamalu for the Appellant to seek to do what he set out to do in this appeal, particularly with respect to the first issue for determination. The position of the law according to the decision of the Supreme Court in OHIAERI & ANOR V. ADINNU AKABEZE & ORS. (1992) 2 NWLR (PT. 221) 1 at 23 A – B per Akpata, JSC, is that a party should not be seen to put forward in the Court of Appeal, a case different from what he canvassed in the trial Court. See also ABEKE V. ODUNSI & ANOR (2013) LPELR – 2064 (SC), EZOMO V. ATT. GEN; BENDEL STATE (1986) 4 NWLR (PT. 36) 448 at 462 and KAYODE V. ODUTOLA (2001) 11 NWLR (PT. 725) 659.

After all said and done, and upon a consideration of the entire evidence adduced at the trial of the Appellant, I do not see any reasons that can be acceptable to interfere with the findings of the lower Court that the prosecution proved the guilt of the Appellant as required by law. It is either learned counsel Mr. Mbamalu failed to appreciate the law and the facts in the instant appeal or he totally misconceived the proceedings at the trial, or indeed the judgment of the lower Court. Without much ado, issue one is resolved against the Appellant.

In arguing the second issue for determination, learned counsel Mr. Mbamalu opened with an emphatic submission that the lower Court was wrong when it held that the defence of provocation was not available to the Appellant. He cited the case of EKPENYONG V. STATE (1993) 5 NWLR (PT. 395) 513 where the Supreme Court emphasised and applied the conditions which must be present and established for the defence of provocation to avail an accused person. Learned counsel further relied on the decisions in OLADIPUPO V. THE STATE (1993) 6 SCNJ 233 at 239, AFOSI V. THE STATE (2013) 13 NWLR (PT. 1371) 329 at 359 and SHANDE V. THE STATE (2005) 6 SCNJ 124 at 131.

While also relying on the combined effect of the provisions of Sections 38 and 222 of the Penal Code, Learned Counsel on behalf of the Appellant pointed out that a successful plea of the defence of provocation would reduce the offence of culpable homicide punishable by death to one not punishable by death. According to learned counsel, it is not a total or complete defence but one that mitigates punishment. Added to this, learned counsel referred to the cases of JAMES BIRUWA V. STATE (1985) (PT. 11) 167, GALADIMA V. THE STATE (2012) LPLER – 15530 (SC) and MUSA V. STATE (2009) FWLR (PT. 492) 1020 where the defence of provocation was defined to involve words and actions or some acts or series of acts done by the deceased to the accused which would cause in any reasonable person and actually caused in the accused, sudden and temporary loss of control rendering him or making him for a moment not to be the master of his mind.

With respect to the facts and circumstances in the instant appeal, Mr. Mbamalu, of counsel tried to explain that the lower Court found as a fact from the evidence placed before it by PW5 and Exhibit A that the deceased provoked the Appellant when she refused him water to quench his thirst and also in effect called him a bastard. It was also established beyond any speculation or per adventure that the deceased was lawfully and validly married to the Appellant, the marriage was also subsisting. Learned counsel observed that the lower Court considered and found the conduct of the deceased to be provocative and it was capable of depriving him of his power of self-control and could trigger in him a sudden desire to take action instantly. Mr. Mbamalu, of counsel said he failed to understand the reason why the lower Court went further to find that the instantaneous use of a stick by the Appellant to inflict injuries on the deceased could be found to be disproportionate to the provocative acts of the deceased.

According to learned counsel, the conclusion of the lower Court that the acts of the Appellant in inflicting injuries to the head and neck of the deceased instantly with the stick he was holding is unsupported by a careful consideration of the chain of events leading to the death of the deceased. Learned counsel reiterated the well-established facts of refusal of the deceased to give drinking water to her husband and the harsh verbal insult on him. He did his own evaluation of these facts and the context they happened as well as the entire circumstances in the instant appeal. He then added that the Appellant was returning home after a full day’s work rearing cattle in the bush. He was unwell, tired and thirsty. He passed through his wife’s family house and asked for some water to drink, the deceased not only refused to give him water but went on to call him a bastard. In the opinion of learned counsel, the Appellant, being a Fulani man could have fully lost his power of self control in the heat of passion without any time to cool down when he instantly hit the deceased with a stick that a Fulani man would ordinarily be carrying when he is rearing animals. Learned counsel added that the unbroken chain of actions between the provocation resulting from the verbal insult and the act of hitting the deceased with the stick he was holding was such that there was no time for passion to cool down on the part of the Appellant. He then maintained that the action of the Appellant was not disproportionate at all, having regards to all the facts and circumstances. He urged on the Court to so hold and resolve this issue in favour of the Appellant.

In his response, learned counsel Mr. Aliyu for the Respondent explained that the findings of the lower Court have been substantiated by credible, cogent and reliable evidence before it. He then pointed out that it is well established that an Appellate Court cannot disturb the evaluation of evidence by a trial Court if it was properly and satisfactorily made. Mr. Aliyu relied on the decisions in NKEBISI V. STATE (2010) 5 NCC 84 at 90 and ONWUBE V. NDUBA (1972) 3 SC 106 per Coker, JSC where the Appellate Courts were admonished not to be carried away by feeble attempts of counsel to encourage interfering with well-made out and credible findings of trial Courts on properly considered and well evaluated evidence.

After also citing and relying on the case of EKPENYONG V. STATE (supra), Mr. Aliyu, of counsel tried to narrow down this issue by pointing out that it was right for the lower Court to find that there were indeed provocative acts offered to the Appellant by the deceased; it was also sudden and enough for the Appellant to lose his power of self control and the reaction of the Appellant to the provocative acts of the deceased was instantaneous and there was no break in the chain of actions as to allow for the Appellant to cool down. Further to a consideration of these conditions, learned counsel argued that it was also correct for the lower Court to find that the hitting of the deceased 3 times on the head and neck with a stick was disproportionate in the circumstance. He urged on the Court to so hold and resolve this issue against the Appellant.

The law provides for the defence of provocation in recognition of human frailty or infirmity and for mercy and compassion. Under the Penal Code of Kebbi State, and all the criminal laws in this Country, provocation is not a complete or total defence to criminal liability. In homicide cases the effect of provocation where it is found credible, established and upheld is to mitigate the punishment from culpable homicide punishable with death to culpable homicide not punishable with death under Section 222 (1) of the Penal Code Law of Kebbi State.

In a number of decided cases it has been held that for the defence of provocation to avail an accused person, there must be a provocative act offered to him by the victim of his alleged offence and it was grave and sudden as to make the accused to lose his power of self-control. The harm made by the accused on his victim as a result of the provocation must have been done instantly before its effect would have subsided and it was proportionate in the entire circumstance. See ISAAC STEPHEN V. THE STATE (1986) 12 SC 450 at 498 – 499, EDOKO V. THE STATE (2015) ALL FWLR (PT. 772) 1728 and CHUKWU V. STATE (1992) 4 NWLR (PT. 217) 255 at 270. In the case of R. V. DUFFY (1949) 1 ALL ER 933 Lord Devlin, L. J. put it more graphically that the accused must have acted on the provocative act before reason regained dominion over the mind.

Since the decision of the Supreme Court in the cases of AKIBU V. OPALEYE & ANOR (1974) 11 SC 189 at 203, WOLUCHEM V. GUDI (1981) 5 SC 291 at 320 and ATANDA V. AJANI (1989) 4 NWLR (PT. 111) 511 at 524, and many other decisions of the apex Court and this Court decided on their guiding principles, the law has become well established and settled that the evaluation of relevant material evidence before the Court and the ascription of probative value to such evidence are the primary functions of trial Courts who saw, heard and assessed the demeanour or character of the witnesses while they testified. Where such Courts of trial, unquestionably evaluate the evidence and justifiably appraised the facts, it is not the business of the appellate Courts to substitute their own views for the views of the trial Courts.
In ODOFIN & ORS V. MOGAJI & ORS (1978) NSCC 275 at 277, the Supreme Court per Fatayi – Williams, JSC (as he then was) stated the procedure to be followed in the evaluation of evidence in the following words:-
“——the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of facts was given in evidence by one party —– before a Court in which both parties appear is preferable to another set of facts given in evidence by another party, the trial judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide —– which weighs more, accept it in preference to the other, and then apply the appropriate law to it.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Also in the course of evaluation of evidence a trial Court is expected to express its impression about the truthfulness or otherwise of witnesses.

With respect to the facts and circumstances in the instant appeal, the Appellant gave a detailed account of his encounter with the deceased, his wife on the 6th March, 2005 in his extra – judicial statements in Exhibits A and A1. It was at a place near her family home. It was in the evening. He was returning home from the bush after rearing cattle all day. He was tired, thirsty and unwell. He pleaded with his wife, the deceased to help him with some water to drink from her family home. She refused to oblige him. According to the evidence of PW5, she also told him that she was not going to give drinking water to a bastard. This conduct of the deceased, no doubt, was provocative, to any reasonable person, including of a Fulani man in the position of the Appellant in the community he belonged to. He was back from rearing animals. He ordinarily would have been carrying a stick. Moving about with some kind of a stick by a Fulani man is an ordinarily thing whenever, anywhere, anytime, it is not unusual. The provocative acts of the deceased were in the circumstances quite sudden and grave. The acts of the deceased were totally uncalled for and unnecessary, in my humble view. They were not the acts of a reasonable house wife. The Appellant did not deserve being refused drinking water by any ordinarily member of his community, moreso by the deceased. Requesting and being obliged drinking our water was quite normal in nearly all urban and rural communities. It amounted to rubbing salt to injury for a wife to blatantly refuse a very normal request of her husband to give him drinking water and for her to further call him a bastard. To call any person a bastard in Nigeria is sufficiently provocative, without any doubt. The Appellant was fully entitled to feel enraged and the acts of the deceased, in aggregation were capable of making the Appellant to lose his power of self-control. Therefore, all the findings of the lower Court in that regard were quite proper and cannot be faulted. More specifically, the finding that the instantaneous use of a stick he was holding by the Appellant in the circumstance he found himself.

The gravity of provocation cannot be correctly assessed in isolation from manner or life of the community to which the accused is a member. Being refused drinking water to quench a ravaging thirst by the deceased and to further call the Appellant a bastard was deeply and profoundly provocative in the circumstance. Further to all the foregoing, it was held in the case of EKPENYONG V. THE STATE (supra) that the force used by the accused in repelling the provocation is not disproportionate in the circumstance. Thus, it must be shown that the retaliatory act to the provocation must be proportionate to the act reacted against. The Supreme Court further decided in EKPENYONG V. STATE (supra) that all the ingredients in the defence of provocation must co – exist in order for it to be upheld.

Domestic squabbles and quarrels are a universal phenomenon. They are very well known to exist even in the most well organised and enlightened communities amongst the most educated couples. The Appellant opted not to testify in his own defence at the trial. In refusing to testify, the Appellant deprived the lower Court of the opportunity to really assess his demeanour, reliability and credibility as a witness as well as to also assess his real state of mind at the time he hit the deceased with his stick. The evidence of PW1 on the extent of the injuries inflicted on the deceased by the Appellant, after hitting her up to 3 times on the head, neck and eyes, was gruesome. The learned trial judge accepted this evidence as credible and reliable. He was entitled to do so. It is his exclusive duty to assess the character and demeanour of witnesses who appeared before him and the quality of their testimonies, and I do not see any good reasons to interfere with that.

Even if it was only a stick, and not any knife at all, that the Appellant used on the deceased, should he have done it repeatedly? It is possible that the Appellant had other options to address the grave and sudden provocation he received from the deceased. He could have contemplated to divorce the deceased as an option, having regards to the social circumstances of the Appellant and the community he belonged. It is such a notorious fact that a Court of law such as the trial Court in the instant appeal can take judicial notice of that divorces are rampant and can be pronounced for the flimsiest or most frivolous reasons.

It is against this background that I find the repeated use of a stick by the Appellant on the deceased on very vital parts of her body leading to the gruesome injuries described in the evidence of PW1, as disproportionate in the circumstance. I agree with the submissions of learned counsel to the Respondent that the lower Court was correct to so hold and find.

Upon all the above, issue two for determination in this appeal is resolved against the Appellant. Having resolved the two issues in this appeal against the Appellant, this appeal is totally devoid of any merit and it is accordingly dismissed. The judgment of the Kebbi State High Court in charge No. KB/HC/4C/2006 delivered on 24th July, 2006 is affirmed.

SAIDU TANKO HUSSAINI, J.C.A.: I have read the lead judgment prepared and delivered by my Lord, Ali ALB. Gumel, PJ, JCA, and I agree with him, in his reasoning and conclusion. The appeal lacks merit and same is dismissed. The judgment delivered at the High Court of Kebbi on 24th July, 2006 in charge No: KB/HC/4C/2006 is affirmed.