HASSAN v. STATE
(2022)LCN/16794(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, November 04, 2022
CA/ABJ/CR/917/2021
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Olasumbo Olanrewaju Goodluck Justice of the Court of Appeal
Between
UMARU HASSAN APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS
The law is trite that standard of proof where commission of crime is in issue is beyond reasonable doubt. See Section 135 (1) of the Evidence Act. This burden is static, it does not shift as the prosecution must prove it. It is when the prosecution discharge this burden of proving the commission of a crime beyond reasonable doubt that the burden of proving reasonable doubt shifts to the accused person. (Section 135 (3) of the Evidence Act). PER SANGA, J.C.A.
WAYS THE PROSECUTION CAN PROVE THE CRIME AGAINST AN ACCUSED PERSON
The issue to consider now is: considering the oral and documentary evidence adduced during trial of this case before the lower Court, whether the prosecution has discharged the burden placed on it of proving the guilt of the accused beyond reasonable doubt? If the answer is in the affirmative, whether the accused in his defence, proved reasonable doubt? It is an elementary principle of criminal justice that where a crime is committed and an accused is arraigned before the Court there are three ways of proving a crime against him as follows:
1. By direct evidence;
2. By confessional statement; or
3. By circumstantial evidence
In USMAN ISAH & ORS V. THE STATE (2010) 16 NWLR (pt. 1218) page 132, this Court held at page 161 that:
“The guilt of an accused person can be proved by:
a. The confessional statement of the accused person;
b. Circumstantial evidence; or
c. Evidence of eye witness. PER SANGA, J.C.A.
THE INGREDIENTS TO PROVE SEF DEFENCE
But in this case, was the accused able to prove this defence of self-defence in his statements in Exhibits B and C? It should be noted that for the defence of self-defence to succeed, the accused must convince the Court that the action he took was unavoidable in other words there is no other alternative. Also, for the defence to succeed, the accused must prove the following ingredients:
1. He is free from fault in bringing about the encounter, in other words, he was not the one who caused the fight or instigated the attack by the deceased.
2. There must be present and impending peril to his life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.
3. There must be no safe or reasonable mode of escape or by retreating.
4. There must have been a necessity for taking life.
These ingredients must exist for the defence of self defence to succeed. See YEKINI AFOSI V. THE STATE (2013) LPELR – 20751 (SC) at P. 38 paragraphs. B-G per Ariwoola, JSC (now CJN). PER SANGA, J.C.A.
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Justice Niger State, Minna Judicial Division Coram: Aisha A. L. B. BWARI C.J. in suit No. NSHC/MN/13c/2018 delivered on 24th September, 2021. The Appellant as Accused person was arraigned on a one count charge for committing the offence of Culpable Homicide punishable with death contrary to Section 221 of the Penal Code Cap 95 Laws of Niger State of Nigeria, 1989. On 31/10/2018, when the charge was read to the accused, he pleaded “Not guilty” (page 45-46 of the Records). Thereafter trial commenced. The prosecution called four (4) witness as follows:
“1. P.W.1 is Sgt Binjin Yelchini attached to Wushishi Police Division Niger State. He was on duty as the I.P.O, on 14/16/2017 when a case of causing grievous hurt was reported to his station and he was detailed by his D.P.O. to investigate. The victim was rushed to the General Hospital Wushishi for treatment but he later died at about 6:30 hrs. That a Corona Form was remitted to the hospital and a post mortem examination conducted, also the photograph of the deceased was snapped. The corpse was then released to the relations of the deceased for burial. That on 15/6/2017, he visited the scene of crime and he later arrested the accused and also recovered a cutlass used in committing the offence. After administering the cautionary words, the suspect volunteered to make a statement which he recorded in English language. That on 20/6/2017, the accused was transferred to State C.I.D. Minna for further investigation. The Corona’s Form together with “Report on Mohammed Babankaji of Isono Bangi Fulani Camp” dated 14/6/2017 were tendered in evidence without objection by learned counsel to the accused and marked as Exhibits A1, A2, A3 and A4 respectively. So also the statement made by the accused which was admitted in evidence and marked as Exhibit B.”
In his evidence under cross-examination, P.W.1 stated inter alia, that he recorded the statement volunteered by the accused in English language as he cannot write in Hausa language. That he observed that there was no machete cuts on the body of the accused when he made his statement. During re-examination, P.W.1 testified thus:
“The accused brought the cutlass to me the weapon he used on the deceased.”
(Testimony of PW1 is at pages 50-53 of the Records).
2. P.W. 2 is Dr. Oyewo Rasak Adewole a medical doctor attached to General Hospital Kutigi. He entered the witness box on 27/6/2017 to tender the Medical Report. However, he stepped out of the witness box because learned counsel to the accused was not given a copy of the said medical report. On 27/1/2010, P.W.2 was called back into the witness box and tendered the medical report and it was marked as Exhibit E. (pages 67-68 of the Records).
3. P.W.3 is Israel Alemu an Assistant Superintendent of Police (A.S.P.) attached to State C.I.D. Minna as an investigator. He was directed to take the statement of the appellant when he was brought to their office from Wushishi Division on 20/6/2017. He administered the words of caution on the accused before recording his statement in English language. On realising that the statement was confessional, he took the accused to a superior police officer, one ASP Zakari Hassan who read the statement to the accused and he accepted it as a correct version of what he said. Thereafter, the superior police officer endorsed same. Learned counsel to the prosecution applied to tender the statement in evidence, learned counsel to the accused did not object. It was admitted in evidence and marked as Exhibit ‘C’.
During cross-examination by M. Anachie, Esq., of counsel to the accused, PW3 testified inter alia, that the accused does not speak or understand English language the language used in recording his statement. That the accused did not said “I killed Baban Kaji” rather the information on the death of the deceased was conveyed the accused by his relation who took the deceased to the hospital.
4. P.W.4 is ASP Adamu Saidu a police officer attached to the State CID as an exhibit keeper. That on 17/7/2017 at about 10:00 hrs one Ayuba Jika of the State CID brought to him in his exhibit room a cutlass for registration in respect to the case of culpable homicide involving the accused. That he registered the cutlass in the Court exhibit Register as CER 204/2017 in red ink and kept same in the exhibit room. He identified the said cutlass which S.K Ibrahim, Esq., of counsel to the prosecution tendered in evidence without objection by learned counsel to the accused person. Same was admitted in evidence and marked Exhibit ‘D’ by the learned trial Judge. There was no cross-examination of pw4. (pages 66-67 of the record of appeal).
The prosecution closed its case and the case was adjourned to 24/2/2020 for defence.
But it was on 3/2/2021 that the accused testified from the dock as D.W.1. In his testimony in chief he stated inter alia, thus:
“I know Mohammedu Babankaji. On 13/06/2017, I was coming back from giri market in the evening. I met him lying on the road with a cutlass trying to kill me as he brought out his cutlass running after me. While I saw this, and saw that I cannot escape, he attempt to cut me and I with my hand and he cut the index of my right hand and I then hit him with my stick and started running again. He again followed, me running with his, cutlass and I saw he will overtake me, I again hit him with the stick on the arm. He fell down and I ran to my house and told my father what happened.
After about 2 weeks, some people came and asked me to come and explain what happened between me and the deceased. They took me to the Police Station Wushishi, they told me to explain what happened between me and Babakaji. I was then detained there for 3 weeks there at the Police Station.
I gave the statement in Hausa language which was read over to me in Hausa language.
Exhibit D the cutlass does not belonging to me.
I was brought to the SCID Minna from Wushishi but I was not shown the cutlass Exhibit D, I only defended by self from being killed by Babankaji.”
During cross-examination, D.W. 1 stated that he was not lying when he said he was holding a stick and not a cutlass. That he made a statement in Hausa language which was read to him and he said he understood. That he did not told the police he was holding a cutlass when he fought with the deceased.
The learned counsel to the accused closed their defence and the case was adjourned to 4/3/2021 for adoption of final written addresses. The final written Address of the accused dated 16/2/2021 was settled by Mika Anache, Esq., It is at pages 78-85 of the Records. The prosecution’s final written Address dated 23/2/2021 was settled by M. A. Kutigi, Esq., (pages 86-106 of the record of appeal).
Judgment was delivered on 24th September, 2021. In his judgment, the learned trial Judge reviewed the evidence (oral and documentary) adduced by the parties during trial, the submission by learned counsel in their respective final written addresses and resolved all the four issues in contention in favour of the prosecution. He concluded by holding thus:
“I think death would be considered by a reasonable man to be the natural effect of the act of accused hitting the deceased severally with a cutlass all over the body including the head, leaving/resulting deep lacerations from which to bled.
In conclusion, the Court cannot resist but to arrive at the conclusion that the prosecution has successfully proven that the accused by inflicting several matchet cuts on the deceased with none shown to have inflicted any on the accused by the deceased go in proof that he intended to cause the death of the deceased by his acts, successfully proving its case of culpable homicide punishable with death, as charged under Section 221 of the Penal Code, Cap 95 Laws of Niger State, 1989.
For these reasons, the Court finds you Umaru Hassan guilty of culpable homicide of Muhammed Babankaji punishable with death and hereby convicts as charged (sic) under Section 221 of the Penal Code Cap 94 (sic) Laws of Niger State 1989.”
Learned counsel to the convict by way of allocutus pleaded for leniency on behalf of his client. Learned counsel to the prosecution also informed the Court that the convict has no record of previous conviction. The learned trial Judge pronounced sentence as follows:
“Consequently therefore, the Court hereby sentence you Umaru Hassan to death and you are to be hanged by the neck till you are dead.”
(The entire judgment of the lower Court is at pages 108-129 of the Records)
This decision by the trial Court aggrieved the convict. He filed a Notice of Appeal containing three grounds of appeal on 15/11/2021. (pages 131-134 of the record of appeal). Records were compiled and transmitted to this Court on 26/11/2021. The Appellant’s brief of argument was settled by Kenneth Anakwe, Esq. It was filed on 13/12/2021. Learned Counsel formulated three issues from the three grounds of appeal as follows:
“1. Having regards to Exhibit ‘B’ and other pieces of evidence before the Court whether the charge against the Accused ought to be culpable homicide not punishable with death? And if answered in the affirmative, whether the learned trial Judge was right in law when he held that the second ingredient of the offence under Section 221 of the Penal Code stands established against the Accused person (now Appellant) and consequently convicted the Appellant of culpable homicide punishable with death (Ground 1)
2. Having regards to the defence of self-defence raised by the Accused (now Appellant) whether the learned trial judge was right in law when he held that the third ingredient of the offence under Section 221 of the Penal Code has been manifestly and sufficiently proved against the Accused with the evidence contained in Exhibits A-E and consequently convicted and sentenced the Appellant. (Ground 2).
3. Whether the learned trial judge was right when he held that the prosecution has proved its case of culpable homicide punishable with death as charged under Section 221 of the Penal Code and consequently convicted and sentenced the Appellant. (Ground 3).
The Respondent’s brief of argument was settled by M. A. Kutigi, Esq., (Assistant Chief State Counsel) Ministry of Justice, Minna. It is dated and filed on 7/3/2022. On the application filed by the learned counsel to the respondent filed on 4/4/2022, we deemed the respondent’s brief as duly filed and served on 13/9/2022. Learned counsel canvassed two issues out of the three grounds of appeal as follows:
1. Whether the prosecution (Respondent) proved its case against the Appellant beyond reasonable doubt as required by law.
2. Whether the defence of self-defence raised by the Accused person while giving testimony in the witness box will avail the Accused person.
Upon being served with the respondent’s brief, learned counsel to the appellant filed a Reply Brief on 14/3/2022 which we also consequentially deemed on 13/9/2022.
I will consider the submission by learned counsel in their respective briefs and the reply brief before making my findings.
ISSUES 1 & 2
In his submission, learned counsel to the Appellant argued his issues 1 and 2 together. He submits that the conviction of the Appellant was mostly founded on Exhibit ‘B’ which is the confessional statement of the Accused person as recorded by PW1. Learned Counsel quoted the testimony of PW1 where he stated thus:
“a case of causing grievous hurt was reported and my DPO named Ibrahim Aiiyu (ASP) directed me to investigate.”
That the offence which was first reported at the Wushishi Police Division was investigated against the Accused, was a case of causing grievous hurt. Learned Counsel quoted some portion of the confessional statement of the Appellant and states that the appellant and the deceased had a fight which led to the death of the deceased and it was not premeditated. That it was never the intention of the appellant to cause the death of the deceased. Learned counsel cited the following authorities on when culpable homicide will not be punishable with death.
1. USMAN V. STATE (2015) LPELR- 40855 at paragraph B-F
2. SALE V. STATE (2015) LPELR- 40399; at page 11 paragraph F.
On the contention that the Appellant should have been convicted for culpable homicide not punishable with death, learned counsel cited and quoted the holding of this Court in MUSA V. STATE (2019) LPELR- 46462 and urged the Court to resolve issues 1 and 2 in favour of the Appellant.
ISSUES 3
In his submission, while arguing issue 3, learned counsel to the Appellant submits that the proof required of the prosecution on culpable homicide punishable with death is beyond reasonable doubt. That to succeed in that respect, three ingredients of the offence must be proved together and failure to prove any one of them means failure of the charge itself. Cited this Court’s decision in HASSAN V. STATE (2018) LPELR-46817 (CA) where it held, inter alia, thus:
“In a charge of culpable Homicide punishable with death under Section 221 of the Penal Code, the prosecution must prove beyond reasonable doubt that:
1) The deceased died;
2) That the death of the deceased was caused by the act of the accused person;
3) That the act or omission of the accused person(s) which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
The three ingredients must all be proved together and failure to prove any one of them means failure of the charge itself.
The contention of the appellant in this issue is that the prosecution failed to prove beyond reasonable doubt that the act or omission of the accused which cause the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. That the prosecution failed to call an eye witness to the event that led to the demise of the deceased. Also, that there is contradiction in the evidence of PW1 where he stated in his evidence in chief that the cutlass was recovered at the house of the accused. But during re-examination, he said the accused took the cutlass to him which he used on the deceased. That no eye witness was called to testify by the prosecution despite the statement of the accused to the police (Exhibit B) that while they were fighting “one unknown Fulani man came and separated the fight.”
That the police investigation ought to have unearthed this “unknown Fulani man” who separated the duel. Failure to do so is fatal to the case of the prosecution. Also that one Usman Yate whose statement was recorded and is at page 16 of the record of appeal would have been put in the witness box to testify that he said “an eye witness sighted them while they were fighting.”
On duty of the prosecution to call vital witnesses and the effect of failure to do so, learned counsel to the Appellant cited the judicial authority of OMOTAYO V. THE STATE (2012) LPELR-9358 (CA) Pp. 25-29 paragraph E-A. That failure by the prosecution to call an eye witness(es) and the contradiction in the evidence of PW1 and Exhibit D (the cutlass) created a doubt about the intention of the accused in committing the offence. That the apex Court held inter alia, that where there is doubt as to the guilt of the accused arising from the contradictions in the evidence by the prosecution on material issues, it must be resolved in favour of the accused person in the case of STATE V. EMINE & ORS (1992) LPELR-3218 (SC) per KAWU, JSC at P.13 paragraphs A-B, ALMU V. State (2009) 4 MJSC (Pt. II) 147 at 171 paragraphs F-G.
Learned Counsel concluded his submission on this issue by stating that the second and third ingredients of the offence of culpable homicide punishable with death were not proved beyond reasonable doubt by the prosecution and it is trite law that failure to prove one of the three means failure of the charge itself. Cited ADAVA V. STATE (2006) 9 NWLR (pt. 984) 155 at 167, OGBA V. STATE (1992) 2 NWLR (pt. 222) 164 at 198 paragraphs C-D.
Urge the Court to resolve this issue in favour of the Appellant, allow this appeal, set aside the conviction and sentence of the Appellant by the trial Court and to discharge and acquit the appellant.
Issue 1 canvassed by learned counsel to the Respondent is:
Whether the prosecution proved its case against the appellant beyond reasonable doubt as required by law?
In his submission, while arguing this issue, learned counsel to the respondent states the trite position of the law that it is the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt. That proof beyond reasonable doubt however does not mean proof beyond shadow of doubt. That in the instant case, the prosecution have proved the guilt of the accused person beyond reasonable doubt thus discharged the burden placed on it by cogent, credible, unassailable and unimpeachable evidence as required by law.
As for the submission by learned counsel to the Appellant that since the offence reported at the Wushishi Police Station is for causing grievous hurt, the appellant ought to have been charged under Section 224 of the Penal Code, learned counsel to the respondent replied that having considered Exhibit B and other pieces of evidences before the trial Court, the charge against the accused ought to be culpable homicide punishable with death under Section 221 of the Penal Code. That in proving the offence of culpable Homicide according to the Penal Code (Annotated) the prosecution is required to show:
1. The death of the person in question;
2. That such death was caused by the act of the accused.
3. That the accused intended by such an act to cause such bodily injury as was likely to cause death or that he knew that such act would be likely to cause death or that he caused the death by a case of negligent act. Cited AFOLABI V. STATE (2018) ALL FWLR (pt. 955) 446. Learned Counsel addressed the Court on each of the three requirements with decided judicial and statutory authorities and submits that the prosecution has succeeded in proving all the ingredients of the offence of culpable homicide punishable with death beyond reasonable doubt against the accused person. That all the evidence produced by the prosecution in proof of their case were neither shaken nor discredited by the defence during trial.
That it is a well-established and elementary principle of criminal justice that there are three basic ways of proving a crime against an accused person, to wit;
1. By direct evidence;
2. Confessional statement and
3. Circumstantial evidence.
Cited ISAH V. STATE (2010) 16 NWLR (pt. 1218) 132 at 161.
That there are plethora of judicial authorities that held that confessional statement is the best means by which an offence can be proved beyond reasonable doubt even without corroborative evidence. Cited NWACHUKWU V. STATE (2005) 4 LRCNCL P. 53 at 75 per IGUH, JSC; OLADIPUPO V. STATE (2013) NWLR (pt. 1334) P. 68 at 95. Learned Counsel submits further that Exhibits B and C (the confessional statements of the Appellant) are cogent proof against the accused that he did commit the offence of culpable homicide punishable with death. That it shows beyond reasonable doubt that the accused committed the offence and the prosecution succeeded in establishing same. He urged the Court to so hold and resolve this issue in favour of the respondent.
The second issue argued by learned Counsel to the respondent is whether the defence of self defence raised by the accused while testifying in the witness box will avail the accused person. While arguing this issue, learned counsel to the respondent submits that self-defence is one of the commonest defence raised by an accused person in a criminal charge of culpable homicide. Cited BRAIDE V. THE STATE (1997)5 NWLR (pt. 5041) 141 at 149 where the apex Court held thus:
“The doctrine of self-defence posits that a person can act in ways that would otherwise be unlawful to prevent the commission of a crime.”
Learned Counsel also cited and quoted the decision of the Supreme Court in NJOKU V. STATE (1993) 7 SCNJ 36 and AMALA V. STATE (2004) 18 NSCQR 834. That generally, a man is justified in using a reasonable amount of force in self defence, if such a person believes that the danger of bodily harm is imminent and that force is necessary to avoid the danger. That it is not the situation in the instant case where the accused in one breath said:
“He followed me from behind and struck me with his cutlass but blocked (him) it. I fought back and inflicted injuries on his hand and other parts of his body with my cutlass.”
And in another breath he said:
“He used his cutlass and hit me on my back but I didn’t sustain injury, whereby I removed my cutlass and we faced each other. He was trying to cut me but I used my cutlass and blocked it. In the process, I succeeded and cut him on his hand and he sustained serious injury where I overpowered him and inflicted several cuts on his body and one Fulani man came and separate us.”
Learned counsel to the respondent raised several posers based on the confession by the accused person above as follows:
1. How possible is it for one to block a strike of a cutlass from behind?
2. Where it was not blocked, how possible is it for one not to sustain injury from it?
3. For someone who was trying to kill another, why use a cutlass to hit your victim instead of striking to cut and injure him?
4. How can one involved in a fight using cutlasses get away without even a scratch?
5. Why inflict several cuts on a person you have overpowered if it is indeed in self defence?
6. If it was in self defence, why wait to be separated from fighting with a person whom you have already overpowered?
That these are questions that weakened the defence of self defence raised by the accused. That although the accused testified that the deceased cut his finger while attacking him but the PW1 who was the I.P.O, debunked this assertion by the accused when under cross-examination testified that there is no machete cut anywhere on the body of the accused person.
That it is worthy of note that what matters most in pleading self defence is the reasonableness of the force used. That to arrive at a just decision on this the Court ought to ask two questions: (a) was the use of force necessary in the circumstance i.e was there a need for use of force at all? (b) was the force used reasonable and necessary in the circumstance of the case? That these questions ought to be answered in the negative in this case.
Urged the Court to so hold. Cited and quoted the holding by the apex Court in JOHN V. STATE (2017) SC ALL FWLR (pt. 901) 620 at 628. That for an unprovoked assault, the law is that the person assaulted has a legal obligation to use such force as is necessary to make an effectual defence against the assailant. That this is not the case in this case. That by the proviso to Section 286 of the Criminal Code, it restricts the person defending himself against any force that might cause death or grievous bodily harm.
That where the nature of the assault is likely to cause reasonable apprehension of death or grievous harm and such a person believe he cannot otherwise preserves himself from death or grievous harm, he is legally allowed to use any force that is necessary even if it will lead to death or cause grievous harm. Cited NKPUMA V. STATE (1999) 9 NWLR (pt. 317) 374. That in OMOREGIE V. THE STATE, the apex Court held that self defence that will have any impact on a case to favour an accused must be such that the action taken by the accused was unassailable. The Court listed the elements of self-defence as follows:
a. The accused must be free from fault in bringing about the encounter.
b. There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.
c. There must be no safe or reasonable mode of escape by retreat and
d. There must have been a necessity for taking life.
That to sustain a defence of self-defence all the above ingredients must co-exist and be established. Cited NWEDE V. STATE (1995) 3 NWLR (pt. 384) 385, NWEDE V. STATE (1985) 3 NWLR (pt. 13) 374.
That in the instant case, there was neither any impending peril to life or of bodily harm either real or so apparent as to create honest belief of an existing necessity nor was there a necessity for taking life because if a third party had not intervened and separated the fight, the accused would have ensured that his victim was dead before he left him alone. That the accused had every opportunity for safe and reasonable mode of escape by retreating since he stated that he overpowered his victim. Cited OCHANI V. STATE (2017) SC ALL FWLR (pt. 904) 1054 at 1062 where the apex Court gave the guiding principles when considering the defence of self-defence. Urged the Court to discountenance the defence of self-defence put forward by the accused person, resolve this issue in favour of the respondent.
Learned Counsel finally urged the Court to affirm the decision of the trial Court wherein it convicted and sentenced the appellant to death by hanging for committing Culpable Homicide punishable with death contrary to Section 221 of the Penal Code.
I have considered the submission by learned Counsel to the Appellant in the reply brief.
The main issue canvassed by the appellant in the said reply brief is: Whether failure to identify the ground of appeal from which an issue is distilled renders the issue incompetent? I noted that the two issues canvassed and argued by learned Counsel to the respondent at paragraph 3.1 page 3 of the Respondent’s brief made no reference to the grounds of appeal from which the issues were formulated.
I thought that this omission is innocuous and can be overlooked for being a mere technicality until when I considered the holding by this Court (which was cited and quoted by learned Counsel to the Appellant) in RICKEY TAFAR (SIC: TARFA) MUSTAPHA (SAN) V. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-43131 (CA) per MOHAMMED LAWAL GARBA JCA (now JSC) at pp-30-31 paragraphs A- D where the learned law Lord held thus:
“As can be noticed, the learned counsel for the Respondent has not indicated from which of the grounds on the Appellant’s Notice of Appeal the above issues were distilled for determination. The law is known very well in the appellate Courts that a Respondent who did not file a cross-appeal or a Respondent’s notice in an appeal is confined in the formulation of issues for decision in an appeal, to the grounds contained in the Appellant’s notice of appeal. Without clear indication of which of the grounds of the appeal such Respondent formulated issues for decision from, it would be speculative to assume that such issues were derived from the Appellant’s ground of appeal, even if the issues are similar to those formulated by the Appellant. Since the law is that it is only issues distilled from competent grounds of appeal contained on a Notice of Appeal, Cross-Appeal or a Respondent’s Notice as the case may be that are competent and valid for consideration in the determination of an appeal. It is the legal duty of counsel for the parties to always specifically and clearly indicate from which of the grounds of an appeal they distilled issues which they submit to the appellate Court for decision in an appeal. Where they neglect, omit or fail to do so, the issues would be liable to be struck out or ignored because it is not part of the judicial duty of an appeal Court to speculate on the issues. In the case of Akinlagun V. Oshoboja (2006) ALL FWLR (325) 53 at 82 paragraphs D- E, it was held by the Supreme Court per Ogbuagu JSC that: “The consequence of failure to do so relate/distill/identify such issue or issues with the grounds or grounds of appeal, is that such issue or issues is or are liable to be struck out.” See also Ezeja V. State (2006) ALL FWLR (309) 1535, SPDC Ltd. V. Edamkue (2009) 14 NWLR (1160)1.”
This decision is clear and unambiguous. As I observed above, the learned counsel to the Respondent did not state the grounds of appeal from which he formulated the two issues contained in his brief.
Therefore, the only option available to me is to strike out the said two issues for failure to relate them with the grounds of appeal. The said issues formulated by the Respondent are hereby struck out. This appeal will therefore be determined solely on the submission by learned counsel to Appellant. This does not preclude this Court from considering the trial before the lower Court vis-a-vis the evidence adduced there in as contained in the record of appeal with a view to reaching a just decision in the interest of justice.
RESOLUTION OF ISSUES:
In determining this appeal, I will adopt issue three canvassed by the Appellant as it encompassed issues 1 and 2 which learned counsel argued together in his brief of argument. The issue is:
Whether the learned trial Judge was right in law when he held that the prosecution has proved its case of Culpable Homicide punishable with death as charged under Section 221 of the Penal Code and consequently convicted and sentenced the Appellant.
The law is trite that standard of proof where commission of crime is in issue is beyond reasonable doubt. See Section 135 (1) of the Evidence Act. This burden is static, it does not shift as the prosecution must prove it. It is when the prosecution discharge this burden of proving the commission of a crime beyond reasonable doubt that the burden of proving reasonable doubt shifts to the accused person. (Section 135 (3) of the Evidence Act).
The issue to consider now is: considering the oral and documentary evidence adduced during trial of this case before the lower Court, whether the prosecution has discharged the burden placed on it of proving the guilt of the accused beyond reasonable doubt? If the answer is in the affirmative, whether the accused in his defence, proved reasonable doubt? It is an elementary principle of criminal justice that where a crime is committed and an accused is arraigned before the Court there are three ways of proving a crime against him as follows:
1. By direct evidence;
2. By confessional statement; or
3. By circumstantial evidence
In USMAN ISAH & ORS V. THE STATE (2010) 16 NWLR (pt. 1218) page 132, this Court held at page 161 that:
“The guilt of an accused person can be proved by:
a. The confessional statement of the accused person;
b. Circumstantial evidence; or
c. Evidence of eye witness.
In the instant case, the accused person volunteered and made statements twice, the first one on 15th June, 2017 at the Wushishi Police Division (pages 31 to 32 of the record of appeal). Learned counsel tendered the said statement through P.W.1 during trial on 9th May, 2019. Learned counsel to the accused did not object and the learned trial Judge admitted the statement in evidence and marked it as Exhibit B (page 52 of the Records).
The accused person also volunteered another statement at the State C.I.D Minna on 20th June, 2017 (pages 29-30 of the record of appeal). The statement was tendered in evidence by the prosecution through P.W.3 on 27/6/2019 without any objection by the defence and same was admitted in evidence by the learned trial Judge and marked as Exhibit C. (page 56 of the Records). Exhibits ‘B’ and ‘C’ are confessional in nature. Both statements were read over to the accused person before a superior police officer and he admitted making the statements voluntarily, willingly, not under duress, promise or intimidation. He endorsed same and the superior officer also endorsed, (pages 30 and 32 of the record of appeal).
In his statement in Exhibit B the accused inter alia, stated thus:
“Later around 1700hrs, while on my way going back home, one Mohammadu Babakaji ‘M’ of the same address came and met me on my way and insulted my parents. When asking him the reason of insulting me, he told me that he is annoying (sic) with me but he did not tell me. Then he used his cutlass and hit me at my back but I don’t sustain injury, whereby I removed my cutlass and we faced each other. He was trying to cut me but I used my cutlass and block it. In the process, I succeeded and cut him on his hand and he sustained serious injury where I overpower him and inflicted served cuts on his body and one unknown Fulani man came and separated us.
Only two of us that fought on that day, no any third party. I don’t know that the cuts will resulted to his death, if I know, I couldn’t have did it (sic).”
In Exhibit C, the accused stated thus:
“I met one Fulani man by name Babankaji ‘M’ of the same address sitting by the road side and stopped me that he is angry with me. I asked him what did I do wrong and he said he is just angry with me without telling me any reason. I pleaded with him and left. He followed me from behind and struck me with his cutlass but I block (him) it. I fought back and (cut) inflicted injuries on his hand and other parts of his body with my cutlass. While we were fighting, one man who I don’t know met us and separate us while I went home. When I got home, I informed my younger brother by name Mohammed Hassan to inform our father that I fought with Babankaji on the way home. He was taken to the hospital where he later died while receiving treatment…”
These two statements by the accused are confessional. The accused tried to raise the defence of self-defence in his assertion that the deceased attacked him first. Self-defence is a situation where the accused admits that he did the act which resulted in the death of the victim and was justified in doing so to protect his own life because he was at risk of imminent death and would have been killed or was in such fear when he committed the act. See Section 65 and 66 of the Penal Code (Cap 89) LFN 1963; OGBA V. THE STATE (1990) 3 NWLR (PT. 139) 505 at 518, NWUGURU V. STATE (1991) 1 NWLR (PT. 165) 41 AT 47. The defence if successful would lead to the exoneration of the accused. In SAMPSON NKEMJI UWAEKWEGHINYA V. THE STATE (2005) LPELR – 3442 (SC) the apex Court per BELGORE, JSC held that:
“The purport of self-defence in law is to negative the existence of an offence so that where a person kills another in self-defence the killing unlike in provocation as a defence, does not amount to an offence but total exoneration of the accused.”
But in this case, was the accused able to prove this defence of self-defence in his statements in Exhibits B and C? It should be noted that for the defence of self-defence to succeed, the accused must convince the Court that the action he took was unavoidable in other words there is no other alternative. Also, for the defence to succeed, the accused must prove the following ingredients:
1. He is free from fault in bringing about the encounter, in other words, he was not the one who caused the fight or instigated the attack by the deceased.
2. There must be present and impending peril to his life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.
3. There must be no safe or reasonable mode of escape or by retreating.
4. There must have been a necessity for taking life.
These ingredients must exist for the defence of self defence to succeed. See YEKINI AFOSI V. THE STATE (2013) LPELR – 20751 (SC) at P. 38 paragraphs. B-G per Ariwoola, JSC (now CJN).
In his testimony as DW1 at pages 75-76 of the record of appeal, the appellant sung a different tune in his defence of self-defence when he said.
“I know Mohammed Babakaji. On 13/06/2017, I was coming back from Giri market in the evening. I met him lying on the road with a cutlass trying to kill me, as he brought out his cutlass running after me. While I saw this, and saw that I cannot escape he attempt to cut me and I with my hand (sic) and he cut index of my right hand and I then hit him with my stick and started running again. He again followed me running with his cutlass and I saw he will overtake me I again hit him with the stick on the arm. He fell down and I ran away to my house and told my father what happening…”
When shown the cutlass he used in matcheting the deceased which was admitted in evidence and marked as Exhibit D, the accused denied owning the said cutlass. During cross-examination, he testified that:
“I am not lying that I was holding a stick and not a cutlass.”
As for the ipse dixit by the appellant that the deceased cut off his index finger, the PW1 testified during cross-examination that:
“There was no matchet cut on the body of the accused at the time he made the statement”.
During ex-examination PW1 testified that:
“The accused brought the cutlass to me as the weapon he used on the deceased.” (page 520 of the records)
Upon considering the contradiction between the statements of the Appellant in Exhibits B and C and his testimony on the weapon he was holding and which he used to inflict the injuries on the deceased, it is obvious that he was not telling the truth or he was being clever by half. The contradiction on the weapon he used to inflict the injuries on Babankaji which led to his death completely nullified the defence of self-defence which the accused was trying to rely on to justify his action. The medical doctor who issued the medical report (Exhibit E) and testified as P.W.2 testified during cross-examination that:
“There are two issues identified while examining the patient one is a big laceral on the head and the hypertension as a result of the Laceration …a big Iaceral because of the loss of blood can also lead to death.”
It is obvious that a stick cannot cause a laceration on the head because the definition of the word “Lacerate” in Oxford Advanced Learner’s Dictionary at page 830 is:
“to cut skin or flesh with something sharp.”
A stick is not capable of cutting the skin or flesh since it is not sharp but a machete can do so. Therefore, the assertion by the appellant that he defended himself from the attack by the deceased while using a stick is not true. The entire defence of self-defence by the accused is an afterthought and not acceptable, therefore-
I hereby discountenance that defence.
In reaching a decision while considering the defence of self- defence, the learned trial Judge raised six (6) posers as follows:
1. “How possible is it for one to block a strike of a cutlass from behind?
2. Where it is not blocked, how possible is it for one not to sustain any injury from it.
3. For someone who is not trying to kill another, why use a cutlass to hit your victim instead of striking to cut and injure him?
4. How can one who was involved in a fight using cutlass get away without even a scratch?
5. Why continue to inflict several cuts on a person whom you have overpowered if it is indeed in self-defence?
6. Why wait to be separated from fighting with a person whom you have already overpowered in self-defence?
Learned trial Judge concluded his judgment by holding that:
“I think death would be considered by a reasonable man to be the natural effect of the act of accused hitting the deceased severally with a cutlass all over the body including the head leaving/resulting in deep lacerations from which to bled.(sic)
In conclusion, the Court cannot resist but to arrive at the conclusion that the prosecution has successfully proven that the accused by inflicting several matchet cuts on the deceased go in proof that he intended to cause the death of the deceased by his acts. Successfully proving its case of Culpable Homicide punishable with death, as charged under Section 221 of the Penal Code, Cap 95 Laws of Niger State 1989.”
It is my finding that the learned trial Judge was right when he held that the prosecution has proved its case of culpable Homicide punishable with death as charged pursuant to Section 221 of the Penal Code and consequently convicted and sentenced the Appellant. I resolved this sole issue against the Appellant.
It is therefore my finding that this appeal lacks merit.
It is hereby dismissed. The judgment delivered by the trial Court in Suit No. NSHA/MN/13C/2018 on 26th September, 2021 wherein the Appellant was found guilty of committing the offence of Culpable Homicide punishable with death and sentenced to death by hanging pursuant to Section 221 of the Penal Code, Cap 35 Laws of Niger State of Nigeria, 1989 is affirmed by me.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Bitrus Gyarazama Sanga, JCA.
I agree that this appeal is bereft of merit and it ought to be dismissed.
The law is clear and settled that a criminal accusation can be proved beyond reasonable doubt by any of, or a combination of any of, the three following ways:
(i) direct evidence of an eyewitness or witnesses;
(ii) the confession of the accused defendant; and
(iii) circumstantial evidence.
See the cases of Michael Adeyemo v. The State (2015) 16 NWLR (Pt. 1485) 311, Joseph Bille v. The State (2016) 15 NWLR (Pt. 1536) 363, Ifeanyichukwu Akwuobi v. The State (2017) 2 NWLR (Pt. 1550) 421, Wahab Alao v. The State (2019) 17 NWLR (Pt. 1702) 501 and Andrew Koye Fekolomoh v. The State (2021) 6 NWLR (Pt. 1773) 461.
In this case, by evidence tendered by the prosecution, the criminal allegation against the appellant was proved beyond reasonable doubt and I find no basis or reason to interfere with the decision of the trial Court.
It is for the foregoing reasons and the more elaborate reasons given by my learned brother that I also dismiss this appeal.
OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: I have been availed with an advance copy of the lead judgment of Hon. Justice Bitrus Gyarazama Sanga, JCA and I fully associate myself with His Lordship’s evaluation of the evidence and the pronouncements on the issues for determination canvassed by the Appellant.
The failure of the Respondent’s counsel to link the Respondent’s issues for determination with the grounds of appeal is a fatal omission and it is not the duty of the Court to conjecture which of the grounds of appeal the issues for determination has been distilled. The inclusive of the grounds of appeal the issues for determination has been distilled renders the Respondent’s issues incompetent.
For the fuller reasons espoused in the lead judgment. I am of the view and will so hold that the defence of self-help cannot avail the Appellant. The prosecution has proved the offence of Culpable Homicide against the Appellant beyond reasonable doubt, consequently, the appeal is totally lacking in merit. The judgment of the lower Court is accordingly reaffirmed by me.
This appeal should and is hereby dismissed.
Appearances:
…For Appellant(s)
…For Respondent(s)
