USMAN SALIHI LAWAN v. THE STATE (2014)

USMAN SALIHI LAWAN v. THE STATE

(2014)LCN/7302(CA)

(2014) LPELR-23647(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of June, 2014

CA/K/300/C/2013

RATIO

CRIMINAL LAW: THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH; THE INGREDIENT OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH

Both the appellant and the respondent are correct to state that the ingredients of the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code to wit – that the death of the deceased occurred; that the act or omission of the accused caused the death of the deceased; and that the act or omission of the accused which caused the death of the deceased was intentional or was done with the knowledge that death or grievous bodily harm was its probable consequence, must all be proved beyond reasonable doubt to secure a conviction of an accused for the said capital offence. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.

EVIDENCE: STANDARD OF PROOF; THE STANDARD OF PROOF IN CRIMINAL CASES

Proof beyond reasonable doubt is therefore the yardstick for establishing any criminal offence vide Section 135 (1) of the Evidence Act, 2011, (Evidence Act). It has been held by high authority, i.e., the Supreme Court, in the case of Bakare V. State (1987) 1 N. S. C. C. (Vol. 18) 261 at 272 that:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal Justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, that the person accused is guilty of the offence charged, Absolute certainty is impossible in any human adventure including the administration of criminal Justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller V. Minister of Pensions (1947) 2 All. E.R. 373.
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of Justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – of course it is possible but in the least probable the case is proved beyond reasonable doubt”. See Rabi Isma’il V. State (2011) 17 NWLR (Pt. 1277) 601. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.
PRACTICE AND PROCEDURE: FINAL ADDRESS; WHETHER THE FAILURE TO ADDRESS IN A CASE WHERE THE FACTS ARE STRAIGHT FORWARD, WILL NOT BE FATAL OR CAUSE MISCARRIAGE OF JUSTICE
Although final address of counsel is a waivable right personal to counsel or his client and may form an essential part of the trial vide State V. Lawal (2013) ALL FWLR (pt. 679) 1024, Ndu V. State (1990) 11-12 SC 122 and Ayisa V. Akanji (1995) 7 SCNJ 245, failure to address in a case where the facts are straight forward, as in this case, will not be fatal or cause miscarriage of Justice, because whether counsel addresses a court or not the court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgment vide Ogunsanya V. State (2011) 6 – 7 SC (Pt. 11) 56, Orepekan V. Amadi (1993) 11 SCNJ 68, Ndu V. State (supra). per. JOSEPH SHAGBAOR IKYEGH, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE COURT TO CONSIDER NOT ONLY THE DEFENCE ARTICULATED BY AN ACCUSED BUT ALSO ALL DEFENCES THAT MAY OR COULD BE AVAILABLE TO AN ACCUSED FROM THE EVIDENCE BEFORE THE COURT
However, the court is not limited to considering only the defences articulated by an accused. The court, also, is to consider all defences that may or could be available to an accused from the evidence before the court. See Ayo Gabriel V. State (1989) 5 NWLR (Pt. 122) 457 at 464, D. S. P. Gods – Power Nwankwoala and Anr. V. State (2006) 7 SCNJ 566, Edibo V. State (2007) 5 SCNJ 325, Oyakhire V. State (2006) 7 SCNJ 319, Ada V. State (2008) 4 – 5 SC (Pt. 11) 45, Sanusi V. State (1984) NSCC 659. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; THE ADMISSIBILITY OF A RETRACTED CONFESSIONAL STATEMENT

I disagree with part of the submission of the respondent that the retracted confession in Exhibit A was no longer evidence in the case. The confessional statement went through the rigours of the crucible of a trial- within – trial before it was admitted in evidence as Exhibit A. And, as rightly stated by the court below in page 177 of the record, placing reliance on the case of Idowu V. State (2000) 7 SC (Pt. 11) 50, a retracted confession is still evidence in the case. Its probative value, however, is another matter to be determined by the court of trial in its judgment. See further the cases of Akpan V. State (1992) 6 NWLR (Pt. 248) 439, R. V. Itule (1961) 2 SCNLR 402, Ikpasa V. A. G., Bendel State (1981) 9 S. C. 7 followed in the fairly recent Supreme Court case of Federal Republic of Nigeria V. Iweka (2013) 3 NWLR (pt. 1341) 285 at 331 per the lead judgment of Galadima, J. S. C. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICE

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

USMAN SALIHI LAWANAppellant(s)

AND

THE STATERespondent(s)

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): Consequent upon the trial, conviction and sentence of the appellant to death by the High Court of Justice of Kano State sitting in Kano (the court below) for the deliberate killing (culpable homicide) of one ASHIRU TANKO contrary to Section 221 (b) of the Penal Code, the appellant brought forth the present appeal.

Shortly expressed, the facts behind the case were that on 15. 06. 05, at about 10. 30 pm, the PW2, Police Sergeant John Edor, while on official guard duty at Aviation Field, along Bayero University Kano (B. U. K.) road, Kano, responded to a distress voice call; upon arriving the scene the PW2 saw the deceased, Ashiru Tanko, on the ground with blood coming out of his body; upon enquiry the deceased told him one Yaya Magaji alias Usman Salihi Lawan, stabbed him in the neck and in his hand with a knife; the same information was relayed by the deceased to his brother, one Tanko Adamu, the PW1; the deceased was conveyed from the scene to the Murtala Mohammed Specialist Hospital Kano by Policemen from Sharada Police Station where the deceased died in the course of medical treatment on the same day; the post – mortem examination of the deceased by PW5, Dr. Atanda, a consultant pathologist, certified that the deceased died of excessive loss of blood from stab wounds in the left side of the neck, and two other stab wounds in the left arm.

Meanwhile, the appellant was said to have gone into hiding and; upon learning of the death of the deceased, the appellant absconded to Port Harcourt where he was arrested and made a confessional statement to the Police, Exhibit A, which he retracted at the trial, that he killed the deceased with a knife. The appellant’s defence at the trial was total denial of the offence and retraction of the confessional statement, Exhibit A. The appellant further denied in his testimony that he is also known as Yaya Magaji. The appellant finally denied any encounter with the deceased in the circumstances narrated by the respondent at the court below.

The court below accepted the respondent’s case and rejected the version of the appellant and resolved the case against the appellant that he deliberately killed the deceased upon which the court below convicted and sentenced the appellant to death by hanging for the offence of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code.

Naturally, the appellant was unhappy with the decision of the court below and challenged it by a notice of appeal with three (3) grounds of appeal filed on 19. 04. 13. Consequent upon filing the notice of appeal, the appellant caused a brief of argument to be filed on 15. 08. 13, with the following three (3) issues for determination-
“i. Whether the evidence adduced by the persecutionat(sic) the trial proved all the ingredients of culpable homicide under Section 221 (b) of the Penal Code (Ground 1 of the Notice of Appeal).
ii. Whether it is right for the trial court to fail to consider the entire content of exhibit “A” and instead to rely on a particular portion thereof and regard same as corroboration with the evidence of the persecution.(sic) (Ground 2 of the Notice of the Appeal).
iii Whether the trial court accorded fair trial and fair hearing to the Appellant having regard to the manner the trial was conducted (Ground 3 of the Notice of Appeal).

In arguing the first and second issues together the appellant pointed out that in a case of culpable homicide the prosecution must prove beyond reasonable doubt cumulatively and by strong credible evidence that the death of the deceased was caused by the accused who intended to either kill the deceased or cause him grievous bodily harm vide the case of Aigbadion V. State (1999) 1 NWLR (Pt. 586) 284 at 286 – 289, Durwode V. State (2000) 15 NWLR (pt. 691) 467, Njokwu V. State (2013) 2 SCNJ (Pt. 1) 147 at 150, Akpan V. State (2000) 12 NWLR (pt. 582) 607, Chukwuma V. F. R. N. (2011) 5 SCNJ 40, Nwaturudha V. State (2011) 3 SCNJ 148.

The appellant referred to the evidence of the PW1 – PW5 in pages 160 – 170 of the record of appeal (the record) to submit further that the said evidence taken together did not prove beyond reasonable doubt all the ingredients of the offence of culpable homicide under Section 221 (b) of the Penal Code; in that, had the court below not taken in isolation the totality of the evidence of the PW1 – PW5 from the statement of the appellant in Exhibit A it would not have concluded in its judgment that it was the act of the appellant that caused the death of the deceased by stabbing with a knife, when Exhibit A stated the stab wound was at the back of the deceased, whereas the evidence for the prosecution stated it was at the neck; more so, the evidence of PW1 – PW3 was hearsay having not witnessed the stabbing of the deceased by the appellant and that the said witnesses not being medical doctors were incompetent to give evidence in proof of stab wound vide Aruma V. State (1990) 10 SCNJ 6; all the more so the PW5, the pathologist, found the stab wound located at the neck and left hand of the deceased contrary to Exhibit A which located the stab wound at the back of the deceased which, according to the appellant, materially contradicted the case against him that he killed the deceased, which material contradiction was left unexplained by the respondent and should be held fatal to the respondent’s case vide Eke v. State (2011) 2 SCNJ 57 at 66 – 67; and that the failure of the respondent to tender the medical report in her possession in evidence to clear the ambiguity or doubt caused by the oral evidence of PW5, the pathologist, and PW1 – PW3, amounted to hiding vital evidence vide Akinbisade V. State (2006) 27 NSCQR 743 at 746 and the doubt created thereby should have been resolved in favour of the appellant vide Aigubaruegian V. State (2004) 17 NSCQR 442, Adekunle V. State (2006) 3 SCNJ 366, Posu V. State (2011) 2 SCNJ 37 and Section 149 (d) of the Evidence Act, 1990.

The appellant also argued that had the court below considered Exhibit “A” together with the evidence of PW1 – PW5, it would have discerned there from that the deceased initiated the fight between himself and the appellant; the deceased was armed with a knife, while the appellant was unarmed; the deceased attacked the appellant by hitting him with a piece of wood in his stomach which brought the appellant down; the deceased brought out a knife and stabbed the appellant on his hand; the appellant struggled over the knife with the deceased; the appellant seized the knife and stabbed the deceased with it at his back; the knife fell down and the appellant fled the scene, while the deceased tried pursuing him; which taken together provided the defence of self defence to the appellant and entitled the appellant to acquittal, as the intent to kill the deceased was not disclosed by the act of the appellant, thus rendering the offence charged incomplete which the court below failed to consider in denial of the appellant’s right to fair hearing vide the cases of Ogbu V. State (2007) AS (?) SCNJ 319, Akpa V. State (2006) 4 JNCS (?) (Pt. 14) 418, Nwanko (?) v. State (2006) 1 JNSC (SCNJ) (Pt. 1) 86, Nwaturoucha V. State (2011) 3 SCNJ 149 at 150 – 152, Omini V. State (1999) 9 SCNJ 1at 3, Isah V. State (2006) 3 JNSC (SCNJ) (Pt. 9) 303, Akawo V. State (2011) ALL FWLR (Pt. 597) 624 at 627 – 629, Oyakhire V. State (2006) 27 NSCQR 109, Kaza V. State (2008) 2 SCNJ 373; Egwumi V. State (2013) 2 SCNJ 875, Adeyeye V. State (2013) 2 SCNJ (Pt. 1) 87,Waziri V. State (1997) 3 NWLR (Pt. 496) 689, Apugo V. State (2006) 27 NSCQR 201.

After referring to page 104 of the record where the court below ordered for written address to be filed in the case with the agreement of the appellant and the respondent, the appellant alluded to pages 111- 127 of the record containing the final written address of the defence to contend that by the failure of the court below to “consider, recognized or make any pronouncement or reference” in the judgment on the said written address the court below deprived the appellant of his right to fair hearing which led to a miscarriage of Justice and affected the validity of the judgment of the court below vide Section 36 (2) (a) of the 1999 Constitution and the cases of Ogunsanya V. State (2011) 6 SCNJ 190 at 192, Akabogu V. Akabogu (2003) 9 NWLR (Pt. 826) 445, Newswatch Co. Ltd. V. Attah (2006) 3 JNSC (SCNJ) (Pt. 9) 231, B + B Gas V. Age (2006) 4 JNSC (SCNJ) (Pt. 14) 519, Lado V. State (1999) 6 SCNJ 1, upon which the appellant solicited for the appeal to be allowed and the judgment of the court below set aside and an order of acquittal and discharge be entered for him.

Three issues for determination were formulated by the respondent in page 5 of the respondent’s brief of argument filed on 16. 09. 13 thus-
“(1) Whether the prosecution has, beyond reasonable doubt, proved the offence of Culpable Homicide punishable with death against the Accused/Appellant;
(2) Whether the learned trial Judge, had in his judgment considered all the defences put up by the Accused/Appellant as borne out in the printed record of proceedings.
(3) The Respondent adopts 3rd statement of “issues for determination” as contained in paragraph 1.2 (iii) at page 2 of the Appellant’s Brief of Argument.”

After agreeing with the appellant on the three elements of the offence of culpable homicide punishable with death highlighted in the appellant’s brief of argument and citing in further support thereof the cases of Nwachukwu V. State (2002) 7 SCNJ 230, Garba V. State (2000) 4 SC 157 and Igabele V. State (2006) 2 SCNJ 124 at 133, the respondent referred to the evidence of PW1 and PW3 in the record to the effect that the deceased died in the presence of the PW1 and the PW3 on the same day of the attack while receiving medical treatment at the Murtala Mohammed Specialist Hospital Kano and post-mortem examination confirming the death of the deceased was done at Aminu Kano Teaching Hospital Kano, the respondent submitted that the first element of the offence to the effect that the death of the deceased occurred was proved beyond reasonable doubt as held by the court below in pages 175 – 177 of the record where Exhibit A was held by the court below to corroborate the circumstantial evidence of the respondent; and that the other two ingredients of the offence were proved beyond reasonable doubt by the credible evidence of the PW1 – PW3 and PW5 together with Exhibit A, the statement of the appellant to the Police, to the effect that the appellant killed the deceased with a knife on the fateful day vide the cases of Chukwuma V. FRN (2011) SCNJ 40 at 55, Eke V. State (2011) 2 SCNJ 57 at 68, Jua V. State (2011) 2 SCNJ 224 at 250, Ndukwe V. State (2009) 2 SCNJ 223 at 258.

It was also argued that there was no material contradiction between the evidence of the PW5 and Exhibit A on the location of the knife wound, as all that the court below did was to believe the “over whelming evidence” of the respondent and disbelieved Exhibit A on the issue to hold that the fatal stab wound was at the neck of the deceased and that all that is required by a confessional statement under Section 28 of the Evidence Act, 2011, is to ensure that it is an admission made by a person charged stating or suggesting the inference that the confessor committed the crime charged; that the pathologist having testified in the case there was no need to tender the medical report in respect of the death of the deceased that occurred on the same day of the attack, unlike the case of Aiguoreghian V. State (supra) where the death of the deceased happened some three months after two different medical doctors had treated and discharged him of the injuries citing in support thereof the cases of Ayo Gabriel V. State (1989) 5 NWLR (Pt. 122) 457 at 465, Aiguoreghian V. State (supra) at 74, Nwachukwu V. State (supra) at 251.

The respondent argued on the second issue that the appellant having retracted Exhibit A in his testimony, the alleged defence contained in Exhibit A was no longer available to the appellant and that it would amount to speculation to hold that Exhibit A provided the defence of self defence to the appellant vide Edoho V. State (2010) 4 SCNJ 100 at 118 and that; alternatively, Exhibit A being documentary can be examined by the Court vide Mini Lodge V. Ngei (2009) 12 SCNJ 93 at 104 – 105 and, when so examined, the defence of self defence raised therein presupposed the admission of the offence by the appellant vide Sule V. State (2009) 6 SCNJ 65; and that the circumstances narrated in Exhibit A clearly showed there was no necessity of taking the life of the deceased, as the appellant was not in peril of his life or bodily harm the moment he disarmed the deceased and had the opportunity of safe retreat or escape from the encounter which the appellant had proactively promoted, showing the defence of self defence was not available to the appellant vide Omoregie V. State (2008) 18 NWIR (Pt. 1119) 464.

The respondent referred to the judgment of the court below in pages 110 – 127 of the record to submit on the third issue that the court below considered the written address of the appellant in its judgment; that each Judge has his own style of writing judgment vide Ndukwe V. State (supra); that the appellant was not denied fair hearing as to call in aid the case of Akabogu V. Akabogu (supra); and that the essence of address is to assist the court arrive at Justice vide Ogunsanya V. State (2011) 6 SCNJ (pt. 1) 190 at 219; therefore the appeal should be dismissed and the conviction and sentence of the appellant by the court below affirmed.

Upon calm view of the issues formulated by the appellant and the respondent in the appeal, I incline to the issues developed by the appellant which shelter the respondent’s issues and are meet for the discourse and on that premise I will be guided by the appellant’s issues for the discussion.

The arguments on the medical report are threshold to the main case and need to be attended to first. The accusation that the respondent withheld the medical report in breach of Section 149 (d) of the Evidence Act 1990, now Section 167 (d) of the Evidence Act, 2011, does not hold ground on account of the fact that no demand was made on the respondent for the production of the medical report and the respondent refused to honour the demand vide Aremu V. State (1991) 7 NWLR (Pt. 201) page 1, at 17 – 18, Salzgitter Stahl GMBH V. Tunji Dosunmu Industries Ltd. (2010) 11 NWLR (Pt. 1206) 589 at 613.
Also, the pathologist that authored the medical report having testified as PW5, there was no need to tender the medical report in evidence as an Exhibit vide Ayo Gabriel V. State (supra) cited by the respondent; and the Supreme Court case of Agbeyin V. State (1967) NMLR 129 where the attempt to tender the medical report in the course of the evidence – in – chief of the medical doctor was rejected by the trial court and in affirming the decision of the trial court on appeal the Supreme Court held that the medical report could only be used to refresh the memory of the medical doctor that made it suggesting that the medical report could not be tendered in evidence as an Exhibit side by side with the testimony of the medical doctor that prepared it. See again Adekunle V. State (1989) 5 NWLR (Pt.123) 505 followed in Nwabueze V. State (2014) 3 NWLR (Pt. 1394) 401 at 430.

In addition, where death occurred on the date of the attack on the victim, as in this case, medical evidence could be dispensed with, so long as there is credible evidence of the cause of death vide Eric Uyo V. A. G., Bendel State (1986) 1 NWLR (Pt. 17) 418, Aiguoreghian V. State (supra) at 74, Nwachukwu V. State (supra), Gabriel V. State (supra) cited by the respondent.

The PW1, PW3 and PW5 were consistent in their respective pieces of unshaken evidence that the fatal stab wound was at the neck of the deceased.
There was therefore no contradiction in the evidence of the witnesses for the respondent on the location of the said stab wound. The fact that Exhibit A stated the stab wound was at the back of the deceased was the version of the appellant, not the respondent’s case. The court below believed the case of the respondent on the issue. I have no cause to disturb the finding of the court below on the said issue as the court below had the unique advantage of seeing and hearing the witnesses that testified before it, which opportunity I do not have. See Ibuluya V. Dikibo (2010) 3 – 5 SC (Pt. 11) 100 and Tanko V. Echendu (2011) 18 NWLR (Pt. 1224) 253.

Proof beyond reasonable doubt is therefore the yardstick for establishing any criminal offence vide Section 135 (1) of the Evidence Act, 2011, (Evidence Act). It has been held by high authority, i.e., the Supreme Court, in the case of Bakare V. State (1987) 1 N. S. C. C. (Vol. 18) 261 at 272 that:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal Justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, that the person accused is guilty of the offence charged, Absolute certainty is impossible in any human adventure including the administration of criminal Justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller V. Minister of Pensions (1947) 2 All. E.R. 373.
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of Justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – of course it is possible but in the least probable the case is proved beyond reasonable doubt”.
See Rabi Isma’il V. State (2011) 17 NWLR (Pt. 1277) 601.
What has to be done in an appeal of this nature is to look carefully and critically at the evidence before the court below to see whether it substantially erred in the handling of the evidence as lead to a miscarriage of Justice and render its decision unreasonable having regard to the said evidence and the burden of proof on the respondent to establish the capital offence against the appellant beyond reasonable doubt. See Bakare V. State (supra) at 270.

In considering whether the burden of proof was discharged by the respondent at the court below, it is necessary to attend to the complaint that the final address of counsel for the appellant was not taken into account by the court below. Page 173 of the record has this to say on the issue-
“At the end of the trial the court gave chance to counsel on both sides i.e, Prosecution and Defence to file a written address. The Defence counsel filed a written address but the Prosecuting counsel was unable so to do. In the written address the Defence counsel submitted that the prosecution has not been able to establish their case beyond reasonable doubt against the accused and he therefore urged this court to discharge the accused person.”

The passage quoted above showed the court below alluded to the submission in the appellant’s written address that the crime was not proved beyond reasonable doubt, showing the court below did not totally shut its eyes to the existence of the written address of the appellant in pages 111- 124 of the record.
Although final address of counsel is a waivable right personal to counsel or his client and may form an essential part of the trial vide State V. Lawal (2013) ALL FWLR (pt. 679) 1024, Ndu V. State (1990) 11-12 SC 122 and Ayisa V. Akanji (1995) 7 SCNJ 245, failure to address in a case where the facts are straight forward, as in this case, will not be fatal or cause miscarriage of Justice, because whether counsel addresses a court or not the court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgment vide Ogunsanya V. State (2011) 6 – 7 SC (Pt. 11) 56, Orepekan V. Amadi (1993) 11 SCNJ 68, Ndu V. State (supra).

But in the instant case, the appellant was not denied final address by the court below. A final address was indeed filed by the appellant at the court below.
The court below stated in the course of its judgment in page 173 of the record that the appellant’s final address dealt with the complaint that the respondent did not establish the case against the appellant beyond reasonable doubt, therefore the court below should discharge his client. All about a case is indeed the discharge of the burden of proof. If the reference made by the court below to the appellant’s final address was insufficient, the appellant should have said so.
He did not. It was not a case of the court below denying the appellant the right to file his written address. The right was granted. The court below also commented on the written address. The respondent did not file any. I do not, with respects, agree with the appellant that he was denied fair hearing in the circumstance. See the elaborate judgment on similar issue given by my learned brother, Orji – Abadua J.C.A., in the recent case of Kuban V. Rilwanu (2014) 4 NWLR (Pt. 1397) 284 at 305 – 307.
After all, address of counsel is basically to assist the court arrive at Justice.
Failure to utilise it does not automatically or necessarily lead to miscarriage of Justice, unless the party complaining establishes obvious or substantial miscarriage of Justice thereby, which was not established by the appellant in the instant case that appeared straightforward- See Niger Construction Ltd. V. Okugbemi (1987) 4 NWLR (Pt. 67) 787 at 792 and Ogunsanya V. State (supra) to the effect that the failure to address the court will not be fatal or cause miscarriage of Justice.

The court below found in its judgment in pages 175 – 179 which is predicated on the uncontradicted evidence of the PW1 in pages 9 – 23 of the record, the PW3’s unchallenged evidence in pages 28 – 31 and 34 of the record, and the unchallenged evidence of the pathologist, the PW5, in pages 91 – 95 of the record, plus the appellant’s confessional statement, Exhibit A, which the court below subjected to the six ways test (courtesy of the lead English case of R. V. Sykes (1913) 8 C. A. R. 233) in page 176 of the record to hold rightly, in my view, that the said pieces of credible evidence corroborated the confessional statement of the appellant in Exhibit A and made it possible that the confessional statement is true; and that the mere retraction of the confessional statement did not render it inadmissible or worthless or untrue.

It is on account of the said pieces of credible evidence that the court below found the three ingredients of the offence charged proved beyond reasonable doubt to the effect that the death of a Mr. Ashiru Tanko, a human being, took place and that the death was caused by the appellant stabbing the deceased with a knife in the neck which act was done with the intention of causing death, and/or that the appellant knew death would be the probable consequence of his act. See in particular pages 174 – 179 of the record containing the judgment of the court below. The said findings of fact are, in my view, sound and amply supported by the said pieces of credible evidence before the court below which I hereby affirm.

The appellant had in his evidence put forward only the defence of alibi which the court below rejected and which was not made a complaint in the appeal and cannot be discussed in the appeal, save to state in passing that a defence of alibi without particulars of the place and person from which to verify the alibi such as the one put by the appellant that he was in Port Harcourt since 2005 vide pages 96 – 97 and 101- 1-2 of the record was grossly deficient and cast no obligation on the respondent to investigate it vide Archibong V. State (2006) 14 NWLR (pt. 1000) 349 at 396 – 397 following Odu V. State (2001) 10 NWLR (Pt.722) 668, Hassan V. State (2001) 6 NWLR (pt. 709) 286 at 305, Eke V. State (2011) 2 NWLR (pt. 1235) at 606, Ochemaje V. State (2008) 15 NWLR (Pt. 1109) 57.

I think the court below was right in disbelieving the defence on oath of the appellant in the bare – face of his admission in Exhibit A, his statement to the Police, that he killed the deceased with a knife. Of course a man may lie in his evidence in defence for fear or out of anxiety to save himself and, also, some times in extreme cases an accused may lie out of foolishness or stupidity.
But any defence open to an accused in his statement to the Police which had been accepted in evidence as part of the case for the prosecution (respondent), such as Exhibit A, may still be considered in the interest of Justice, notwithstanding the lies by the accused and the exclusion of the defence in his testimony. See Haruna and Anor. V. Police (1967) NMLR 145 and Omogodo V. State (1981) 12 N. S. C. C. 119 at 128 per the lead judgment of Nnamani, J. S. C., (of blessed memory) for the proposition that lies told by an accused may not be evidence of guilt and that the totality of the case against an accused must be considered to arrive at a just decision in the case. See again Ayo Gabriel V. State (supra) at 464.
However, the court is not limited to considering only the defences articulated by an accused. The court, also, is to consider all defences that may or could be available to an accused from the evidence before the court. See Ayo Gabriel V. State (1989) 5 NWLR (Pt. 122) 457 at 464, D. S. P. Gods – Power Nwankwoala and Anr. V. State (2006) 7 SCNJ 566, Edibo V. State (2007) 5 SCNJ 325, Oyakhire V. State (2006) 7 SCNJ 319, Ada V. State (2008) 4 – 5 SC (Pt. 11) 45, Sanusi V. State (1984) NSCC 659.

The appellant relied on Exhibit A to argue that it disclosed the defence of self defence. For clearness, I copy Exhibit A (unedited) below-
I, (Usman Salihi Lawan) of the above named and address freely elect to state as follows: – I wish to state as follows – I could remember on 15/6/05 at about 20:30 hrs, while I was at my business place in our area, then one Ashiru my friend came and met one Nura and Ali were sitting while I was also sitting by the mosque. Before that day, during Sallah celebration I ride a horse so he came and met me and was telling me that, they have went to used me through homosexual and they have given me a horse to ride. I became annoyed but did not say uttered a word. But Ashiru continue with that statement anytime he came to my place. I finally went and informed my mother, and my mother warned me to get out of his way and that is what I did. But on 15/6/05 at about 2030hrs, Ashiru came and met me and started abusing me as he used to do to extend I grew annoyed and he said either I or him we should set a place to fight. Then asked him where did he want us to so and fight. He said kofar Na, Isa. I followed him and on our wav, he picked a wood and hit me on my stomach from there I fell down and woke up and started fighting. Ashiru then brought out a knife trying to stabbed me with it, which on the struggle to collect the knife…..my hand after seizing the knife with annoyance I don’t know when I stabbed him with the knife on his back.
The knife fell down there and I started running he wanted to followed me but I quickly stopped motorcycle and went home with some stained blood on my clothe and my mother saw and asked me what happened? I told her that I fought with Ashiru.
She went and woke up my father who was sleeping. He came out and heard what happened, he started reciting salat. I was taken to chemist because I was also injured and came back. When we came back with my brother, our father said they should locked the gate of the house. We were all in the compound our father was discussing on how he will confront the problem at about 0300hrs we heard a knock, then my father and my brother went and opened the door. Later came and stood behind them when I heard the brother to Ashiru and one Bello who knocked to door were telling my father that Ashiru is dead and told my mother. My mother warned to leave Kano then went into my room and took some and left to my brother house as Dorayi one Salisu reached the house, he asked me what happened that policemen came and were looking for me. I explained everything to him so early in the morning, he took me on motorcycle to K/Dawaki and I will joined a vehicle to go and stayed with one your sister at Port-Harcourt. He drove this motorcycle and went back. I was there when I say old men I explained my problems to him, me that, he will take me to one mallam to go and stayed with him at Maiduguri. I followed the old man and opened only one day. But being that I know my mother knows I will be at Port-Harcourt, I decided and left to Port Harcourt the following day. That is on I stayed there with my sister. My sister and her husband, none of them asked me, hut what I believe was, my mother told me that 20hrs I was at the mosque when a policeman came and invited me. That is all what happened between myself and my late friend Ashiru.”
(my emphasis).

The appellant made the point aright, in my view, that facts for and against an accused contained in his confessional statement must be considered together vide the case of Shazali V. State (1988) 12 S. C. (Pt. 11) 58 at 72 per the lead judgment of Agbaje, J. S. C., (of blessed memory) as follows-
“Where the appellant’s statements contained statements in part admission and in part denial the statements are admissible not only of facts admitted but also of facts denied. See R. V. Donaldson (1976) Criminal Law Review (C.L.R.) page 686.”
And as was held in the case of Kim V. State (1992) 4 NWLR (Pt. 233) 17 at 51 – 52-
“The defence of an accused person is the totality of his evidence in court and any portion of his extra – judicial statement favourable to him.” (my emphasis).
The then Federal Supreme Court also stated in the case of The Queen V. Itule (1961) 2 SCNLR 183 or (1961) 1 ALL NLR 466 that-
“The whole of the account which a party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received, without receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that he made such an assertion but admissible evidence of the matter thus alleged by him in his discharge.”
The statement of the law copied above was followed in the case of Kim V. State (supra).

Consequently, Exhibit A, the confessional statement of appellant, will be considered as a whole or holistically.
The components of the defence of self defence were restated in the case of Afosi V. State (2013) 13 NWLR (Pt. 1371) 329 at 357 – 358 per the lucid lead judgment of Ariwoola, J. S. C., thus-
“(a) The accused must be free from fault in bringing about the encounter;
(b) There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity;
(c) There must be no safe or reasonable mode of escape by retreat; and
(d) There must have been a necessity for taking life.”

Going by Exhibit A, the deceased initiated the encounter thus satisfying the first ingredient (supra) that the appellant was free from fault in bringing about the encounter.
The appellant stated in Exhibit A that he overpowered the deceased and received the knife from the deceased in the course of which he was injured in the hand. Having disarmed the deceased, the appellant no longer faced impending danger or peril to his life or grevious bodily harm, either real or apparent, to create honest belief of an existing necessity to save himself by killing the deceased, which established that the second ingredient of the defence was not available to the appellant.

That the appellant was able to escape after stabbing the deceased who had not blocked his escape route prior to the stabbing showed the appellant had the opportunity to escape or retreat after he disarmed the deceased; however, the appellant stayed put to inflict the fatal knife wound on the then unarmed deceased before making good his flight from the scene, which established that the third ingredient of the defence (supra) was not available to the appellant.

Further, the appellant was not confronted with the compelling and inevitable urge or need to kill the deceased in order to save his life as he was armed, while the deceased was unarmed at the material time, therefore by stabbing the deceased with the knife in the circumstances of the case could not have been in self defence. The fourth ingredient of the defence (supra) was also not available to the appellant, as there was no indication the appellant was acting in defence of himself from unlawful violence at the time he stabbed the defenceless deceased.

Accordingly, Exhibit A does not disclose all the ingredients of a successful plea of self defence under Sections 59, 60 (a), 62, 63 and 65 (a) of the Penal Code and the court below could not have held the defence available to the appellant on the strength of Exhibit A. see Afosi v. State (supra) following the cases of Liya v. State (1998) 2 NWLR (Pt. 538) 397, Kwaghshir v. State (1995) 3 NWLR (Pt. 386) 651, Nwambe v. State (1995) 3 NWLR (Pt. 384) 385, Omoregie v. State (2008) 18 NWLR (Pt. 1119) 464.

Be that as it may, the totality of Exhibit A, also, indicated that the appellant and the deceased were engaged in a fight in the course of which the deceased hit the appellant with a piece of wood in the stomach which brought down the appellant; the deceased removed a knife and attempted to stab the appellant who over – powered the deceased and seized the knife from the deceased and in the heat of passion stabbed the deceased instantly or on the spot before there was time for passion to cool which led to the subsequent death of the deceased on the same day, which, in my considered opinion, brought the offence under Section 222 (1) of the Penal Code dealing with provocation and punishable as culpable homicide not punishable with death under Section 224 of the same Code.

I would allow the appeal in part on the ground of provocation and set aside the conviction and sentence of the appellant for culpable homicide punishable with death and substitute therefor conviction and sentence of the appellant for culpable homicide not punishable with death under Section 224 of the Penal Code.

Accordingly, the appellant who on record is a young man with prospect of positive change in future is sentenced to 15 years (fifteen years) imprisonment on account of the gravity of the offence which led to the untimely loss of life of a human being, the deceased. I commend the well prepared briefs under the hand of Mr. Abdullahi for the appellant and Mr. Sule for the respondent which I found useful in the course of the discussion.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

TIJJANI ABUBAKAR, J.C.A.: My learned brother IKYEGH JCA granted me the privilege to read in draft the lead judgment just delivered, my learned brother has fully covered the field, I have nothing useful to add, I adopt the entire judgment as my own.
I abide by all consequential orders including the order on costs.

Appearances

Mr. Yakubu AbdullahiFor Appellant

AND

Mr. Shuaibu Sule (D. C. L Ministry of Justice, Kano)For Respondent