DANLADI MUSA v. THE STATE
(2013)LCN/6382(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of July, 2013
CA/J/333C/2007
RATIO
WHETHER AN OBJECTION TO A DOCUMENT OR STATEMENT MADE BY AN ACCUSED PERSON MAY BE RAISED AT THE APPEAL COURT
It is trite law that the appropriate time to object to a document or statement made by an accused person on ground of inadmissibility or any other vice or inadequacy, is at the time or point when the prosecutor seeks to tender the statement in evidence and not at the Appellate court. See JOSEPH UBI IGIRI v. THE STATE (2012) 16 NWLR (PART 1327) 522 at 545 E per CHUKWUMA-ENEH, J.S.C. who held:-
“The objection to a confessional statement is required to be raised at the tendering of the confessional statement. This is ordinarily so, during presenting of the prosecution’s case at the main trial.”
It is also apposite here to refer to the case of F.R.N. v FAITH IWEKA (2011) 12 (Pt. 2) SCM 213 at 220 G-I where MUKTAR, JSC (now CJN) held:-
It is on record that the learned Respondent’s Counsel did not raise any objection at the point of tendering the statement. It was after the confessional statement had been admitted that the respondent retracted the statement in the course of giving evidence in his defence. This I think was an afterthought, for if she was uncomfortable with the statement, the point of tendering and admissibility should have been when to object.
It was late in time to have retracted at the stage she did the confessional statement not having been objected to was admissible as evidence, and the learned trial court was not in error in ascribing probative value to it. Authorities abound on this principal. Once there is evidence of administration of words of caution on a suspect in the language he understands, and he voluntarily makes his statement which is so recorded, and he signed the stamen, a Judge is at liberty to act on it and predicate a conviction thereon. See IKEMSON v. STATE (1989) 3 NWLR (PART 110) PAGE 530, SALAMI v. STATE (1071) 1 NMLR 249, EDAMINE v. STATE 1996 3 NWLR (PT 438) PAGE 530, and UNIERHO v. STATE 2005 5 NWLR PART 919 PAGE 644; (2005) 2 SCM 1993″ PER PETER OLABISI IGE, J.C.A.
INGREDIENTS TO BE PROVEN TO SECURE CONVICTION FOR A MURDER CHARGE
The law is settled that there are three essential ingredients or elements of offence of murder which must be cumulatively established against a murder accused in order to secure conviction. The position has been stated and restated in numerous cases. See SOLOMON ADEKUNLE v. THE STATE (2006) 14 NWLR (PART 1000) 717 at 736 H 737 A where Mohammed, J.S.C. said:-
“From a long line of the decisions of the court, it is settled beyond controversy that to secure a conviction on a charge of murder the prosecution must prove: –
(a) That the deceased had died,
(b) That the death of the deceased was caused by the accused,
(c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequences.
Similar position was taken by Supreme Court in respect of charge under section 221 of the Penal Code where Peter Odili, JSC. In the case of EMMANUEL OCHIBRA (2011) 17 NWLR (part 1277) 663 at 684 had this to say:-
“The next question to tackle is whether the conditions under which an offence of culpable homicide punishable with death under section 221 of the penal code under which the appellant us accused was convicted and sentenced. The conditions to be met are thus:-
(a) That the deceased had died;
(b) That the death of the deceased was caused by the accused; and
(c) That the act or omission of the accused which accused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.”
On page 688 MUHAMMAD, JSC said:-
“In the establishment of a Criminal offence, with which an accused person stands trial before a trial court, especially a capital offence such as culpable homicide, for which the appellant stood trial at the trial court, the law requires that, that offence must be proved beyond reasonable doubt by the prosecution (section 138 of the Evidence Act). The rudiments factors, ingredients or elements which the law places on the shoulders of the prosecution to so prove are as follows:-
1. that death of s human being had actually taken place,
2. such death was caused by the person accused,
3. the act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as:
(a) the accused knew or had reason to know that death would be the probable and only likely consequence of his act or;
(b) the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.” PER PETER OLABISI IGE, J.C.A.
WORDS AND PHRASES: MENS REA.
It is settled law that in a charge of culpable homicide pursuant to section 221 of the penal Code as to actus reas reus and mens rea credible evidence of a single witness is sufficient to convict the Accused.
Now mens rea is wrapped up in the doctrine that a person desires the probable consequences of his action.
See ABDU MOHAMMED v. THE STATE (1991) 7 SCNJ (PART 1) 114 at 119 where OMO, JSC has this to say:-
“There is no doubt that the evidence/mens rea required to ground a conviction on either subsection is different, the requirement of subsection, (a) Being higher than that of subsection (b) But what is necessary to secure a conviction under both sub-sections is not corroboration but evidence of the right probative value”
OLATAWURA, JSC on his part in the same decision at page 127 of the report said:-
“Mens rea simply means a guilty mind. Knowledge is simply a know fact or a belief. The knowledge within the contemplation of Section 221(b) of the Penal Code is a result of the act that must follow what the accused did, whereas the intention within section 221 (a) is the act contemplated by the accused to bring out a desired result. It is for this reason that a man is presumed to intend the natural consequences, of his act. A man who inflicted matched cuts on another cannot be heard to say he had no intention to kill or at least cause bodily harm. The knowledge that death will result when a man decapitated another person cannot be described as improbable.” PER PETER OLABISI IGE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
DANLADI MUSA Appellant(s)
AND
THE STATE Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Appellant was on 24th day of April 2002 arraigned before the High Court of Justice Plateau State (R. K. SHA-J) Holden at Jos charged with an offence of Culpable Homicide Punishable with death contrary to Section 221 of the Penal Code.
The particulars of the offence against the Appellant reads as follows:-
“THAT YOU DANLADI on or about the 2nd day of June, 1996 at Mangu within the Jos Judicial Division did commit Culpable Homicide Punishable with death in that you caused the death of one Solomon Musa, Male by doing an act to wit stabbing him with a knife on the stomach and chest the intention of causing his death and thereby committed an offence punishable under Section 221 of the Penal Code.
It is a pathetic case through the facts are straight the facts are straight forward. The Appellant of his own volition ran to Mangu Police Station on 2nd June, 1996 and reported that he had stabbed his younger brother Solomon Musa, Male, with a knife. The victim was taken to the Hospital/Clinic where he died shortly thereafter. The Appellant was detained. He was later arraigned before the Plateau State High Court. He pleaded not guilty to the charge against him. The Investigating police officer and a Medical Doctor testified for the prosecution while the Appellant gave evidence for himself. In his judgment delivered on 25th day of October, 2006 the learned trial Judge found the Appellant guilty as charged and the learned trial held:-
“Having found all that I have found, it is easy from the fact proved by the prosecution to deduct or infer from them that the accused, Danladi could only have intended to cause the death of the deceased, or to cause grave and serious bodily harm to him. The law is settled that a man intends the natural consequences of his act or conduct. Therefore, when the accused used a sharp and double edged knife with a pointed end (i.e. Exhibit B) on his defenceless brother by stabbing or pushing such a knife into the chest and the stomach with the kind of force he used, he could only have intended to kill, or to cause the deceased grave and serious injuries. According to the Medical report, Exhibit F, the wound on the chest measured 3 x 2 x 0.5 cm, while that on the stomach caused a protrusion of the deceased intestines measuring 7 x 3 cm. An adult of any background would know that by inflicting such injuries, death would be the probable consequence and not just a likely consequence.
On the whole, I am of the firm view that the prosecution has proved all the essential ingredients necessary to ground the offence of Culpable Homicide punishable with death, against the accused, Danladi Musa and I hold so. Accordingly I HEREBY convict the accused, Danladi Musa, of the offence Culpable Homicide, Punishable with death under Section 221(a) of the Penal Code.”
The Appellant was dissatisfied with the verdict of the lower court and consequently appealed to this court vide Notice of Appeal dated the 15th day of December 2006 and filed on the same date. The grounds of appeal filed are as follows:-
“I, DANLADI MUSA, having been convicted of the offence of culpable homicide punishable with death under Section 221(a) of the Penal Code and now being a prisoner in Jos Prison, Jos Plateau State do hereby give notice of appeal against my conviction (particular of which hereinafter appear) to the court on the following grounds:-
GROUNDS OF APPEAL
GROUND ONE
1. The decision of the lower court is unreasonable, unwarranted and cannot be supported by the evidence.
The lower court erred in law when it failed completely to consider the defence of death occurring in a fight without any intention on the part of the appellant to cause the death of the deceased, which defence was made out by the evidence.
PARTICULARS OF ERROR
There is abundant evidence that the appellant and his deceased younger brother were engaged in a fight which resulted in the death of the deceased without any intention on the part of the appellant to kill the deceased.
Exhibit ‘A’ and ‘D’ supported the defence of the appellant that death of the deceased occurred as a result of a fight without premeditated intention on the part of the appellant to kill the deceased.
iii. Had the lower court considered the defence of death as result of a sudden fight, its decision would not have been the same.
GROUND THREE
The lower court erred in law when it held as follows:-
“As I have already said the above facts cannot in my humble view amount to grave and sudden provocation sufficient enough to have the deceased killed in the manner the accused did. I therefore hold that the defence of grave and sudden provocation cannot avail the accused.”
When there was ample evidence before the lower court to establish the defence of grave and sudden provocation.
PARTICULARS OF ERROR
i. There was evidence form Exhibit ‘A’, ‘D’ and DW1 to establish that the deceased, who was appellant’s brother first abused and slapped the appellant several times.
ii. Abuses and slaps from the deceased who was a younger brother of the appeal was bound to cause grave and sudden provocation, having regard to the culture and Africa generally.
iii. The evidence in support of the defence of provocation was neither challenged nor controverted by the respondent.
GROUND FOUR
The learned judge of the lower court erred in law when he failed to properly and sufficiently consider the defence of self-defence before coming to the conclusion in the following words:-
“on the evidence before me, this defence cannot also come to the aid of the accused.”
Before perfunctorily and casually referring to requirements of the defence.
PARTICULARS OF ERROR
i. The lower court did not give serious consideration of the evidence that the deceased was the attacker.
ii. The lower court ought to have inferred that the decease’s attack on the appellant without prior quarrel was bound to make the appellant believe that his life was in danger.
GROUND FIVE
The lower court erred in law when it held as follows:
“Having found all that I have found, it is easy from the facts proved by the prosecution to deduct or infer from them that the accused, Danladi could only have intended to cause the death of the deceased, or to cause grave and serious bodily harm to him.”
Which conclusion is manifestly unsupportable by the evidence.
PARTICULARS OF ERROR
i. There was no evidence before the lower court from which the inference of the appellant’s intention to kill the deceased or cause him gave and serious bodily harm could be inferred.
ii. None of the prosecution’s witness gave evidence in proof of the appellant’s intention to kill or seriously and greviously harm the deceased.
GROUND SIX
The learned trial court misdirected himself on the facts by holding as follows:-
“An adult of any background would know that by inflicting such injuries, death would be the probable consequence and not just a likely consequence,”
Without any evidence given by the prosecution.
PARTICULARS OF MISDIRECTION
i. There was no evidence before the lower occur to establish the general knowledge on the part of any adult of any background assumed by the learned trial judge.
ii. There was no specific evidence as to whether or not the appellant knew or ought to know that death was the probable, and not just the likely, consequence of his action.
iii. The conclusion of the learned judge of the Lower court was speculative.
GROUND SEVEN
The conclusion of the learned judge of the lower court was speculative.
“On the whole, I am of the firm view that the prosecution has proved all the essential ingredients necessary to ground the offence of culpable Homicide punishable with death, against the accused, Danladi Musa and I so hold.”
Whereas the necessary mens rea was not established.
PARTICULARS OF ERROR
i. The prosecution did not give evidence in proof of mens rea on the part of the appellant.
ii. Exhibits ‘A’ and ‘D’ are not consistent with the appellant’s intention to kill the deceased or cause him grave and serious bodily harm.
iii. The lower court erroneously went into the contents of Exhibits ‘A’ to resolve the doubt created on its mind by the breaches of the Judge’s rules against the appellant.
iv. The lower court relied heavily on its own experience and the demeanor of the appellant to resolve one of the breaches of the Judge’s rule against the appellant.”
The Appellant and the Respondent filed their respective Briefs of argument in this appeal. The appeal was heard on 18th day of April, 2013 when the said briefs of arguments were adopted by the learned Counsel to the parties.
The Appellant restated the background facts to this appeal and formulated four issues for determination in paragraph 2.0.1, of the Appellant’s brief thus:
i. Whether the lower court was not in error when it failed to consider the appellant’s defence of sudden fight which was clearly borne out by the evidence. (Ground 2).
ii. Whether the lower court was right in holding that the defence of provocation was not available to the appellant (Ground 3).
iii. Whether the lower court was right when it held that the appellant intended to cause the dealt of the deceased or grave bodily harm to him, having regards to the totality of evidence (Grounds 5, 6 and 7).
iv. Whether having regards to the totality of evidence before the lower court, the prosecution proved its case against the appellant beyond reasonable doubt to warrant his conviction. (Grounds 1 and 8).
The Respondent however distilled three issues as arising for considerations in the appeal viz:-
1. Whether the Defences of:
(a) Provocation
(b) Sudden fight and
(c) Lack of intention availed the Appellant
2. Whether Exhibit ‘A’ was wrongly admitted and relied upon.
3. Whether the prosecution proved its case beyond reasonable doubt to justify the conviction and sentence of the Appellant.
In his oral submission and amplification of the issues raised and argued in the Appellant G. S. Pwul (SAN) stated that there are eight grounds of appeal with no issue formulated on ground 4. Learned silk abandoned that ground of Appeal. On issue one which learned silk said relates to ground 2, the learned silk reiterated that the death of the victim occurred in a sudden fight between two brothers of the same parents. Attention was drawn to exhibit “D” page 8 of the Record where according to the Senior Counsel, the Appellant stated he was guilty but it was not intentional. The learned silk submitted that the prosecution failed to proof intention that tile prosecution was only able to proof actus reus but failed to proof mens rea. That intention to kill was not established.
On issue 4 – Learned Senior Counsel for the Appellant stated that the learned trial Judge placed reliance on Exhibit ‘A’ as a confessional statement. He submitted that a confessional statement must admit all the elements constituting the offence or all the facts. He placed reliance on the case of OSUAGWU v. THE STATE (2013) 5 NWLR (PART 1347) 360 AT 387.
He also drew attention of this court to pages 76 – 78 of the record where according to the learned silk, the trial court agreed that the Judges Rules were breached. He submitted that the Judges Rules are to be mandatorily complied with in the North under the Criminal procedure Code. He relied on the case of OKEKE v. THE STATE (2000) 10 NWLR (PART 675) 523 at 437 and 438.
The learned silk urged the Court to allow the appeal, set aside the judgment, discharge and acquit the Appellant.
G. D. Fwomyon Esq., the Learned Deputy Director of Public Prosecution in his own oral submission and reaction to the oral submissions of the learned silk to the Appellant informed the Court that three issues were formulated:
ISSUE one is tied to grounds 2 and 3.
ISSUE 2 is tied to grounds 7 and 8 while
ISSUE 3 is tied to grounds 1, 5 and 6.
On the point of law raised by the appellant’s leaned senior counsel concerning mens rea he submitted that mens rea is an intangible thing. It cannot be seen but inferable. That the fight between the Appellant and the deceased victim commenced from a particular place from where they both travelled home. That the fight was separated. That the Appellant went in and came out with a knife which he stabbed the victim in the chest and stomach which Fwomyon Esq., described as most vulnerable place.
On the question concerning the Judges rules and the validity of the confessional statements, Fwomyon Esq., told the court that PW1 and PW2 gave evidence of other facts which made the confession believable. He relied on page 8 of the Record wherein the Learned DDPP said Appellant admitted the crime. That the intention was actually proved. That the Appellant manifested the intention. He is of the view that Okeke v. The State supra no longer represents the state of the law. That it is inapplicable. Learned DDPP finally urged the court to uphold the judgment of the lower court and to dismiss the appeal.
I am of the view that this appeal can best be decided on the issues formulated by the Learned Senior counsel to the Appellant. I will treat the four issues sequentially.
ISSUE ONE
WHETHER THE LOWER COURT WAS NOT IN ERROR WHEN IT FAILED TO CONSIDER THE APPELLANT’S DEFENCE OF SUDDEN FIGHT WHICH WAS CLEARLY BORNE OUT BY THE EVIDENCE (GROUNDS 2).
The Learned silk to the Appellant stated that the defence of sudden fight is provided for in section 222(4) of the penal code. That the Appellant raised this defence of sudden fight as could be seen from the statements of the Accused, the wife of the Appellant and the mother of the Appellant on pages 3, 5, 39 – 42 of Record and in Exhibits “A” and “D”. That the Statements and the evidence of witnesses are consistent that unpremeditated fight ensued between Appellant and his deceased brother described by the learned silk as a sudden quarrel which was in the heat of passion but that the learned trial Judge disbelieve and rejected the evidence. That the trial Judge did not even bother to evaluate the evidence in support of the defence. That a Judge is bound in criminal trials to consider all defences advanced by the accused person, no matter how unconvincing it may appear. Reliance was placed on the cases of NJOKU v. STATE (1993) 6 NWLR (PART 299) 272 and BOLANLE v. STATE (2005) 7 NWLR (PT 925)
43 AT 438.
The learned silk stated that the prosecution did not lead any evidence to challenge the defence of sudden fight and did not contradict it. That the trial Judge ought to have consider the evidence that the Appellant and his deceased younger brother were engaged in a fight which resulted in the death of the deceased without any intention on the part of the Appellant to kill his brother now deceased. He cited the case of OLAYINKA v. THE STATE (2002) 30 NSCQR 149 at 177 per I. T. MOHAMMED, JSC. The learned silk submitted that the failure to evaluate the defence raised by the appellant amount to denial of fair trial relying on the decision of this court per BAA’BA, JCA in the case of KOWA v. MUSA (2006) 5 NWLR (pt. 972) 1 at 39 C-D and the case of AJOSE v. STATE (2002) 7 NWLR (pt. 766) 302 A-B at 326 per ABDULLAHI, J.C.A. That in this case the defence was not negatived by the prosecutor who according to the Learned SAN merely led evidence to establish that the injuries sustained by the deceased was due to the penetration by a sharp object. The learned silk stated that the Appellant did not dispute that the injury was caused by a sharp object, but that Appellant stated that in the course of the fight he merely pushed the deceased and the latter fell “(probably on the sharp object which penetrated into the deceased and caused the injury)”. This according to learned silk shows clearly that prosecution failed to disprove by calling credible evidence to disprove the defence. That this was in breach of Section 36 of the 1999 Constitution.
The Alternative submission of the learned Senior Counsel to the Appellant is a call on this court to carry out the re-evaluation of the evidence and consider the defence of sudden fight raised by the Appellant relying on the cases of FAGBENRO v. AROBADI (2006) 7 NWLR (PT. 798) 172 at 193 E-F per ONNOGHEN, JSC and KOWA v. MUSA Supra.
That the evidence to be evaluated is on record and involves facts only. According to learned silk the facts have nothing to do with the credibility or demeanour of witnesses. The Learned silk asked and urged this court to accept this defence of sudden fight and act upon it. He placed reliance on:-
1. LAWAN v. YAMA (2004) 9 NWLR (PT. 877) 117 at 122-123 and
2. NNORIDIM v. EZEANI (2001) NWLR (pt. 706) 203 in urging the court to resolve issue 1 in favour of the Appellant.
Replying to the above submissions on issue of defence of sudden fight raised by the Appellant, the learned counsel to the State submitted that Section 222(4) of the Penal Code cannot avail the Appellant. That for the defence to be sustained the following ingredients must be present or co-exist viz.
i. Sudden quarrel
ii. Absence of premeditation
iii. No undue advantage taken by the Appellant.
iv. The Appellant did not act in cruel or unusual manner.
That in this case the Appellant took undue advantage in that when the fight was separated, he had time to go into his room, looked for a knife got it and came out to stab the deceased on the chest and stomach. That evidence also showed the Appellant acted in cruel and unusual manner i.e. that his brother slapped him and held him by the shirt, and that was separated and still went in to fetch a knife to stab the deceased.
The State submitted that the action taken by Appellant, “to say the least was ridiculous, utterly cruel and unusual and that in this case the Appellant cannot enjoy the benefit of section 222(4) criminal Procedure Code. That the situation could be otherwise if the Appellant had being in possession of the knife or collected it from deceased while the fight was on. He relied on the cases of MUSA ARANDAM v. BAUCHI NA (1961) NRLR 50 and STEPHEN OJI v. THE QUEEN (1961) ALL NLR 262.
The Learned DDPP agreed that there was no doubt there was a sudden fight between the Appellant and the deceased his brother BUT THAT the big question is whether the Appellant did not have time to cool off his temper? The learned DDPP submitted that the Appellant had time to cool down and indeed had the space to cool down. That this submission was made because the Appellant went into the room to look for a knife to stab the deceased after he had been separated from the fight. That the learned trial Judge appropriately appraised the evidence before her that is Exhibits “A” and “D”, and the statements of Appellant’s mother. He urged the court not to temper with the lower court’s decision that the appellant was responsible for his act under section 221 of the Penal Code.
On whether the appellant acted without intention, the Respondent submitted that there was no doubt that the Appellant had the intention to kill his brother the deceased. That from Exhibit “A” the quarrel between Appellant and the deceased started from ANGWAN MATA before they returned home. That when they reached their house the quarrel continued leading to a fight which was separated by Appellant’s wife and the Appellant’s mother. That the appellant then went in to get a knife with which he stabbed the deceased in a very sensitive part of the body-chest and stomach which according to the Learned DDPP reasonable man of the Appellant’s age would not do and ought to know or had every reason to know that doing so would not only cause grievous bodily hurt but the death of the deceased. That the Appellant should be held responsible for he intended the natural consequences of his action. He relied on that cases of AKPAN v .THE STATE (1994) 140 at 151 and GARBA v. THE STATE (2004) 4 SCNJ 315 at 323. He further relied on the case of IREK v. THE STATE (1976) 4 SCNJ 65 at 67 to submit that the act of the Appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence. That the Appellant attempted at the trial to raise defence of accident even not on his part but that the deceased accidentally fell down. That this was unsuccessful. That the trial Judge on its own looked at the evidence to see whether the defences of provocation and self defence availed the Appellant relying on page 22 of the Record. The learned DDPP submitted that the trial court properly evaluated the evidence and came to proper conclusion that the defences did not avail the Appellant. He relied on the case of UMACH – NEGHINYA v. STATE (2005) ALL FWLR (PT. 259) 1917 at 1927 A-G.
He urged the court to hold that the act of the Appellant was premeditated and he could not contend that he did not intend it.
The learned DDPP submitted that if this court does not agree with him that the appellant was guilty under section 221 of the Penal Code for failure to proof intention, then according to the Deputy Director of Public Prosecution, the Appellant cannot escape culpability that this court can invoke section 224 of the Penal Code against Appellant for culpable homicide not punishable with death.
Now the main contention under issue one is the complaint that the learned trial Judge failed to consider the Appellant’s defence of sudden fight which according to the appellant was clearly borne out by the evidence before the trial court.
The law is settled that there is the presumption of correctness of the judgment of a court including a lower court.
It is also trite law that the evaluation of evidence and ascription of probative value to pieces of evidence led at the trial court is squarely the prerogative of the trial court. Where the duty has been carried out by a court who saw and heard the witnesses and in accordance with the relevant law and procedure, the Appellate court will not interfere to upturn the findings of the lower court.
See the case of THE STATE v. AHMED RABIU (2013) 4 SCM 200 at 212 H – I to 272A where S. S. ALAGOA, JSC had this to say:-
“On the proper attitude of an appellate court to findings of fact by the trial court, this court per Belgore, JSC (as he then was) in Amos Bamgboye A ORS v. Raimi Olanrewaju (1991) 4 NWLR (part 184) 132 held as follows:-
“Once a Court of trial has made a finding of fact, it is no more within the competence of the Appellate Court to interfere with those finding except in certain circumstances. The real reason behind this attitude of “Appellate courts is that the court hearing the appeal is at a disadvantage as to the demeanour of the witnesses in the lower court as they are not seen and heard by the Appellate Court. It is not right for the Appellate Court to substitute its own eyes and ears for those of the trial court which physically saw the witnesses and heard them and is thus able to form opinion as to what weight to place on their evidence.”
See also Chief Victor Woluchem v. Chief Nelson Gudi & ORS (1981) 5 S.C. 291 at 295; Awote v. Owodunmi (1986) 5 NWLR (PART 46) 941.”
See also (1) Chief Augustine Ndulue & Anor. v. Igwe Michael O. Ojiakor & Ors. (2013) 8 NWLR (PART 1356) 311 at 339 D-G per ALAGOA, JSC.
John Nwachukwu v. The State (1986) 2 NWLR (part 25) 765 at 774 D-E where KARIBI-WHYTE, JSC said:-
“The primary function of seeing and hearing the witnesses and evaluating, assessing and weighing the credibility of viva voce evidence lies with the trial court. The secondary function of considering whether the trial court was right does not empower the appellate court to arrogate to itself the role of the trial court whilst hearing evidence. Hence the court of Appeal is not permitted to disturb Judgment on the facts if there was sufficient evidence in support of the finding merely because it would have held differently.”
This court can however interfere with the finding of the lower court if it is shown and found that the trial court failed to discharge its function of evaluation of the evidence before it particularly where what is involved is documentary evidence that has nothing to do with the demeanour or credibility of the witnesses. See
1. FELICIA AKINBISADE v. THE STATE (2006) 17 NWLR (PART 1007) 184 at 211 H where KALGO, JSC held:-
“while I agree with the Court of Appeal that a trial court Judge is the Master of the facts or the evidence given before him and his inference, evaluation or assessment of the evidence should not ordinarily be faulted by an appeal court, such inference, assessment or evaluation of evidence must be properly based on the available evidence given before him and not outside it. See Udediba v. The State (1976) 11 S.C. 133. It is also necessary to ensure that there are no co-existing circumstances which would weaken or destroy the inference, evaluation or assessment.”
2. SUNDAY ABIODUN v. THE STATE (2013) 9 NWLR (PART 1358) 138 at 151 D-H per ONNOGHEN, JSC who said:-
“It is settled law that it is the primary function of the trial court or tribunal to evaluate evidence placed before it, before arriving at a conclusion/decision. It is only where and when the Judge/Court fails to evaluate the evidence or properly evaluate the evidence that an appellate court can intervene and in itself evaluate or re-evaluate such evidence.
As a general rule therefore, when the question of evaluation of evidence does not involve the credibility of witnesses but against the non-evaluation or improper evaluation of the evidence adduced, an appellate court is in a better position as the trial court to do its own evaluation – See DOMA v. Ogiri (1998) 3 NWLR (PT. 541) 246 at 267; Abisi v. Ekwealor (1993) 6 NWLR (PT. 302) 643 etc.
I hold the view that a decision reached by a trial court/tribunal in a trial within trial proceeding to determine the issue as to whether a confessional statement is made voluntarily or not, such as the instant issue under discussion, the evaluation of the court involved is based on the credibility of the witnesses who testified at the trial. The court/tribunal is called upon to resolve the matter by believing one party as against the other, after evaluation of the evidence given by the witnesses. The evaluation in such a case is not based on documentary evidence which would have clothed an appellate court, like the Supreme Court for that matter, with the vires to re-evaluate the evidence. Having regards to the state of the applicable law and the relevant facts of this case, it is my considered view that the court cannot re-evaluate the evidence in the trial within trial so as to arrive at a different conclusion from the reached by the trial Judge and affirmed by the lower court.”
The pieces of evidence profoundly relied upon by the Appellant and which he accused, the trial Judge of failing to evaluate are Exhibit “A” (Statement of the Appellant) and Exhibit “D” (Statement of Suzana Musa MOTHER OF APPELLANT) to sustain the defence of sudden fight resulting in the death of the deceased. This defence enlisted to show that there was no intention on the part of the Appellant to cause the death of the deceased. The vital ingredient in section 222(4) of the Penal Code to sustain the defence of sudden fight is that the accused must have been suddenly provoked by the deceased and the provocation must lead to instant fight leading almost immediately to death of the deceased in the course of the fight. The Appellant has a bounden duty to lead credible or convincing evidence upon which he can rely on for the defence. He can also take advantage of other pieces of evidence before the court that can encapsulate a defence of “sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in cruel or unusual manner.”
See MANU GALADIMA v. THE STATE (2012) 18 NWLR (PART 1333) 610 At 628 E-H TO A-B per GALADIMA, JSC said:-
“Provocation by nature must involve some acts or series of acts done by the deceased person to the accused/appellant which would cause in a reasonable person and actually caused in the accused, a sudden and temporary loss of self control, rendering the accused to be subject or under such violent rage as to make him or her for the moment not to be in control and master of himself. The appellant who did not provide for any evidence in support of the defence he raises cannot as in the case at hand, be given the benefit of the defence. The court can only consider defences which are supported by evidence before it without which there is nothing to assess the veracity thereon. The proof is a matter of fact see the case of Phillip Ekpenyong v. The State (1993) 5 NWLR (Pt 295) 513 at 525.
The accused has the onus of adducing credible and positive evidence to support the plea of provocation raised. Where the accused/Appellant had failed to adduce such evidence as it is with the present case at hand, the trial court has to rely on the evidence before it as adduced by the -prosecution”
It is necessary to begin from an examination of the Appellant’s statement Exh. A and that of his mother Exhibit “D”.
The entirety of the Appellant’s Statement Exhibit “A” is fully reproduced hereunder:-
“I wish to make my statement as follows: That I have a junior brother named Solomon Musa ‘M’ of the Nigerian Prison Service, Pankshin and he came for a weekend on the 31/5/96 and met at home in Mangu. He was with us until on Sunday 2/6/96 at about 1500hr I left home to Angwan Mata in Mangu to take some Local drink Burkutu while at the Angwan Mata I met my junior Brother Solomon Musa, I asked him whether he has returned back from the hospital, because he want out in the morning to go and visit a relation who was admitted in the Hospital, he answered yes and he equally asked me whether I have reached the hospital I told him I was feeling headache so I may go the following day, he again told me they have been discharged, I said if I am going to my working place then I may greet them while discussing with him, he told me about our farm, he said that I am not always serious or I don’t always stay at home to take care of our farm lands. I told him that he is aware when our old man said until next year that they will settle the farm land issue. The farm land in dispute we were on several occasion asked our old man to share the farm for us but he felt reluctant over the matter. There was no any discussion again while we decided to go home together, but he entered the house before me, he met my mother together with my wife sitting and started talking about the same issue and also telling them that I don’t always listen to advises. I answered him that already the old man said we should wait until next year and why he should repeated the topic again to our mother. Immediately he started slapping me on my face and grapped my shirt I also grapped him from there my wife and our mother came and separated us I also saw shirt got torn and I ran into my room and took my knife and I came out and met him where I stabbed him on the chest and also on his stomach when my mother saw that I have wound my junior brother every body started crying and he was rushed to the clinic I equally ran to the Police, station and reported the issue that happened between us to the police, while reported he was already at the clinic, and I was equally detained, while in detention the same evening I heard my junior I wounded later died while receiving treatment that is all I know about this matter.”
There is nothing in the above statement showing any “sudden fight in the heat of passion.” That he Appellant saw his shirt was tom and he tan into his room to fetch his knife, came out and met the deceased “where I stabbed him on the chest and also on his stomach…..” are all very far away from a sudden fight. At the point they grabbed each other’s shirt their mother and wife of the deceased separated them.
The statement of the Appellant’s mother Exhibit “D” rather than support any defence of sudden fight actually roped the Appellant in, portraying the Appellant as the aggressor who actually came from behind to stab his deceased brother to the shock and embarrassment of their mother and the Appellant’s wife. Hear what the mother said:-
I wish to make my statement as follows that on the 2/6/96 at about 1832hrs I was in the house together with my son’s wife Jenifer Danladi, then I saw my son named Solomon ‘M’ of the Nigerian Prison Service Pankshirt stepped into the compound, he started reporting the conduct of his senior brother Danladi Musa to me saying that he doesn’t know why in every occasion while they are in the public his senior brother Danladi should be insulting him immediately he was narrating the story to me, his senior brother also came in and started abusing the junior. During that time we were preparing some food in the kitchen and so they came and engage themselves in fighting by holding themselves. Myself and Danladi’s separated them but got their cloths torn all. Danladi stepped into his room while Solomon was standing aside unknowingly we saw Danladi coming out on the pre he went to change his torn cloth He approached Solomon and immediately I heard Solomon shouted allowed aloud holding his stomach and I shouted, Solomon started to go after him but he used a knife he held and gave to his junior brother again on the chest. I saw myself confused, I held Solomon and tied the stomach with my wrapper for the gushing out of the blood from there I rushed him to the Na Allah Na Kowa clinic Mangu for treatment, but after some minutes died on admission as a result of the knife cuts or stabs which Danladi gave him. That is all I know about the matter. But I don’t know what exactly might have happened between there in the previous times. That is all I know I did not know the where about of Danladi again but only heard that he is in the Police Station, Mangu.”
From the mother’s statement the following emerged:
(a) The deceased reported the Appellant to their mother, to the effect that Appellant was always insulting him in public.
(b) That the Appellant came in and heard deceased reporting him to their mother and Appellant started abusing the deceased.
(c) That they later came and engaged themselves in a fight by holding themselves.
(d) The mother said “myself and Danludi’s wife separated them but got their cloths torn all.”
(e) Appellant stepped into his room while Solomon (deceased) “was standing aside unknowingly we saw Danladi coming out on the pre he went to change his torn cloth. He approached Solomon and immediate I heard Solomon shouted aloud holding his stomach which I glanced and I spotted a deep cut on his stomach and I shouted, Solomon started to go after him but. He used a knife he held and gave to his junior brother again on the chest.”
All the above point irresistibly to the fact the Appellant took undue advantage, acted, in cruel or unusual manner. The Appellant’s statement relied upon belied the defence of sudden fight. His oral confession at the Police Station also point directly to his guilty that he wickedly and maliciously stabbed his brother twice knowing full well that grave or grievous bodily harm would ensue and could lead to his brother’s death. All the evidence both oral and documentary are directly against the Appellant.
It must be placed on record that the submission of the appellant that the prosecution failed to prove intention is unfounded. The prosecution did prove intention of the Appellant to kill his brother. There is nothing in Exhibits “A” and “D” to support lack of intention to kill or a defense of sudden fight. I agree with the submission of tire learned DDPP Fwomyon Esq., that it is the law that a person intends the consequences of his action.
Tire learned trial Judge painstakingly considered and evaluated the defence(s) raised by the Appellant and those not even raised by him before coming to the conclusion that the Appellant was guilty as charged. The Appellant was also of the view that the trial Judge did not consider the defence of accident raised by him but that instead the trial Judge placed a burden on him to proof it when the prosecution did not, according to appellant, debunk the defence raised by Appellant.
I have carefully gone and read through the record of appeal and I found as a fact that the learned trial Judge was actively conscious of all defences that were likely to enure for the Appellant’s benefit and he ruminated over them in his findings. On pages 84-85 the learned trial Judge said:
”On careful perusal of all the evidence there is nothing that supports the assertion that the deceased fell down accidentally and injured himself. Instead, there is cogent and convincing evidence that the accused stabbed the defenceless Solomon twice with a lethal and wicked looking knife on his chest and on the stomach, I have no doubt in my mind that this was what happened. I also have no doubt in my mind that the accused made up this lie in the hope of setting up the defence of accident in order to avoid the punishment due to him. I think I can safely hold that the defence of accident cannot avail the accused in that the defence is based on a lie and on none existents facts. I hold, accordingly.
Just as in the case of the defence of the accident, learned defence Counsel did not raise the defences of provocation and self defence. But as required by Law I have taken a careful look at the evidence to see whether any of these defences are available to the accused. In his evidence the accused showed the deceased as the aggressor in that he said it was the deceased that first slapped and held him by his shirt. Assuming that we the case, was the act of slapping and holding the shirt of the accused sufficient to provoke the violence the accused unleashed on the deceased? My answer is a definite one. Under our law, for the defence of grave and sudden provocation to come into plaintiff favour of an accused, the retaliation must be proportionate to the provocation. See the case of Nnamah v. State (2005) 9 NWLR (pt. 929) 147 at 163 paragraph C
In the case before me, all the accused said in his evidence is that the deceased who was his junior brother started slapping hint then grabbed his shirt. Accused grabbed the deceased to and they fought. The mother and wife of accused then separated them. Moreover the accused himself stated in chief as follows:-
“My brother did not offend me. It was when he came home and started talking to me angrily that we fought. When we fought and were separated I left the scene but he followed me again and held my shirt.”
As I have already said the above facts cannot in not humble view amount to grave and sudden provocation sufficient enough to have the deceased killed in the brutal manner the accused did. I therefore hold that the defence of grave and sudden provocation cannot avail the accused.
As to whether the accused has right to self defence. On the evidence before me, this defence cannot also come to aid the accused. For the defence to be of use to him, the accused must show he was in the fact of threat to his life by the deceased. The Court of Appeal stated the Law with regards to self defence in the following words:
“The appellant, in order to avail himself of the defence must show that his life was so much endangered by the act of the deceased that the only option open to him to save his life was to use any such force on the deceased as is necessary even though such force may cause death or grievous harm. He must however show that he did not want to fight and was at all material time prepared to withdraw.”
See EHIBOGWU v. THE STATE (2001) 4 NWLR (PT 703) 267 at 278 paragraph B & C
There is noting in the evidence available to suggest that the deceased in anyway acted in a manner to endanger the life of the accused”
The above findings cannot be faulted. Consequently ISSUE ONE is resolved against the Appellant.
ISSUE 2
WHETHER THE LOWER COURT WAS RIGHT IN HOLDING THAT THE DEFENCE OF PROVOCATION WAS NOT AVAILABLE TO THE APPELLANT
The Appellant proceeded under this issue by referring to Section 222(1) of the Penal Code as providing for the defence of provocation. That the apex court considered tire defence in many cases including the cases of OBAJI v. THE STATE (1965) NWLR 282 and AKANG v. THE STATE (1971) 1 ALL NLR 47 at 49 per COKER, J.S.C.
The learned Senior Counsel to the Appellant then quoted what the learned trial Judge said on page 85 of the Record rejecting the defence of provocation. According to the Learned Senior Counsel to the Appellant there was ample evidence of grave and sudden provocation relying on the statements made by witnesses to the Police by Appellant’s wife and mother as well as Appellant’s statement Exhibits “A” & “D” and what the learned silk tagged “unchallenged testimony of DW1” which he said supported grave and sudden provocation as envisaged under Section 222 of the Penal code.
That it was established before the lower court that the deceased who was the younger brother of tire Appellant yelled, insulted and slapped the appellant several times. That the deceased had come from an outing and started talking angrily to Appellant and was nagging and fight ensued thereby.
The learned silk is of the opinion that our culture as Nigerians detests a situation where a younger brother will behave disrespectfully to an elderly brother.
The learned silk continues thus:-
“In the hierarchy of respect and honour among Nigerian people, our parents are next to God, the creator. Closely followed by these persons (our parents), are the older ones by chronology of birth. The elderly ones are revered by the younger ones and it is considered an abominable act to disrespect these people. In some rare cases, it is regarded a sacrilege for a younger one to disrespect his elders. The norm is such that when an elder slaps or hits his younger one, the latter should not retaliate, let alone being the first to hit his elder brother or sister. This is enough to ignite rage in a typical African man.” (paragraph 5.05 of Appellant’s Brief of Argument).
That the evidence of provocation was tire insults and slaps which according to the learned silk was not challenged. He relied on the case of UWAKWEGHINYA v. STATE (2005) 9 NWLR (PT.930) 227. That the fact that it was the younger one in this case that first slapped the Appellant was enough to make any man of appellant’s caliber lose his self control and bring hell down on earth. And that in deed the appellant lost his self control. That Appellant merely reacted to the provocative and abominable act of his deceased brother and that the Appellant did it in “contemporaneous feeling of anger caused by the circumstance of the occasion” That the key elements of provocation are:-
(a) Was the act done in the heat of anger?
(b) Was there a reasonable time lag for the passion to cool?
The continuous argument of the Appellant was that he was not on a vengeance, wicked or malicious mission but was merely provoked by the acts of his deceased younger brother which he found intolerable. The further argument is that the test to be adopted is not an objective one based on tire standard of a reasonable man but against the subjective standard of the accused person. Reliance was placed on the case of AHMED v. STATE 1999 1 NWLR (Pt. 612) 9 (SIC) at 647 per KALGO, JSC.
The Learned silk stated that the Appellant here is a mere mechanic with no formal education, an African man in thought and action that a slap from the younger brother was enough to ignite the appellant’s rage with respect to the norms and culture in Africa and Nigeria in particular. That the insults could amount to provocation relying on tire case of UKWAEKWEGHINYA v. THE STATE (2005) 9 NWLR (PART 930) 227 at 236 – 237.
The alternative submission here was, assuming, which the Appellant did not concede) that the appellant stabbed the deceased with the knife (Exhibit B) which the learned silk described thus:-
“……as erroneously reached by the learned trial Judge the defence of Provocation would still availed the appellant as
“used by an accused is irrelevant” so long as the act was done in the heat of passion”
Relying on the case of UWAKWEGHINYA v. STATE supra p. 249 – 250.
In reply on this issue of provocation the learned Deputy Director of Public Prosecution, Fwomyon Esq, dwelt heavily on Exhibit “A” the statement of the Appellant. The fact that it was the appellant himself who reported himself to the police that he stabbed iris brother. The fact that Appellant’s mother and his wife separated Appellant and his deceased brother when they were fighting. The fact that the medical Doctor PW2 confirmed that the wound/injury sustained by the deceased could only have been caused or sustained by a sharp penetrating object, such as a knife.
The State submitted that in view of all the facts stated the defence of provocation could not avail the Appellant. That before an accused can succeed in the defence of provocation it must be shown that the retaliation was proportionate to the provocation that in this case tire attack on the deceased was intentional.
Relied on the case of UWACHWEGHINYA v. STATE (2005) ALL FWLR (PT 259) 1911 AT 1927 F – C.
This court held that an act of revenge not done in the heat of passion cannot successfully form the basis of a defence of provocation. That where an accused had sufficient time to cool down before doing the act complained of the defence of provocation will not avail him. He relied on the cases of CHUKWU v. THE STATE (1966) NMLR 274; ASHIMIYU v. THE STATE (1982) 10 S.C. 1 and AKANG v. THE STATE (1971) ALL NLR 46. That what the Appellant did to the deceased cannot be described as a natural and justifiable reaction to what the deceased did to him. That it was more of a revenge. That it was not natural or sudden. That there was time and space for Appellant to cool down. He went to his room, looked for a knife and came out to stab his brother on the chest and stomach which the State described as very sensitive organs of the body. He relied on the case of SHANDE v. THE STATE (2005) OCCR, Vol. 31. On ingredients that must co-exist before an accused can sustain the defence of provocation. He also relied on OLADIPO v. THE STATE (1993) 6 SCNJ 233 & 239. That the Appellant did not establish the defence of provocation and that in any event the success of the defence of provocation does not excuse the killing, only reduces the offence from punishment with death to manslaughter. He relied on the cases of APUGO v. STATE (2006) ALL FWLR (PT 341) 1253 at 1276 B-C and AJUNWA v. STATE (1988) 4 NWLR (PT 89) 380. He urged the court to resolve the issue against the Appellant.
Now the act of provocation levied against the deceased was that he came home, was yelling on his brother Appellant. Appellant was slapped him before a fight ensued. It is true that provocation by words or insult alone may be an ameliorating antidote to reduce the offence of capable homicide punishable with death to that of culpable homicide not punishable with death.
In all cases of provocation the degree of retaliation used by the appellant in stabbing the deceased must be proportionate to the provocation offered by the deceased. See G. T. OLADIRAN v. THE STATE (1986) 1 S.C. 153 at 171 per KAZEEM, JSC.
In order for an Appellant or Accused to take the benefit under section 222(1) of the Penal Code the Accused has the burden to prove such provocation see the case of MANU GALADIMA v. THE STATE (2012) 18 NWLR (PART 1333) 610 at 627 H at 628 A-B where AKA’AHS, JSC said:-
“A plea of provocation does not exculpate the perpetrator of the act from blame but is only a mitigating factor when it comes to sentencing. For a plea of provocation to avail the accused, the burden is on him to establish;
(a) The act of provocation was grave and sudden.
(b) He must have been deprived of the power of self control and;
(c) The mode of resentment, degree or extent of retaliation must bear a reasonable relationship or be proportionate to the provocation offered.
The burden is discharged on a balance of probabilities and not on proof beyond reasonable doubt. It is true that the words alone can constitute provocation but this depends on the actual words used and their effect or what they mean to a reasonable person having a similar back ground with the accused person”
The Appellant was unable to pinpoint what particular word or insult was said or passed to him both in his statement Exhibit A and his oral evidence before the court. The only thing near it was that the deceased was talking angrily to him and was slapping him. On page 40-41 of the record the Appellant said:
“He went to the Hospital to greet somebody i.e. in Mongu. He came home and met us, myself, one of my father’s wives and my wife. He had come back from an outing. He came home and was talking angrily. He was talking to me angrily. He was asking me why didn’t I go to visit and greet at the Hospital and I told him I didn’t I go to visit and greet at the Hospital and I told him I didn’t know who the patient is. I said that if I know who the patient was, I would have gone. As he was talking, he slapped me and it was from there we started fighting with him. As we were fighting, my wife and out mother came and separated us. When I said out mother, I mean our father’s wife. When I was granted bail, I went home and discovered she had died. My brother did not offend me. It was when he came home and started talking to me angrily that we fought. When we fought and were separated, I left the scene but the late Solomon followed me again and held me by my shirt. I removed his hand from my shirt and he fell down. When he fell on the ground, I later heard that he sustained injuries. When I learnt that he fell and sustained injuries I went and reported myself to the Police.”
At the highest, as could be seen from the above evidence of the appellant the fight had been over. Appellant said he left the scene. That the Deceased followed him, held his shirt and he appellant removed his hand from his shirt and deceased fell down. It was later he heard his brother sustained injuries when he fell down. This evidence is in sharp contradiction to his statement Exhibit “A” that stated:-
“Immediately he started slapping me on my face and grapped my shirt also grapped him from there my wife and our mother came and separated us. I also saw my shirt got torn and I ran into my room and took my knife and I came but and met him where I stabbed him on the chest and also on his stomach when my mother saw that I have wounded my junior brother everybody started crying and he was rushed to the clinic I equally ran to the Police Station and reported the issue that happened between us to the Police…..”
The high point of his statement was that upon being separated from the fight, Appellant now saw that his shirt was torn. He then ran inside to pick his knife and plunged same into the chest and stomach of his brother. I am of the solemn view that there was no justification for it. The gravity of his retaliation or reaction to the fight or his shirt that got torn was highly disproportionate to what happened between him and his brother. He had time to cool down. Again Exhibit “D” relied upon by him – Statement of their mother – was against the Appellant. The mother stated that she, the Appellant wife and the deceased had almost forgotten the fight when they noticed Appellant had gone to fetch a knife to stab his younger brother who was no longer in fighting mood. The mother even said they thought appellant went to change his cloth that was torn. Deceased shirt was torn also. From the statement of the mother it was when she and Appellant wife were separating them that the shirts got torn and not that deceased tore Appellant’s shirt. The statement of the mother showed that Appellant did it deliberately and without any justification.
The allusion to African culture not tolerating a younger person’s insult to an elderly person apart from being extraneous to the facts contained in the Record of Appeal cannot hold sway for the Appellant because his action did not come within the penumbra of Section 222(1) of the Penal Code. If the African Culture of self and mutual respect for one another as our brother’s keeper should be stretched to a higher level an elderly brother is expected to tolerate insult even from his younger ones and behave maturely, to exhibit the leadership qualities within that elderly brother so that the younger brother would now realize that what he did in passing insult or being rude to his elder brother was uncalled for. As a matter of fact such elderly Brother ought to report the younger brother to their Head of family, their mother or any other respectable member of their family who would now settle the quarrel between the parties amicably and at the same time where necessary asking the younger one to apologize to his elder brother.
There is also the defence that because he is a mechanic he may not be able to stomach insult from his younger brother. I am of the firm view that by the nature of his work and being a 36 years old man at the time of the incident Appellant surely knew that using a knife on his brother can send him to an early grave. The Appellant must have seen chicken or goat or other animals being slaughtered with knife. So he knew the full implication of stabbing human being with a knife.
What the Appellant did cannot be assuaged by defence of provocation because the defence was not available to him having regard to the facts in evidence and the circumstances of the case now on appeal. He did it out of sheer recklessness and cruelty or wickedness. Therefore on the issue of provocation I find that the learned trial Judge perfectly evaluated the defence based on the evidence before him and was amply justified when he held on page 85 of the Record thus:-
“As I have already said the above facts cannot in my humble view amount to grave and sudden provocation sufficient enough to have the deceased killed in the brutal manner the accused did. I therefore hold that defence of grave and sudden provocation cannot avail the accused.”
There is on scintilla evidence on record to support Appellant’s defence of provocation.
The appellant knew the consequences of his action and that was why he ran to the Police to report what he did see GALADIMA v. STATE supra page 627 F-G per AKA’AHS, JSC.
Issues 2 is also resolved against the Appellant.
ISSUE THREE
WHETHER THE LOWER COURT WAS RIGHT WHEN IT HELD THAT THE APPELLANT INTENDED TO CAUSE THE DEATH OF THE DECEASED OR GRAVE BODILY HARM, HAVING REGARDS TO THE TOTALITY OF THE EVIDENCE (Grounds 5, 6 and 7).
The Learned Senior Counsel for the Appellant restated the three elements that must be proved to establish the offence of culpable homicide punish able with death. That the three elements must co-excise to ground a conviction. That the first two elements constitute the actus areas reus while the 3rd element constitutes the mens rea. The appellant stated that from the facts of the case the actus reus may not be in dispute in view of the fact that the appellant did not deny that his brother with whom he fought earlier later died in the Hospital. Tire bone of contention according to the Appellant is that the necessary intention (the mens rea) was not present in view of the evidence and facts before the lower court particularly the evidence of Appellant on page 40 line 6-10 of the Record of Appeal where he said:-
“Solomon Musa is my younger brother. We lived with him for many years. We did almost everything together. There was nothing that caused any quarrel between us….”
That the requirement of intention to cause death under section 221 of Penal Code is a salient one that cannot be dispensed with. That there was no justification for the lower court Judge to come to the conclusion that Appellant intended to kill his brother. That none of the prosecution witnesses gave evidence of intention to kill but that the “appellant never bargained for what happened when he became an actor on a stage already prepared by unforeseen and uncontrollable circumstances”
That Appellant was shocked to learn that his brother died. Appellant according to him fainted in the cell. That by virtue of Section 16 (2) of the Evidence Act LFN 1990 intention to commit a particular crime must be proved to ground conviction. Reliance was placed on AMAYO v. THE STATE (2001) 18 NWLR (PT 745) 251 at 280 per UWAIFO, JSC.
That the peculiar facts of each case must be taken into consideration in arriving at just conclusions. He relied on the case of AHMAD v. STATE (1999) 7 NWLR (PT 617) 641 at 684 per KALGO, JSC.
The Learned Senior Advocate of Nigeria for the Accused was of the view that the learned trial Judge misdirected himself in coming to the conclusion that an adult of any back ground would know that by inflicting such injuries death would be the probable consequence and not just the likely consequence as speculative.
He relied on the case of E. NNEJI & ORS v. CHIEF N. CHUKWU (1996) 10 NWLR (Pt 776) 612 at 619-620 per OGBUEWU, JSC.
That from the facts of the case the appellant did not intend to fight his younger brother let alone the death which resulted therefrom and the contrary, according to Appellant, has not been proved by tire prosecution relying on the cases of OYIRIMBA v. STATE (202) 11 NWLR (PT 777) 83; A-G OYO STATE v. FAIRLAKES HOTELS LIMITED (1989) 5 NWLR (Pt. 121) 225 and AHMED v. STATE supra. The learned silk rounded up his this issue thus:-
“Your Lordships are urged to hold that the Appellant did not cause the death of the deceased with any guilty intention.”
The Respondent argued to the contrary. The Respondent stated that the Appellant acted with the intention to kill his brother. That Exhibit “A” shows the Appellant as having all the intention to kill his brother. That the Appellant knew that stabbing his brother will not only cause grievous bodily hurt but death of the deceased. That the appellant intended the consequences of his actions and must be held responsible for it. The State wondered on what could be said of a man who carried a knife, stabbed his fellow brother with it in very vital parts of the body such as chest and stomach other than he intended the natural consequences of his act. Reliance was placed on the cases of:-
1. AKPAN v. THE STATE (1994) 140 at 151.
2. GARBA v THE STATE (2004) 4 SCNJ 315 at 323
3. IREK v. THE STATE (1976) 4 SCNJ 65 at 67 and
4. UWAEKEAGHIYA v. STATE supra 192 A-F
The State urged the court to hold that Appellant’s act was premeditated and that he had the intention of killing his brother.
The learned silk for Appellant had in his oral argument in amplification of issues in Appellant’s Brief contended that the prosecution failed to proof intention. That the only thing the prosecution may be said to have proved was actus reus and not the mens rea. That intention to kill was not established. That Appellant in his evidence stated he had no intention of killing his younger brother.
The prosecution in its reaction urged tire court to take the Appellant as having intended the consequences of his action that he knew that death would result from the act of stabbing which he submitted to be the mens rea,
It is settled law that in a charge of culpable homicide pursuant to section 221 of the penal Code as to actus reas reus and mens rea credible evidence of a single witness is sufficient to convict the Accused.
Now mens rea is wrapped up in the doctrine that a person desires the probable consequences of his action.
See ABDU MOHAMMED v. THE STATE (1991) 7 SCNJ (PART 1) 114 at 119 where OMO, JSC has this to say:-
“There is no doubt that the evidence/mens rea required to ground a conviction on either subsection is different, the requirement of subsection, (a) Being higher than that of subsection (b) But what is necessary to secure a conviction under both sub-sections is not corroboration but evidence of the right probative value”
OLATAWURA, JSC on his part in the same decision at page 127 of the report said:-
“Mens rea simply means a guilty mind. Knowledge is simply a know fact or a belief. The knowledge within the contemplation of Section 221(b) of the Penal Code is a result of the act that must follow what the accused did, whereas the intention within section 221 (a) is the act contemplated by the accused to bring out a desired result. It is for this reason that a man is presumed to intend the natural consequences, of his act. A man who inflicted matched cuts on another cannot be heard to say he had no intention to kill or at least cause bodily harm. The knowledge that death will result when a man decapitated another person cannot be described as improbable.”
The intention of the Appellant was clearly embedded in his gruesome stabbing of his younger brother with a knife Exhibit “B” first on the chest and secondly on the stomach. This much he admitted in his statement. Exhibit “A”. The said Appellant’s statement contained all the ingredients of the charge or offence of culpable homicide punishable with death. Though he made his statement two days later the Appellant nonetheless confessed to the stabbing of deceased which eventually led to the death of the deceased. It must be remembered also that he had earlier told PW1 at the Police Station Mangu on 2/6/1996 immediately after he committed the offence PW1 and testified thus:-
“My names are Sgt. Waksu Kenbe. I am attached to Nigerian Police, Nassarawa Gwong Jos. I am No. 143005. I live at Nassarawa Gwong Jos. I know the accused person. I know why he is in court. On 2nd June, 1996, I was on duty as an investigator in Mangu Division when at about 1940hrs the accused rushed to the Mangu Police Station and reported that he had stabbed his junior brother with u knife. The name of the brother he said was Solomon Musa. From there he was detained. I detained hint. An entry of causing grievous hurt was made. I book and immediately proceeded to the scene of the crime. I got there. The victim was rushed to a clinic named Allah na Kowa. I also proceeded to the clinic where the deceased died shortly.”
The defence counsel did not ask the PW1 a single question on the above quoted evidence of PW1 who was the investigation Police Officer in the case. The Cross Examination was to enable PW1 to further confirm his evidence. The cross examination went as follows:-
“It is correct that the deceased died on the 2nd June, 2003 (sic) the Statement of the accused was recorded about two days after the incidence. None of the members of the accused family came to the station when the accused reported to my knowledge. But after two days the wife and the mother of the accused came on my invitation to give their own statements.”
There was no suggestion to the PW1 that the evidence he gave was false or that the accused never made Exhibit “A”. Exhibit “A” was admitted without any objection and no question was asked on it. See pages 15-22 of the Record.
There is no doubt whatsoever that the prosecution actually proved actus reus and mens rea in this case thereby proving all the elements constituting the charge against the Appellant.
Issue 3 is resolved against the Appellant.
ISSUE 4
WHETHER HAVING REGARDS TO THE TOTALITY OF EVIDENCE BEFORE THE LOWER COURT THE PROSECUTION PROVED ITS CASE AGAINST THE APPELLANT BEYOND REASONABLE DOUBT TO WARRANT IT IS CONVICTION (GROUDS 1 & 8).
The Appellant harped a lot under issue four that the Respondent did not prove the charge against him in accordance with Section 138 of the Evidence Act Cap 112 LFN 1990. That the principal ingredients of the offence of culpable homicide punishable with death which is the need to proof that the Appellant has intended to kill the deceased was not established.
The law is settled that there are three essential ingredients or elements of offence of murder which must be cumulatively established against a murder accused in order to secure conviction. The position has been stated and restated in numerous cases. See SOLOMON ADEKUNLE v. THE STATE (2006) 14 NWLR (PART 1000) 717 at 736 H 737 A where Mohammed, J.S.C. said:-
“From a long line of the decisions of the court, it is settled beyond controversy that to secure a conviction on a charge of murder the prosecution must prove: –
(a) That the deceased had died,
(b) That the death of the deceased was caused by the accused,
(c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequences.
Similar position was taken by Supreme Court in respect of charge under section 221 of the Penal Code where Peter Odili, JSC. In the case of EMMANUEL OCHIBRA (2011) 17 NWLR (part 1277) 663 at 684 had this to say:-
“The next question to tackle is whether the conditions under which an offence of culpable homicide punishable with death under section 221 of the penal code under which the appellant us accused was convicted and sentenced. The conditions to be met are thus:-
(a) That the deceased had died;
(b) That the death of the deceased was caused by the accused; and
(c) That the act or omission of the accused which accused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.”
On page 688 MUHAMMAD, JSC said:-
“In the establishment of a Criminal offence, with which an accused person stands trial before a trial court, especially a capital offence such as culpable homicide, for which the appellant stood trial at the trial court, the law requires that, that offence must be proved beyond reasonable doubt by the prosecution (section 138 of the Evidence Act). The rudiments factors, ingredients or elements which the law places on the shoulders of the prosecution to so prove are as follows:-
1. that death of s human being had actually taken place,
2. such death was caused by the person accused,
3. the act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as:
(a) the accused knew or had reason to know that death would be the probable and only likely consequence of his act or;
(b) the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.”
The law needs no restatement that before an accused can be convicted of any offence the ingredients of the offence must be proved against Accused and shown to have fallen with the four walls of such ingredients of offence charged. In the case of SEBASTIAN S. YONGO & ANOR v. COP (1992) 8 NWLR (PART 257) 36 AT 50 G, KUTUGI, J.S.C. (later CHIEF JUSTICE OF NIGERIA rtd.) said:-
“In criminal proceedings the onus is always on the prosecution to establish the guilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.”
My Lord, OLATAWURA, J.S.C. said similar thing in the case of M. O. AMADI & ORS v. THE STATE (1993) 8 NWLR (PART 314) 644 at 663 H to 664 A THUS:-
“It is unsafe to base a conviction on speculative findings. Such findings are no longer findings of facts. Quite apart from this before a trial court comes to the conclusion that an offence had been committed by an accused person, the court must look for the ingredients of the offence and ascertain critically that the act of the accused come within the confines of particulars of offence charged.”
In effect the Court will not begin to inquire whether an accused is guilty of a crime until it has been established that a crime has been committed. See the State v. Omada Odobor (1975) 9 – 11 S.C. 69 at 78.
See also OLAYINKA AFOLALU v. THE STATE (2010) 16 NWLR (PART 1220) 584 at 612 – 673.
The Appellant wants this court to believe and hold that Exhibits A and D which are statements of the Accused and his deceased Mother Zusana Musa are not consistent with Appellant’s intention to kill his younger brother as according to Appellant those statements are not in conformity with the Judge’s Rules which expect that statement of Accused must be taken in the language in which the Accused narrates his story to the Police Officer in charge of his investigation and then translated to English Language which is the language of the court. The appellant is to some extent right. It is desirable that statement obtained from an accused should follow that procedural demands of Judges Rules but the failure to comply with it or ensure its observance will not vitiate a confessional statement or other document made by an Accused person. See DEMO OSENI v. THE STATE (2011) 6 NWLR (PART 1242) 138 at 165 where this court per ABDULLAHI, JCA, held as follows:-
“In the case of Abayomi Olalekan v. The State supra at page 799 the apex court in situation akin to what we have in hand held thus:-
“Statement should be, whenever practicable, recorded in the language which they are made. This is practical wisdom directed to avoid technical arguments which could be raised.
It is not an invariable practice but to ensure correctness and accuracy of the statements made by an accused person. And though it is desirable that a statement should be made in the language that it was made. It is not ipso facto inadmissible merely because this practice was not followed”
The case of GOZIE OKEKE v. THE STATE (2000) 10 NWLR (PART 675) 423 heavily relied upon to show that Judges Rules have been modified and adopted as part of criminal procedure Code with title “Criminal Procedure” (Statements to Police Officers) Rule, 1960 does not support the case of Appellant. This court per Olagunju, JCA of blessed memory said on page 437 G – H to 438 A-B thus.
“On administration of caution as a requisite of admissibility of evidence in criminal trial, the requirement that caution must be administered to one suspected of committing a crime before his statement is made to or recorded by one who is accredited to do so is a procedural device in aid of administration of justice as part of administrative directions to the police and kindred organizations that are vested with the powers to investigate crime. Historically, the requirement to administer caution stemmed from the Judges’ Rules in England which were formulated for the guidance of the police. Statement made or recorded in breach of the rules may be rendered inadmissible in evidence but, strictly speaking, the rules have no force of law as the decision to admit in evidence such statement, whether documentary or oral, is at the discretion of the individual judge. See R. v. Viosin (1918) 1K. B. 531; Police v. Quarshie op. Cit.; R. V. Ugwuogo (1943) 9 WACA. 73; R. v. Bass (1953) 1 Q.B. 680; and Onungwa v. The State (1976) 2 S.C. 169. In sum, the judges’ Rules are applied in Nigeria as part of the English Laws received and assimilated as part of our laws except in the Northern States where they have been modified and adopted as part of the Criminal Procedure Code with the title “Criminal Procedure (Statements to Police Officers) Rules, 1960″.
With the state of the law as here examined there is nothing inhibiting the learned trial judge from acting on the oral confessional statement of the appellant made to the Police on 29/9/91 if he had chosen to do so not with standing the fact that no caution was administered to the appellant before he made the confession. The belief by the learned trial Judge of the evidence of the 6 PW to whom the appellant made the confession settles that point. But as I noted at the beginning of my examination of this issue the guilt of the appellant was based on the three confessional statements he made to the police on 28/9/91, 29/991 and 7/10/91 without drawing on the oral confession of 29/9/91 for corroboration as the learned trial judge was entitled to do.”
In any event Exhibit “A’ upon perusal by me showed that the Appellant was duly cautioned in English Language. He duly signed the cautionary words and of his own volition volunteered the statement Exhibit “A”. He also signed at the end of the Statement which signature duly authenticated and constituted direct acknowledgment of the offence the Appellant was charged. There is nothing on record to show that the Appellant complained to the IPO, PW1 or anyone for that matter that he could only speak or write in Hausa Language.
He is taken and deemed to understand English Language. The IPO testified also that on 2/6/1996 the Appellant of its own volition rushed to the Police Station in Mangu and told the PW1 he had a quarrel with his younger brother, stabbed him on his chest and stomach and that his wife and mother were attending to him. The investigation of PW1 confirmed the report made by Appellant. The 1st PW testified of all these and was not cross examined by the Appellant’s learned counsel. Failure to cross examined the 1st PW established as true all the pieces of evidence given by PW1 which were all to the effect that the Appellant was responsible for the death of his brother Solomon Musa.
SEE: ANTHONY OKORO v. THE STATE (2012) 4 NWLR (PART 1290) 351 at 373 where RHODES-VIVOUR, JSC had this to say:-
“The above are very material facts that ought to have been subjected to cross examination but they were not challenged by cross examination …………….. So where a witness, PW1 testifies on a material fact in controversy (i.e. who killed her husband) the other party should if he does not accept PW1’s testimony as true cross examine her on that fact or show that he does not accept the evidence as true.
In the absence of cross-examination, the court is at liberty to interpret his silence as an acceptance that the Appellant does not dispute the material fact stated by PW1.”
The same is true of the Appellant’s failure to cross examine PW1 on material facts in this case. The Appellant admitted even in paragraphs 4.0.4, 5.1.1-5.11.2 and 6.0.3 of the appellant’s Brief of Argument as follows:-
“4.0.4. The appellant, by his evidence raised the defence of sudden fight. Please see the Statements the accused person and those of his wife and mother, on pages 3, 5 and 39-42 of the record of appeal. See also Exhibits “A” and “D”. These exhibits and the evidence of the appellant established that a fight broke out suddenly between the deceased and the appellant.
5.1.1. Going by the facts of the case, the appellant upon being insulted and slapped severally but his deceased brother became angry and for the time being, lost control over his temperament. The mother and the wife came to separate them and it was after that the deceased held his cloth again before the appellant pushed him and he sustained injuries.
5.12…………. he was merely provoked by the acts of his deceased younger brother which he found intolerable.
6.0.3. From the facts of the case, the actus reus may not be in dispute in view of the fact that the appellant did not deny that his brother with whom he fought earlier, later died in the clinic……..”
And after stating the ingredient of the offence the appellant under issue 4 paragraph 7.0.5 said:
“This third ingredient, the prosecution has failed to prove and it cannot be rightly said that the prosecution has proved its case beyond reasonable doubt.”
In other words the Appellant is not and not deny that:
(a) The younger brother died.
(b)The death of the deceased younger brother resulted from the act of the Appellant.
In the face of all these I am of the view that the undulating efforts of the Appellant to discredit Exhibits “A” and “B” cannot hold sway. It is an effort in futility.
The Appellant did not inform the court even though represented by a Legal Practitioner, that Exhibit “A” was not made by him or that he spoke Hausa to the IPO or that he was an illiterate. He never complained that he was forced to make the statement. Exhibit “A”. Appellant and his learned counsel did not object to admissibility of Exhibit “A” when it was sought to be tendered.
It is trite law that the appropriate time to object to a document or statement made by an accused person on ground of inadmissibility or any other vice or inadequacy, is at the time or point when the prosecutor seeks to tender the statement in evidence and not at the Appellate court. See JOSEPH UBI IGIRI v. THE STATE (2012) 16 NWLR (PART 1327) 522 at 545 E per CHUKWUMA-ENEH, J.S.C. who held:-
“The objection to a confessional statement is required to be raised at the tendering of the confessional statement. This is ordinarily so, during presenting of the prosecution’s case at the main trial.”
It is also apposite here to refer to the case of F.R.N. v FAITH IWEKA (2011) 12 (Pt. 2) SCM 213 at 220 G-I where MUKTAR, JSC (now CJN) held:-
It is on record that the learned Respondent’s Counsel did not raise any objection at the point of tendering the statement. It was after the confessional statement had been admitted that the respondent retracted the statement in the course of giving evidence in his defence. This I think was an afterthought, for if she was uncomfortable with the statement, the point of tendering and admissibility should have been when to object.
It was late in time to have retracted at the stage she did the confessional statement not having been objected to was admissible as evidence, and the learned trial court was not in error in ascribing probative value to it. Authorities abound on this principal. Once there is evidence of administration of words of caution on a suspect in the language he understands, and he voluntarily makes his statement which is so recorded, and he signed the stamen, a Judge is at liberty to act on it and predicate a conviction thereon. See IKEMSON v. STATE (1989) 3 NWLR (PART 110) PAGE 530, SALAMI v. STATE (1071) 1 NMLR 249, EDAMINE v. STATE 1996 3 NWLR (PT 438) PAGE 530, and UNIERHO v. STATE 2005 5 NWLR PART 919 PAGE 644; (2005) 2 SCM 1993″
The findings of the trial court on Exhibit “A” is therefore not perverse. The learned silk in an unsparing energy also found fault with the reliance placed on Exhibit “A”. He drew the attention of the court to the decision of AIGUOREGHIAN v. STATE (2004) 3 NWLR (PT 860) 367 at 403 to the effect that where a case of non est factum is raised by an accused it ought to be investigated before the statement could be relied upon by trial court. In view of my finding above I am of the view that the learned trial Judge was right in relying on Exhibit A because he investigated and found that the allegation of the Appellant was unfounded. The trial Judge held on pages 77-78 as follows:-
“On the whole, not only am I satisfied that the statement of the accused Exhibit “A”, was voluntarily given and that none compliance or observance of the long standing Judges Rules did not affect its admissibility, I am also convinced that it is the statement accused made to PW1, that PW1 recorded. Looking at the contents of Exhibit A, which is dated 5th June, 1996, 2 or 3 days after the evil happening accused clearly admitted stabbing the deceased on the chest and on the stomach with a knife. He also stated that he thereafter run to the Police Station and reported what happened.”
The learned trial Judge therefore acted within the confines of tile law.
The Learned silk also strongly submitted that Exhibit “A” ought to have been discountenance as unreliable since according to the Learned Senior counsel it was inconsistent with oral testimony of the accused. With profound respect to learned senior counsel to the Appellant I am not at one with him on the principle of inconsistency Rule. The inconsistency Rule is only applicable to a witness who had on previous occasion made a written statement which is now contrary to the oral evidence of that witness in the witness box. In such a situation a cross examiner could ask for the production of the witness’s statement to confront the witness with it in order to show that his oral testimony before the court is unreliable.
It has nothing to do with an accused and Appellant’s oral testimony in court. A confessional statement of an accused remains potent and effective against him even if he retracted it in his evidence at the trial once it was proved that the statement was voluntarily made.
See CHUKWUKA OGUDO v. THE STATE (2011) 11-12 (PT 1) SCM 209 at 222 G-I to 223 A per RHODES-VIVOUR, JSC who said:-
“It is that where a witness makes an extra judicial statement which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence on which a court can act. This rule developed in the interest of justice to resolve conflict between previous statement and later evidence for the prosecution or defence. The object was to ensure that the evidence relied on by the court is credible. The party who retracts is always afforded an opportunity while in the witness box to explain the inconsistency see Onugbogwu v. State (1974) 9 S.C p.1. The inconsistency rule is restricted only to the evidence of a witness who made an extra judicial statement which was in conflict with the evidence given at trial. The previous statements are not evidence which the court can act/and the evidence given at the trial is taken by the court as unreliable. See Egboghonome v. State 1993 7 NWLR pt. 306 P.383.
The inconsistency rule does not apply to an accused person. It does not cover a case where an accused person’s extrajudicial statement is contrary to his testimony in court. A court can convict on the retracted confessional statement of an accused person but before this is properly done, the trial Judge should evaluate the confession and testimony of accused and all the evidence available.”
I am of the firm view that the learned trial Judge dutifully considered exhibit A along with all the pieces of evidence before him before placing reliance on Exhibit “A” as truly made by the Appellant admitting the crime for which he was arraigned before him.
On Exhibit “D” the learned silk saw it as hearsay evidence. It was the appellant who on his own-volition relied upon it to shore up his defences of sudden fight, accident and provocation. I however agree with the learned silk for the Appellant that Exhibit “D” made by the Appellant’s deceased mother to the Police ought not to have been admitted. It is hearsay evidence and it is irrelevant to the proceeding.
The written statement of a prosecution witness is only relevant when the witness testifies and proves adverse in the witness box when giving evidence that shows that what he testified about is contrary to his written statement to the Police. The written statement can then be used to discredit him. The statement on its own is no evidence against the accused. See ITESHI ONWE v. THE STATE (1975) 1 ALL NLR (Pt. 2) 16 at 21 FATAYI WILLIAMS, J.S.C. later CJN of blessed memory who said:-
“The written statement of a prosecution witness is only relevant to the proceedings at which he given evidence where the witness proves “adverse” or is shown to have made at other times, a statement inconsistent with his present testimony. Such a statement is not evidence against the accused with respect to the allegation it contains, it is relevant only as to the credibility of the witness. See R. V. while (1924) 17 Cr. App R. P. 60 and also sections 208 and 209 of the Evidence Law of East-Central State (Cap 49)”
The legal result of tendering document like EXHIBIT “D” made by mother of the Accused/Appellant who unfortunately could not be called is that the contents of the document cannot be relied on or acted upon by the court. See FERNARD ABADOM v. THE STATE (1997) 1 NWLR (pt 479) 1 at 24 per UBAEZONU, J.C.A. Exhibit “D” is hereby declared documentary hearsay and of no evidential value.
The appellant had also submitted that if exhibits “A” and “D” are expunged then the prosecution did not prove the case against the Appellant beyond reasonable doubt.
I am of the settled view that exhibit “A” alone is enough to sustain the conviction and sentence imposed on the Appellant coupled with the evidence of PW1 and PW2 whose evidence was not challenged by the Appellant and his learned counsel at the trial. See also section 27 and 28 of the Evidence Act Cap. 112 LFN 1990. Exhibit “A” contained all the three ingredients of the offence of culpable homicide punishable with death for which the Appellant was charged. The oral Statement the Appellant made to PW1 at Mangu Police Station on 2/6/96 also go to confirm that the appellant killed the deceased. The trial Judge who heard the case and saw the witnesses testified and the Exhibits tendered particularly exhibits “A” “B” and “C” that is the confessional statement of the Appellant, the knife used in stabbing the deceased and the medical report was in order in his findings and conclusion that the prosecution has proved all the essential ingredients necessary to ground the offence of culpable homicide punishable with death against the accused/ Appellant, Danladi Musa.
I am not unmindful of the submission of learned silk that there is no eye witness account that was called by prosecution.
This submission cannot vitiate the conviction and sentence inflicted on the appellant by the lower court because Exhibit A, evidence of PW1 and PW2 and other exhibits tendered are cogent, sufficient and compelling circumstantial evidence to sustain the conviction and sentence passed on the Appellant. The evidence of IPO, PW1 of what the appellant told him on 2/6/96 and in the course of investigation and documents tendered were sufficient prove of the case against the Appellant and most importantly Exhibit “A” See UCHENNA NWACHUKWU v. THE STATE (2002) 12 SCM 143 at “In the present case, the evidence sought to be pronounced as hearsay and therefore inadmissible is a statement made by the appellant to P.W.2 in the course of Police enquiry and investigation of the case. Without doubt, the statement, to some extent amounts to a confession or admission and is damaging to und against the interest of the appellant”
The court can convict on the confessional statement of an Accused even without any corroboration from any prosecution witnesses.
I am satisfied in this case that the confessional statement of the Accused Exh. “A” was sufficient to prove the case against Appellant. See JAMES ACHABUA v. THE STATE (1976) 12 S.C. 63 at 69 where Obaseki Ag J.S.C. said:
“Only in few cases do criminals perpetrate their crimes in the open and the secrecy with which they execute their plans has tended to deprive the prosecution in some cases of eye witnesses. Happily, in this instant case, we have the extra judicial confessional statements in evidence and the recovery of the severed head of the deceased from the grace identified by the appellant as the place he buried it established the truth of the confession. It is settled law that confession alone is sufficient to support conviction without corroboration so long as the court is satisfied of the truth of the confession.”
And in the case of ANTHONY NWACHUKWU v. THE STATE (2007) 17 NWLR (PART 1062) 31 at 65 H to 66 A MOHAMMED J.S.C. said:-
“Thus, even without those corroborative acts, the appellant could perfectly be convicted solely on his voluntary confessional statement. I am of the opinion that a positive, direct and voluntary confession by an accused person is the best evidence a criminal court can conveniently admit to convict its maker. The admission of a confessional statement which has satisfied all the requirements of the law to be “confessional” properly so called, can satisfy the burden of proof required of the prosecution to discharge in order to secure a conviction. I am satisfied that the two lower courts have found that the prosecution discharged the onus of proof placed on it by the law.”
Proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. What is important is to ensure that all the ingredients of the offence were/are established against the Accused. See FABIAN NWATURUOCHA v. THE STATE (2011) 6 NWLR (PART 1242) 770 at 186 F-G where FABIYI, J.S.C. said:-
“……It is not proof beyond all iota of doubt as stated by Uwais, CJN in Nasiru v The State (1999) 2 NWLR (pt 589) 87 at 98. One thing that is certain is that where all essential ingredients of the offence charged have been proved or established by the prosecution, as done in this matter, the charge is proved beyond reasonable doubt. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at 523 proof beyond reasonable doubt should not be stretched beyond reasonable limit. Otherwise, it will clear.”
And recently in the case of OLUSINA AJAYI v. THE STATE (2013) 3 SCM 1 at 25 E, FABIYI, J.S.C. also added:-
What then is proof beyond reasonable doubt? It simply means the establishment of all ingredients of the offence charged in tandem with the dictates of Section 138 of the Evidence Act and Section 36(5) of the 1999 Constitution as on amended.”
I hold that the prosecution satisfied the provision of section 138 of the Evidence Act and the decision of the learned trial Judge is not perverse and this court has no duty to interfere with the said Judgment. Issue 4 is hereby resolved against the Appellant.
The inevitable conclusion I have reached is that the Appellants appeal ought to be dismissed. The Appellant’s appeal is hereby dismissed in its entirety as lacking in merit.
The conviction of the Appellant by the lower court stands. The sentence imposed upon the Appellant by the lower court is hereby affirmed.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.
Appearances
G. S. Pwul, SAN with
Bitrus Fwangshak Esq.,
M. Y. Danung Esq. F. Z. Kaatpo Esq. O. O. OgboleFor Appellant
AND
G. D. Fwomyon Esq. Deputy Director of Public Prosecution (DDPP)For Respondent
