MUDASSIRU SULEIMAN v. KANO STATE (2014)

MUDASSIRU SULEIMAN v. KANO STATE

(2014)LCN/7316(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 25th day of June, 2014

CA/K/254/C/2012

RATIO

CRIMINAL LAW: CULPABLE HOMICIDE PUNISHABLE WITH DEATH; THE INGREDIENTS OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH

It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death of grievous bodily harm was its probable consequence. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

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

The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Sabi vs State (2011) 14 NWLR (Pt 1268) 421, Obi Vs State (2013) 5 NWLR (pt 1346) 68, Babatunde v. State (2014) 2 NWLR (Pt 1391) 298. It must, however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke V. State (2013) 16 NWLR (Pt 1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt 1395) 568. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: PROVING CULPABLE MURDER PUNISHABLE WITH DEATH; HOW TO ESTABLISH THE INGREDIENT THAT IT WAS THE ACT OF THE ACCUSED THAT CAUSED THE DEATH OF THE DECEASED BEYOND REASONABLE DOUBT

On the second ingredient of the offence of whether it was the act of the Appellant that caused the death, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant – Lori vs State (1980) 8-11 SC 81 at 95-96, Udosen vs State (2007) 4 NWLR (Pt 1023) 125, Oche vs State (2007) 5 NWLR (pt 1027) 214 and Ekpoisong vs State (2009) 1 NWLR (pt 1122) 354. This point was made by the Supreme Court in the case of Oforlete Vs State (2000) 12 NWLR (Pt 631) 415 thus:
“In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence”
In Osuoha Vs State (2010) 16 NWLR (Pt 1219) 364, the Court of Appeal stated that to sustain a charge of murder, the cause of death must be linked to the act of the accused with certainty and clarity and not on the basis of conjecture, imagination, or loose deduction and it must be proved that the accused knew that his act will result in death or did not care whether death of the deceased will result from his act. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: PROVING CULPABLE MURDER PUNISHABLE WITH DEATH; WAYS OF PROVING THAT THE ACT OF AN ACCUSED PERSON CAUSED THE DEATH OF THE DECEASED

EVIDENCE: CONFESSIONAL STATEMENT; THE TEST THE COURT SHOULD SUBJECT RETRACTED CONFESSIONAL STATEMENT TO BEFORE THE COURT WOULD BELIEVE AND ACT ON THE SAME

EVIDENCE: CONFESSIONAL STATEMENT; WHAT AN ACCUSED WHO DESIRES TO IMPEACH HIS STATEMENT MUST SHOW TO ESTABLISH THAT HIS EARLIER CONFESSIONAL STATEMENT CANNOT BE TRUE

It is settled law that during trial, an accused person who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – Hassan Vs State (2001) 15 NWLR (Pt 735) 184, Kazeem Vs State (2009) WRN 43 and Osetola Vs State (2012) 17 NWLR (pt 1329) 251. In Jeremiah Vs State (2012) 14 NWLR (Pt 1320) 248, Abba Aji, JCA made the point at page 279 B-E thus:
“If an accused person resiles from his confessional statement, it is his function to explain to the court, as part of his defence, the reason for the inconsistency. In such circumstance, if he is to be believed, the accused has to lead evidence to establish that his confessional statement could not be correct. It may be that he was not correctly recorded or that in fact he did not make the statement or that he was unsettled in his mind at the time the statement was made or that he was induced to do so. That explanation must come from him without prompting from the prosecution. It is in rare cases that a court would attached credence to the evidence of an accused person as against his extra judicial statement where he fails to show that the extra judicial statement could not be correct.” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

CFR Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

MUDASSIRU SULEIMAN Appellant(s)

AND

KANO STATE Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kano State in Suit No K/16C/2009 delivered by Honourable Justice Yusuf Ubale on the 28th of March, 2012.
The Appellant was arraigned before the lower Court on a one count charge of culpable homicide punishable with death under Section 221 of the Penal Code and he was alleged to have killed one Usman Shehu Aliyu on the 11th day of May, 2008 at Hausawa Quarters in Tarauni Local Government Area of Kano State by stabbing him with a knife on the chest.

The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial.
The Respondent called six witnesses and tendered exhibits in proof of the charge while the Appellant called three witnesses, including himself, in proof his defence. At the conclusion of trial, the lower Court found the Appellant guilty as charged and sentenced him to death. The Appellant was dissatisfied with the judgment of the lower court and he filed a notice of appeal dated the 22nd of May, 2012. The notice of appeal contained five grounds of appeal.

In arguing the appeal before this Court, Counsel to the Appellant presented a brief of arguments dated the 15th of November, 2013 and it was filed on the 21st of November, 2013 and it consisted of thirty three pages. In response, counsel to the Respondent filed a brief of arguments dated the 15th of January, 2014 and it consisted of twenty three pages. At the hearing of the appeal, counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments in arguing the appeal.

Counsel to the Appellant formulated two issues for determination in his brief of arguments and these were:
i. Whether the Respondent has proved the offence of culpable homicide beyond reasonable doubt against the Appellant in this case and the lower Court has rightly convicted and sentenced the accused for the offence.
ii. Whether the trial court properly considered and rightly dismissed the defence of provocation and self defence raised by the accused person in this case.

Counsel to the Respondent agreed, in principle, with the two issues formulated by counsel to the Appellant and counsel only reformulated the first issue for determination to read:
Whether the Respondent has beyond reasonable doubt proved the offence of culpable homicide punishable with death against the Appellant in this case?

In arguing the first issue for determination, Counsel to the Appellant stated that the tenor of the evidence led at trial was that the Appellant stabbed the deceased with a knife on the chest which resulted in the death but that the Respondent led no evidence on the recovery of the knife and no attempt was made to tender the knife in evidence and thus the lower Court was unable to confirm if the instrument used was indeed a knife and could not confirm the cause of death of the deceased. Counsel stated that this was fatal to the case of the Respondent and that the Respondent therefore failed to prove offence against the Appellant beyond reasonable doubt and the lower Court was wrong to have convicted him and he referred to the cases of Stephenson v. Police (1966) 2 ALL NLR 261, Sunmola Ishola v. The State (1969) 1 NMLR 259, Ignatius Uwa Vs COP (1972) 2 ECSLR 727. Counsel stated further that there was clear evidence on the record that it was the deceased that started the fight that led to the death and that the Appellant had no intention against the deceased and that as such the Respondent failed to establish any malice aforethought which is an essential ingredient of the offence and he quoted extensively from the case of Amayo Vs State 8 NSCQR 431, and referred to the case of Queen Vs Nwaugoagusu (1962) 1 All NLR 294.

Counsel stated that the essential ingredients of the offence against the Appellant must be proved beyond reasonable doubt and that this burden was on the Respondent, and it never shifted, to prove not only that the act of the Appellant could have caused the death but that it certainly did and that if there was a possibility that the deceased died from other causes than the act of the Appellant, the Appellant is entitled to an acquittal and he referred to the cases of Ononuju Vs State (1964) 1 All NLR 5, Onyenankeya Vs State (1964) NMLR 34, amongst others. Counsel stated that cause of death can be proved by direct evidence such as a medical report or by circumstantial evidence and that where medical evidence is inconclusive on whether it was the injury inflicted on a deceased by an accused person that led to the death, the court has a duty to examine the evidence before it and draw necessary inferences and he referred to the cases of Adekunle vs State (1989) 5 NWLR (pt 123) 505, Essien Vs State (1984) 3 SC 14, amongst others. Counsel stated that in the instant case, the Respondent failed to prove an intent to kill on the part of the Appellant and did not establish with certainty the cause of death and that certainty was an essential ingredient in proof of criminal liability and he referred to the cases of R Vs Thomas Torto 12 WACA 93, Gabriel Vs State (1939) 12 SCNJ 33, Ogundiyan Vs State (1991) 4 SCNJ 44, amongst others.

Counsel stated the ingredients necessary to be established for a charge of culpable homicide punishable with death to be established and asserted that all the ingredients must be established beyond reasonable doubt and he referred to the cases of Adama vs State (2007) 2 NCC 191 and Kaza vs State 22 NSCQR (pt 2) 1351. Counsel stated that there was contradiction in the testimonies of the first and second prosecution witnesses as to the place of occurrence of the act of stabbing and that while the first prosecution witness said that it happened inside the house, the second prosecution witness said it happened at the entrance of the house. Counsel stated that there was evidence before the lower Court that the Appellant and the deceased ran into a house in the course of the fight between them and that the first and second prosecution witnesses did not follow the Appellant and deceased into the house and that as such the witnesses were not in a position to give evidence on who stabbed who. Counsel stated that the lower Court fell into error when it accepted the extra judicial statement of the second defence witness which was contradicted by the oral testimony in Court as the lower Court cannot pick and choose between the two evidence. Counsel urged this Court to resolve the first issue for determination in favour of the Appellant.

In response, Counsel to the Respondent itemized the ingredients that must be established to sustain a charge of culpable homicide punishable with death and he traversed through the evidence led by the prosecution witnesses in proof of each of the ingredients and the portions of the judgment where the lower Court made findings affirming that the Respondent led clear and cogent evidence to establish the ingredients of the offence beyond reasonable doubt. Counsel stated that the evidence of the prosecution witnesses were uncontroverted and were not discredited by the defence and that the Respondent discharged the burden of proof placed on it by producing credible and conclusive evidence in proof of the guilt of the Appellant beyond reasonable doubt and he referred to the cases of Chukwurah Vs FRN (2011) SCNJ 40 and Eke vs State (2011) 2 SCNJ 57. Counsel stated that the onus shifted to the Appellant to rebut the evidence of the prosecution witnesses but that the Appellant failed woefully to rebut the assertion that he was the person that murdered the deceased and he referred to the case of Jua Vs State (2010) 2 SCNJ 224.

Counsel stated that it was incorrect, as asserted by the Appellant, that the lower Court did not make a finding as to whether it was a knife that was used to cause the death of the deceased or something else as a finding was clearly and unambiguously made by the lower Court in the judgment that it was a knife that was the murder weapon.
Counsel said that the fact of the Respondent not tendering the knife used in stabbing the deceased in evidence was a non-issue as it was unnecessary and he referred to the case of Garba Vs State (2000) 4 SC 156. Counsel stated that there was clear evidence led through the testimonies of the first and second prosecution witnesses that the Appellant stabbed the deceased in the chest with a knife and that the deceased died shortly thereafter while being conveyed to the hospital and that the need to tender the knife was not a practical legal necessity. On the issue of malice afterthought, Counsel stated that under the Penal Code, the intention of a person who commits an offence can always be inferred from the nature of the injury inflicted, the weapon used and the part of the body that was struck and that once it has been established that the act of an accused person leading to the death of a deceased was unlawful, the accused would be guilty of murder irrespective of his intention and he referred to the cases of Michael Vs State (2008) 13 NWLR (pt 1104) 361 and Audu Vs State (2003) 7 NWLR (pt 820) 516. Counsel said that the archaic doctrine of malice afterthought no longer governs criminal responsibility in our jurisprudence and he referred to the case of Adekunle Vs State (2006) 6 SCNJ 225.

On the issue of the alleged contradictions in the testimonies of the first and second prosecution witnesses, Counsel stated that the two witnesses were eye witnesses of the incident leading to the death of the deceased and he traversed through their testimonies and stated that there was indeed no contradiction in their evidence and that their testimonies painted one and only one picture. Counsel said that any discrepancy in their evidence relates only to minor details and not the substance on the act of the stabbing and that the law is that it is not every inconsistency or contradiction in evidence that affects the veracity of the evidence and he referred to the case of Musa Vs State (2007) 7 SCNJ 329. Counsel urged the court to resolve the first issue for determination in favour of the Respondent.

The charge against the Appellant before the lower court was culpable homicide punishable with death. It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death of grievous bodily harm was its probable consequence.

It must, however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke V. State (2013) 16 NWLR (Pt 1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt 1395) 568.

On the first ingredient of the offence of culpable homicide punishable with death, it was not in contest between the parties that the person said to be the deceased in the charge against the Appellant, Usman Shehu Aliyu, is dead and neither is it in contest that he died on the 11th day of May, 2008 at Hausawa Quarters in Tarauni Local Government Area of Kano State. There is a medical report confirming the death and the lower court made a finding on the point in the judgment and the Appellant did not appeal against this finding.

The law recognizes that in proving that the act of an accused person caused the death, a case can be proved beyond reasonable doubt either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive – Oguno Vs State (2013) 15 NWLR (Pt 1376) 1 and Babatunde Vs State (2014) 2 NWLR (pt 1391) 298. Reading through the judgment, it is obvious that the lower Court relied on the eye witness account of the first and second prosecution witnesses along with the medical report and the confessional statements of the Appellant in making its finding on the cause of death of the deceased and on the causal link between act of the Appellant and the cause of death.

The first prosecution witness was one Ghali Ali and he testified that on the 11th of May, 2008, at around 5.30 pm, he and the deceased evacuated a culvert and had finished the task and the deceased was parking the tools that they used when the Appellant came and started abusing the deceased. He testified that despite his reprimand, the Appellant continued abusing the deceased and that this angered the deceased and, a fight ensued and in the course of which the Appellant drew a knife and tried to stab the deceased but injured himself instead and the knife fell to the ground and the deceased stepped on the knife to prevent the Appellant from picking it up. He gave evidence that eventually the Appellant picked up the knife and ran to his house and the deceased pursue him into the house and the Appellant stabbed the deceased on the chest and pushed the deceased outside and that the deceased fell to the ground and the Appellant stood over him on the ground. He stated that he was barely three meters away from where the Appellant stabbed the deceased and he saw all that happened and that the deceased was thereafter taken to the hospital and that he did not follow them to the hospital. Under cross-examination, the witness stated that the Appellant pulled the knife from around his waist and that he did not follow when the deceased pursued the Appellant and that he just saw the deceased fall down with a stab wound on his chest and that the deceased had a bad leg and was bigger and older than the Appellant.

The second prosecution witness was one Yahaya Yakubu Umar and he gave evidence that on the 11th of May, 2008 he was at the scene of the incident around 5pm waiting for the deceased to complete the clearing of a culvert that the deceased and the first prosecution witness were doing as he and the deceased were planning to go to Sahad Stores thereafter. He testified that after clearing the culvert, the deceased washed the shovel and the other tools used and parked them and was taking them to one uncompleted building when the Appellant came out of his house and started abusing the deceased and that the deceased ignored the Appellant and went to drop the tools and that on the way out, the Appellant continued to abuse the deceased and dared the deceased to react. He gave evidence that a fight ensued and during which the Appellant drew a knife and the deceased knocked the knife to the ground and by reason of which the Appellant sustained a small cut on his hand and the deceased stepped on the knife to prevent the Appellant picking it up but that the Appellant eventually succeeded in picking up the knife and ran to his house. He stated that the deceased picked up a rake and chased the Appellant who was standing by his house and he ran after the deceased to stop him but that by the time he got there, the Appellant had stabbed the deceased on the chest with the knife and that the deceased reeled back and fell on him and he turned the deceased around and saw blood gushing from the stab wound. He stated that they thereafter conveyed the deceased to the hospital and that they stopped at Hockey Ground Police Station to pick a policeman to follow them to the hospital but the deceased died before they got to the hospital and that the deceased was confirmed dead by the doctors at the Emergency Section of the Murtala Mohammed Specialist Hospital and his corpse was taken straight to the mortuary. The testimony of the witness was not discredited or disparaged under cross-examination.

The fourth prosecution witness was Police Sergeant Sulaiman Saidu with the Filin Hockey Divisional Police Station Kano and he confirmed that on the 11th of May, 2008 around 5.30pm a policeman was detailed to follow the deceased to the hospital and he testified that he visited the scene of the crime and he recovered the knife with which the deceased was stabbed from the sister of the Appellant. He gave evidence that he recorded the statement of the Appellant and he narrated how the statement was recorded, signed by the Appellant and endorsed by a senior police officer and he tendered the statement as Exhibit A. The only issue raised by Counsel to the Appellant at the tendering of the statement was that the Appellant denied making the statement. The statement was a confessional statement and it read in part thus:
“… I and Usman together with one Gali they are removing dirty from gutter. Usman was throwing the dirty water into my place where I am selling mango. I ran to my father’s house and take rake to take … Gali told me I should stop that I am not supposed to do that. Usman was going to return the pipe at the rear of the house. I abused him and from there Usman came out and started beating me. I took my knife and stabbed Usman Shehu Aliyu on his ribs and the second one I stabbed Usman on his stomach …”

The witness also stated that he obtained a medical report of cause of death from the Murtala Mohammed Specialist Hospital Kano and he tendered same as Exhibit B.
The report stated that on examination, after he was brought in, the deceased was found to be clinically dead with a site penetrating injury in the chest and he was certified dead and transferred to the mortuary.

The fifth prosecution witness was one PC Mu’azu Sani with the State CID and he testified that the case was transferred from the Filin Hockey Police Division and he was detailed to record the statement of the Appellant and he gave evidence of how he recorded the statement of the Appellant in Hausa and of how the Appellant signed the statement and of how the statement was endorsed by a senior police officer and he tendered the statement as Exhibit C. The only issue raised by Counsel to the Appellant at the tendering of the statement was that the Appellant denied making the statement. The sixth prosecution witness was one Kabiru Abdu, a staff of the Appeals and Translation Registry of the High Court of Kano Sate and he testified that he translated the statement of the Appellant, Exhibit C, into English and he tendered the English version as Exhibit C1. Exhibit C1 read, in part, thus:
“… I can remember on 11-05-08 at about 5pm in the evening when I was selling mangoes at Hausawa, near to the road, then somebody by name Usman when they were working to clean the gutter together with Gali then he Usman fetch the gutter and place it where I was selling mango, then I too had fetched the gutter in order to pour on him then he Gali whom they were working together said I should leave it.
Then but Usman entered into their house and kept pipe of which they were working with it, as he came out, then loose his wrist watch and he punched me and tore my gown. Then I too, I picked out my knife and cut him with it in his chest and whereas he took rake and followed me into our house and hit me with it. Then after he came out then he fell down …”

The Appellant called three witnesses and he testified as the third defence witness. The Appellant denied making the two confessional statements. It is trite that a confession does not become inadmissible merely because an accused defendant denies having made it. The denial of a statement made by an accused defendant to the police is only an issue of fact to be decided in the judgment and it is not an issue which affects admissibility of the statement – Akpa Vs State (2008) 14 NWLR (Pt 1106) 72, Sule Vs State (2009) 17 NWLR (pt 1169) 33, Mbang V. State (2010) 7 NWLR (Pt 1194) 431, Nwokearu Vs State 2010) 15 NWLR (pt 1215) 1, Dele Vs State (2011) 1 NWLR (pt 1229) 508.

What is required is that before the court would believe and act on such a retracted confession it should subject the confessional statement to the following tests:
i. whether there is anything outside the confession which shows that it may be true;
ii. whether it is corroborated in any way;
iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested;
iv. whether the defendant had the opportunity of committing the offence;
v. whether the confession is possible; and
vi. whether the alleged confession is consistent with other facts that have been ascertained and established.
See the cases of Osuagwu Vs State (2009) 1 NWLR (pt 1123) 523, Kabiru Vs Attorney General, Ogun State (2009) 5 NWLR (Pt 1134) 209, Nwokearu Vs State supra and Dele Vs State supra. In the instant case, it is clear that the two confessional statements are consistent with each other and they find corroboration in the unchallenged testimonies of the first and second prosecution witnesses and in the medical report of the cause of death. The contents of the confessional statements are consistent with the facts established in the testimonies of the prosecution witnesses.
The denial of the confessional statements by the Appellant was clearly an afterthought. They were made by the Appellant. It is trite that a conviction can be sustained on a free and voluntary confession of a defendant notwithstanding that he retracted the confession – Solola Vs State (2005) 11 NWLR (Pt 937) 460, Osuagwu Vs State (2009) 1 NWLR (pt 1123) 523, Arogundade Vs State (2009) 6 NWLR (Pt 1136) 165, Oseni Vs State (2011) 6 NWLR (pt 1242) 138.

Counsel to the Appellant stated that the lower Court was in error to have convicted the Appellant when the alleged weapon, the knife, which the Appellant used in stabbing the deceased was not tendered in evidence and with no explanation offered for the non-tendering. As rightly submitted by Counsel to the Respondent, the law is that where the cause of death is clear and there is cogent and credible evidence linking the act of an accused defendant with the cause of death, as in the instant case, the production of the murder weapon at trial is not necessary and failure to do so is inconsequential – Garba Vs The State (2000) 4 SCNJ 315, Ochiba Vs State (2010) LPELR-9002 (CA), Kabaka Vs State (2010) LPELR-4303(CA), Salahudeen Vs State (2013) LPELR-21851(CA). But this can only be the case because even where the corpse of a deceased is not found, it will not frustrate conviction where the evidence is compelling that the person has been killed and that the act of the accused was responsible for the death – Akpa Vs State (2008) 14 NWLR (Pt 1706) 72 and Ochemaie Vs State (2008) 15 NWLR (pt 1109) 57. Talk less of a murder weapon.

Counsel to the Appellant also suggested that there was a contradiction in the evidence of the first and second prosecution witnesses on where the stabbing incident occurred, whether it was inside the house of the Appellant or at the entrance of the house. Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains – Bassey Vs State (2012) 12 NWLR (pt 1314) 209, Jeremiah Vs State (2012) 14 NWLR (Pt 1320) 248 and Egwunmi Vs State (2013) 13 NWLR (pt 1372) 525.

The evidence of the first prosecution witness on the stabbing of the deceased was that in the course of the fight between the Appellant and the deceased, the knife drawn by the Appellant fell to the ground and that the Appellant subsequently picked up the knife and ran to his house and the deceased pursue him into the house and the Appellant stabbed the deceased on the chest and pushed the deceased outside and that the deceased fell to the ground and the Appellant stood over him on the ground. The evidence of the second prosecution witness was that in the course of the fight between the Appellant and the deceased the knife drawn by the Appellant fell to the ground and that the Appellant subsequently succeeded in picking up the knife and ran to his house. He stated that the deceased picked up a rake and chased the Appellant who was standing by his house and that he ran after the deceased to stop him but that by the time he got there, the Appellant had stabbed the deceased on the chest with the knife and that the deceased reeled back and fell on him and he turned the deceased around and saw blood gushing from the stab wound. It is obvious that the two pieces of evidence say the same thing and there was no contradiction.

Going forward and even assuming that there were inconsistencies in the testimonies of the two prosecution witnesses on the place of occurrence of the stabbing, it is settled law that contradiction in the evidence of a witness that would be fatal must relate to material facts and be substantial. It must deal with the real substance of a case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial – Osetola Vs State (2012) 17 NWLR (pt 1329) 251, Osung V. State (2012) 18 NWLR (pt 1332) 256, Famakinwa vs State (20l3) 7 NWLR (Pt 1354) 597, Musa Vs State (2013) 9 NWLR (Pt 1359) 274 and Iregu Vs State (2013) 12 NWLR (pt 1367) 92. In Theophilus Vs The State (1996) 1 NWLR (pt 423) 139, the Supreme Court at 155 A-B put the point thus:
“… It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit therefrom.”
This point was reiterated by Rhodes-Viviour, JSC in Egwunmi Vs State (2013) 13 NWLR (pt 1372) 525, a matter on culpable homicide, at page 555 D-F thus:
“When two or more persons are called as witnesses to say what they saw on a particular day there are bound to be discrepancies in their testimonies. The court is only concerned with testimony on material facts and not peripherals that have no bearing on the substance in issue.
The material facts in this case are: (i) when was Alhaji Umoru Bamayi killed; (ii) how was he killed; (iii) who killed him. It is only if there are contradictions in the testimony of the prosecution witnesses on the above that grave doubt would be cast on the prosecution’s case.”
It is evident that the alleged contradiction, if any, was not on facts material to establishing the guilt of the Appellant in the instant case.

The testimonies of the prosecution witnesses, the medical report and the confessional statements of the Appellant unequivocally proved the cause of death of the deceased and that it was the act of Appellant that caused the death of the deceased. This Court cannot thus fault the finding of the lower Court that the second ingredient of the offence of culpable homicide punishable with death was established by cogent and credible evidence.

The third requirement of the offence of culpable homicide punishable with death is whether the Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. On this, the lower Court stated thus:
“From the evidence on record, the evidence of PW1 and PW2 is that the accused stabbed the deceased with a knife on the chest. In exhibit D, DW2 said when the deceased opened his shirt, she saw blood on his chest. Exhibit B the medical report states that Shehu Usman Aliyu was found clinically dead with a stre of penetrating injury in the chest. All these pieces of evidence when put together will lead to the inevitable conclusion that stabbing a human being with a knife on the chest would lead to the conclusion that the accused knew or had reason to know that death would be the probable and not likely consequence of his act.
I therefore hold that the nature of the weapon used, and the position of the injury clearly established that the accused intended to kill the deceased, thus proving the last ingredient of the offence of culpable homicide punishable with death.” (See pages 89 to 90 of the records)

The third ingredient of culpable homicide punishable with death is what is known as “specific intention” necessary for sustaining a murder charge. It is the law that a person intends the natural consequences of his action and if there was an intention to cause grievous bodily harm and death results, then the defendant must be held culpable for the offence of murder – Nwokearu Vs State (2010) 15 NWLR (pt 1215) 1, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548.

In order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brualized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused – Iden V. State (1994) 8 NWLR (Pt 365) 719.
Thus, in Ejeka Vs State (2003) 7 NWLR (Pt 819) 408, where the appellant stabbed the deceased with a jack knife at a fragile part of the body such as the heart, the Supreme Court held that this clearly explained that the appellant’s intention was to cause grievous injury to the deceased. Similarly, in Nwokearu Vs State supra, where the appellant stabbed the deceased in the stomach with a knife, the Court of Appeal held that this showed an intention by the appellant to cause grievous harm to the deceased. Dovetailing to the instant case, it cannot be argued that the use of a knife by the Appellant of stab the deceased in the chest does not show a clear intention by the Appellant to cause grievous bodily harm to the deceased. The issue of malice afterthought harped upon by Counsel to the Appellant, as rightly stated by Counsel to the Respondent, is no longer part of our criminal jurisprudence and no longer governs criminal responsibility – Nwali Vs State (1991) 3 NWLR (Pt 182) 663, Adekunle Vs State (2006) 14 NWLR (Pt 1000) 717. The lower Court was on firm ground when it found that the Respondent led cogent evidence to establish the third ingredient of the offence of culpable homicide punishable with death.

The Respondent thus led credible and cogent evidence to prove the ingredients of the charge brought against the Appellant. The first issue for determination in this appeal is resolved in favour of the Respondent.

On the second issue for determination of whether the lower Court properly considered the offences of provocation and self defence, Counsel to the Appellant stated that in a criminal trial, a court is enjoined to consider not only the defences raised by an accused defendant but also all such defences that may be available to him on the evidence led, no matter how weak or stupid they may seem, and that this is more so in murder trials where the punishment is death and he referred to the cases of Nwankwoala Vs State (2006) 14 NWLR (Pt 1000) 663, Nwaeghinya Vs State 21 NSCQR 570 and Shande Vs State 22 NSCQR 570, amongst others. Counsel referred to the cases of Stephen Vs State (1986) 12 SC 450 and Lado Vs State (1999) 6 SCNJ 1 on what constitutes the defence of provocation and stated that the Respondent failed to show that there was a recess or possible recess in the mind of the Appellant for passion to cool after the Appellant suddenly and temporarily lost his passions and self control arising from his anger, resentment, rage or fury and that the Respondent also failed to show or give evidence of organized or premeditated vendetta and he referred to the case of Kaza Vs State 23 NSCQR (pt 2) 1351. Counsel stated that for the Respondent to deprive the Appellant of the defence of provocation, it must prove that any of the instances set out under section 38 of the Penal Code had arisen and Counsel listed the instances and referred to the case of Kada Vs Sate (1991) 11 SCNJ 19. Counsel urged this Court to hold that the act of the deceased directed at the Appellant could cause a reasonable person, and did actually cause in the Appellant, a sudden and temporary loss of self control subjecting him to passion at the time and not master of his mind and to avail the Appellant the defence of provocation.

On self defence, Counsel referred to the cases of Nwaekweghinya Vs State 21 NSCQR 570 and Mgboko Vs State (1972) 2 SC 123 on the constituents of the defence and stated that in the instant case, the Appellant demonstrated his willingness not to fight the deceased while the deceased displayed a desire to fight and occasion grievous bodily harm. Counsel stated that the deceased threw dirt on the business place of the Appellant, showered abuses on him, struck him with a blow and that when the Appellant ran to his house, the deceased picked a rake, a deadly weapon, and chased him and that the Appellant reasonably knew and sensed danger at that point and the need to protect himself with necessary force. Counsel urged this Court to hold that the objective test of reasonableness for self defence was available to the Appellant in the circumstances and that the disparity between the deceased, who was described as huge, and the Appellant and the fact that the weapon used was the same that the deceased was carrying support this position and he referred to the cases of Udofia Vs State (1984) 1 SC 139 and R Vs Jinodu (1961) All NLR (pt 4) 627. Counsel stated that the onus was on the Respondent to disprove the Appellant’s plea of self defence and not on the Appellant to establish the defence. Counsel urged the Court to uphold the plea of self defence.

In response, Counsel to the Respondent stated that by raising the defences of provocation and self defence, the Appellant has admitted that he did the act for which he was charged and he referred to the case of Sule v. State (2009) 6 SCNJ 65. Counsel stated that the defence of self defence was considered and rejected by the lower Court on the basis of the evidence led on record and Counsel proceeded to itemize the ingredients of the defence as laid down in Omoregie Vs State (2008) 18 NWLR (Pt 1119) 464 and stated that there was clear evidence that it was the Appellant that initiated the encounter leading to the fight between him and the deceased by abusing the deceased and that it was the Appellant that first drew out a knife to stab the deceased before running to the entrance of his house. Counsel stated that there was nothing in the evidence showing the necessity for taking the life of the deceased and that the ingredients of the defence of self defence did not co-exist in the circumstances of this case.

On defence of provocation, Counsel stated that the defence was also considered and rightly rejected by the lower Court on the available evidence and Counsel referred to the provisions of Section 221 (1) of the Penal Code which he said provides for the defence as it relates to a charge of culpable homicide punishable with death and stated that the Appellant did not adduce credible evidence to establish the ingredients of the defence as he was obligated by law to do and he referred to the case of Kaza Vs State (2008) 2 SCNJ 373. Counsel urged the Court to uphold the decision of the lower Court on the point.

It is correct, as stated by Counsel to the Appellant, that in all cases attracting capital punishment, it is incumbent on the court to consider all the defences put up by the accused person, express or implied, in the evidence before the court. No matter the level of the defences whether they are full of figments of imagination, fanciful, replete with porous lies or even doubtful, the court must not be wary to give them due consideration. Thus, if from the totality of evidence, a particular defence avails an accused person in a criminal matter, he should be given the benefit of that defence notwithstanding the fact that he did not specifically raise it. However, the court is only under an obligation or duty to consider such defences open to an accused person as disclosed or supported by the evidence on the printed record. A court of law will not presume or speculate on the existence of facts not placed before it – Ani Vs State (2003) 11 NWLR (Pt 830) 142, Yaro V. State (2007) 18 NWLR (Pt 1066) 215, Shalla Vs State (2007) 18 NWLR (Pt 1066) 240, Edoho Vs State (2010) 14 NWLR (Pt 1214) 651.

The lower Court considered the defence of self defence in the judgment. The lower Court referred to the provisions of Sections 62, 63 and 65 of the Penal Code on self defence and the conditions necessary for the defence to operate as laid down by the Courts and it stated thus:
“In his evidence DW3, the accused, told this court that:
‘… As I turned to go to my place of business, Usman floored me, and also hit me on my stomach. That as I tried to escape Usman again hit me with a rake on my hand, and also hit me with the rake inside our house. That when Usman hit me with the rake, both of us fell down, but that Usman fell on the rake, stood up went out of the house, and fell down again.’
The evidence of PW1 and PW2 earlier quoted revealed that the accused ran and stood in front of their house, and when the deceased followed him, stabbed him with a knife in the chest.” (See page 91 of the records)

The lower Court then related the evidence led to the conditions for the defence of self defence to operate and stated that from the evidence of the first and second prosecution witnesses, eye witnesses to the incident, the fight broke out because the Appellant abused the deceased and that there was no evidence on record to show the necessity of taking the deceased’s life as the only option.

By virtue of Section 222 (2) of the Penal Code, culpable homicide is not punishable with death if the offender, in the exercise of good faith of the right of private defence of a person or property, exceeds the powers given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. For the defence to avail an accused person, he must not be the aggressor in the first instance. He must have acted in good faith without premeditation and intention of doing more harm than necessary and the act of the deceased must be sufficient to excite in the accused person a reasonable apprehension of imminent danger of death or grievous harm to justify using appropriate defence.
The conditions that must be satisfied by an accused person to be availed by the plea of self defence are (i) the accused must be free from fault in bringng about the encounter; (ii) 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; (iii) there must be no safe or reasonable mode of escape by retreat; and (iv) there must have been a necessity for taking life. All these conditions must co-exist and be established for the defence to be sustained – Musa Vs State (2009) 15 NWLR (Pt 1165) 467, Jeremiah Vs State supra.

The Appellant led no evidence to establish any of the above conditions and evidence to sustain the conditions was not available on the records. The case of the Appellant in his defence was that he did not stab the deceased. This is contradictory to a defence of self defence which, by necessary implication, amounts to an admission by an accused person to the killing of a deceased, but in defence of person or property. It is not enough for an accused person to rely on the defence without leading evidence to show the circumstances under which he is claiming self defence to exculpate him from the offence of culpable homicide punishable with death – Odunlami Vs Nigerian Navy (2013) 12 NWLR (pt 1367) 20. As rightly noted by the lower Court the credible evidence on record was to the effect that it was the act of the Appellant that led to the fight between the Appellant and the deceased. The decision of the lower Court that the defence of self defence was not available to the Appellant in these circumstances cannot be faulted.

The lower Court also considered the defence of provocation. The lower Court referred to the provisions of Section 222 (1) of the Penal Code on provocation and also of Section 38 of the Penal Code which state the exceptions to the defence and it stated thus:
“… the evidence is that when the deceased along with PW1 cleared the gutter in their area, they deposited part of it at the place where the accused sells vegetables as a result of which the accused abused the deceased which resulted in a fight, the fight resulted in the accused stabbing the deceased with a knife on the chest. It is pertinent to note that this piece of evidence was never discredited under cross examination.
By this, it can safely be informed (sic) that the accused provoked the deceased by abusing him, which abuse caused the fight that ended with the accused taking the life of Usman Shehu Aliyu by stabbing him with a knife on the chest. By this act therefore I hold that the defence of provocation will not avail the accused person.”

Provocation is a partial defence for murder in cases where the act or omission causing death was provoked by some conduct of the deceased. It reduces a charge of murder to manslaughter, i.e. charge of culpable homicide punishable with death to culpable homicide not punishable with death, and the idea behind the defence is basically the recognition of human frailty and the tendency to overreact. Provocation means some act of series of acts done by the deceased to the accused which would cause in a reasonable man, and did cause in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.

Under our criminal jurisprudence, provocation which is not at large and which will reduce what would otherwise amount to murder to manslaughter, is a legal concept which is made up of a number of elements which must co-exist within a reasonable time. They are: (a) the act of provocation was done in the heat of passion; (b) the loss of self-control, both actual and reasonable, occurred before there was time for cooling down; and (c) the retaliation is proportionate to the provocation. In other words, where a person who unlawfully kills another, does the act which causes death in the heat of passion caused by grave and sudden provocation and before there is time for passion to cool down and the act causing death is proportionate to the provocation, he is guilty of manslaughter – Uraku Vs State (1976) 6 SC 195, Nwede Vs State (1985) 3 NWLR (pt 13) 444, Ahmed Vs State (1999) 7 NWLR (pt 612) 641, Shalla Vs State supra, Edoho Vs State supra.

The defence of provocation is provided for under Section 222 (1) of the Penal Code and to constitute a defence under the section, provocation must be grave and sudden as to deprive the accused of the power of self-control. It must be established not only that the act was done under the influence of some feeling which took away from the person doing it all control over his action, but that that feeling had an adequate cause. It must be understood that not all provocation will reduce the crime of murder to manslaughter. The test to be applied is that of the effect of provocation on a reasonable man so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the tests in the defence of provocation, it is of particular importance to (a) consider whether sufficient interval has elapsed since the provocation to allow a reasonable man time to cool; and (b) take into account the instrument with which the homicide was effected, for to retort in the heat of passion induced by provocation by a simple blow is a very different thing from making use of a deadly instrument like a concealed knife, and the mode of resentment must beat a reasonable relationship to the provocation if the offence is to be reduced to manslaughter – Musa Vs State (2007) 11 NWLR (pt 1045) 202, Shalla Vs State supra.

As rightly submitted by Counsel to the Respondent, the onus of proving the conditions necessary for the defence of provocation is on the accused person – Kaza V. State (2008) 2 SCNJ 373, Galadima Vs State (2013) 3 NWLR (Pt 1333) 610, Odunlami Vs Nigerian Navy supra. The Appellant, in the instant case, led no evidence to establish the necessary conditions and there was no evidence available on the records establishing the conditions. As stated earlier, the case of the Appellant in his defence was that he did not stab the deceased but that the deceased fell on a rake in the course of the fight between them. This story is inconsistent with the defence of provocation which presupposes that an accused person admits doing the act that he is charged for, but pleads extenuating circumstances. The lower Court was thus on firm ground when it found that the defence of provocation was not available to the Appellant.

The Appellant has not given this Court any reason to disturb any of the findings made by the lower Court in this matter. This appeal is without merit and it is hereby dismissed. The judgment of the High Court of Kano State in Suit No K/16C/2009 delivered by Honourable Justice Yusuf Ubale on the 28th of March, 2012 and the sentence passed therein on the Appellant are hereby affirmed. These shall be the orders of this Court.

DALHATU ADAMU, J.C.A.: I agree

ITA G. MBABA, J.C.A.: I agree with the reasoning and conclusions of my brother H.A.O Abiru JCA, that the appeal lacks merit and should be dismissed.
I too dismiss the appeal and abide by the consequential orders in the lead judgment.

Appearances

Muhammad Naison Sidi with Rabiatu AbdullahiFor Appellant

AND

Shuaibu Sule, DCL Ministry of Justice Kano Sate, with S. Y. YahayaFor Respondent