BUBA SULE v. THE STATE
(2014)LCN/7576(CA)
In The Court of Appeal of Nigeria
On Monday, the 1st day of December, 2014
CA/S/49C/2014
RATIO
EVIDENCE: DYING DECLARATION; WHAT IS A DYING DECLARATION AND WHEN DOES A PIECE OF EVIDENCE PASS AS A DYING DECLARATION
What is a dying declaration? In AKPAN V THE STATE (1992) NWLR (Pt. 248); 1992 7SCNJ 22, Karibi-Whyle JSC answered the question thus
“It is well established in our law that a statement made by a person in imminent fear of death, and believing at the time it is made that he was going to die is admissible as a dying declaration. See Section 33(A) of Evidence Act. See AKINFE V STATE (1988) 3NWLR (PT. 83) 729, OKOKOR V STATE (1967) NMLR 189, R V OGBUEWU (1949) 12 WALA 483. Strict proof of the actual words used by the deceased is generally required in proof of the dying declaration to avoid any uncertainties.”
For a piece of evidence to pass as dying declaration there must be proof that the declarant when talking to the witness was under the apprehension that death was knocking at his door. See OLABODE V THE STATE (2009) 11NWLR (PT. 1152) 254 (S.C) per. TUNDE O. AWOTOYE, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; WHETHER A COURT CAN CONVICT ON THE RETRACTED CONFESSIONAL STATEMENT OF AN ACCUSED PERSON
It is settled that retraction of a confessional statement does not preclude the court from grounding conviction upon it.
See R V OMOKARO (1941) 7WACA 146; ACHABUA V STATE (1976) NSCC 74; YUSUFU V STATE (1976) 6SC. 167, MOHAMMED V STATE (20140 LPELR 2291 (SC)
But there must be some corroborative evidence outside the confession which would make it probable that the confession was true see EJINIMA V THE STATE (1991) 6NWLR (PT 200) 627.
In HARUNA V THE ATTORNEY GENERAL OF FEDERATION (2012) LPELR -7821 (SC) Adekeye JSC had this to say;
“A court can convict on the retracted confessional statement of an accused person but before this is properly done, the trial judge should evaluate the confession and the testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person which is different from his retracted confession and the judge asking himself the following questions -is there anything outside the confession to show that it is true?
a) is it corroborated.
b) are the relevant statements made in it of facts true as far as they can be tested?
c) Did the accused person have the opportunity of committing the offence charge?
d) is the confession possible?
e) is the confession consistent with other facts which have been ascertained and have been proved?” per. TUNDE O. AWOTOYE, J.C.A.
COURT: DUTY OF COURTS; THE DUTY OF THE COURT TO CONSIDER ALL DEFENCE AVAILABLE TO THE ACCUSED
I need to briefly touch on the contention of the appellant that the learned trial Judge failed to consider all the defences available to the accused. This indeed is the requirement of the law. See UMARU ADAMU V THE STATE (2014) LPER -2269 (SC) where Ariwoola JSC on pages 31 -32 of the judgment had this to say:
“the law is clear that in all trials of culpable homicide, the court has the onerous duty to consider;
(a) all the defence raised by the evidence whether the accused person specifically put up such defence or not and
(b) any defence raised by an accused person a matter how weak inconsequential or stupid it may appear must be given due attention see APISHE V THE STATE (1971) 1ALL NLR 50; TAKITA V THE STATE [1969] 1ALL NLR 270; WILLIAMS V IGP [1965] NMLR 470″ The question is, is there any defence raised by the accused disclosed in the evidence? Learned counsel for the appellant submitted the defence of provocation and sudden fight was impliedly raised in the statement of the accused. I respectfully disagree. The accused said he was provoked by an incident he remembered. He said in his statement thus;
“On seeing him my mind went back to the wrist watch issue and I was provoked by then I was in possession of a cutlass.” This is not provocation as known to law. He did not say the victim provoked him.
It is the duty of this court as well as the trial court to consider all defences available to the appellant in a case of culpable homicide see OJO V THE STATE [1973] 11SC (REPRINT) 199 Where Sowemimo JSC on page 9 had this to say.
“It is settled principle that an accused in a murder charge is not restricted in the consideration of his defence to the defence raised by him but it is open to the court to consider other defences available to the accused on the facts preferred or established before the court of trial. On appeal, the appeal court will consider all the defences open to the appellant on the facts established in the court of trial in spite of the fact that such defence or defences were not considered in the lower court.” per. TUNDE O. AWOTOYE, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
M. L. SHU’AIBU Justice of The Court of Appeal of Nigeria
Between
BUBA SULE Appellant(s)
AND
THE STATE Respondent(s)
TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of the appeal filed by the appellant on 23/4/13 vide his Notice of Appeal which contains 5 Grounds of appeal.
The appeal is against the judgment of D. B. Sambo J. delivered on 26/3/2013.
The charge against the accused (now appellant read as follows):
“That you Buba Sule ‘M’ of Sangiwa village Rabah Local Government Area Sokoto on 19/12/2009 at about 4:00hrs at Sangiwa village Rabah Local Government of Sokoto State within Sokoto Judicial Division did commit the offence of culpable Homicide punishable with death in that you caused the death of Abdullahi Mohammed by stricking him severally on his dead with cutlass as a result he fell down and died on the spot, you thereby committed an offence punishable under Section 221(a) of the Penal Code.”
The charge was read to the accused and his plea was taken.
The learned trial Judge proceeded to hear parties and their respective witnesses before giving judgment against, the accused as follows (inter alia);
“In the final analysis the question for determination herein as to whether the prosecution has proved its case beyond reasonable doubt is answered in the affirmative consequently I hereby convict you Buba Sule on the charge of culpable Homicide punishable under Section 221(a) of the Penal Code. I have heard the learned defence counsel pleading that the accused is a minor under 18 years and as such this court should temper justice with mercy much as this court would want to temper justice with mercy it has to do so within the powered of the law. The accused having been convicted under S.221(a) of the Penal Code the sentence is mandatory. I have equally looked into the S.272 of the CPC whether it will assist me to temper justice with mercy unfortunately the accused person does not come within the provision of that law.
Consequently the hands of this court are tight (sic) and must carry at the mandatory provision of the Penal Code to wit, accused must be sentenced accordingly (sic)
In the light of the above therefore this court sentence you Buba Sule to death and you shall be hanged by the next (sic) trial you are certified dead. May God have mercy on your soul.”
It is against this judgment that the appellant filed 5 grounds of appeal. The grounds of appeal (shorn of the particulars) read this:
“GROUND 1
The decision of the court below is unreasonable unwarranted and cannot be supported having regard to the evidence adduced at the trial.
GROUND 2
The Court below erred in Law and occasioned a miscarriage of justice on the Appellant when in convicting and sentencing the Appellant to death for the offence contrary to Section 221 (a) of the Penal Code, it relied strongly on the extra-judicial statement of the Appellant admitted as Exhibit P2 & P2A even where there was no eye witness account of the involvement of the Appellant in the death of the deceased and a fortiori no corroboration of the alleged confessional statement.
GROUND 3
The court below erred in law when in convicting and sentencing the appellant to death for the offence contrary to Section 221 (a) of the Penal Code, it relied on the contradictory evidence of PW2 to convict the Appellant and this has occasioned a miscarriage of justice.
GROUND 4
The court below erred in law when in convicting and sentencing the appellant to death for the offence contrary to Section 221 (a) of the Penal Code, it denied the Appellant his constitutional right to fair hearing thereby occasioning a miscarriage of justice on the Appellant when it failed and or neglected to consider all the defences open up to the Appellant on the evidence adduced before the court below but considered only the case presented by the prosecution against the Appellant.
GROUND 5
The court below erred in law and prejudice the constitutional right of fair hearing of the appellant a guarantee under Section 36 (1) of the constitution of the Federal Republic of Nigeria 1999 when in convicting and sentencing the appellant to death for the offence contrary to Section 221 (a) of the Penal Code, the court refused and or failed to consider the cross examinations of the prosecution witnesses by the appellant counsel before placing probative value on same and using the same evidence in convicting and sentencing the appellant to death for the offence contrary to Section 221 (a) of the Penal Code Law and this has occasioned a miscarriage of justice.”
After transmission of record of appeal to this court, parties filed and exchange briefs of argument.
The appellant’s brief of argument was settled by Ibrahim Abdulllahi, his solicitor. The said brief was filed on 24/9/2014.
The Respondent’s brief of argument settled by Yahaya Abubakar State counsel I, Sokoto State Ministry of Justice was filed on 24/10/2014.
The learned counsel for the appellant formulated four issues for determination. They are:
a. Whether given the circumstances of the case against the Appellant at the court below and having regard to the totality of the evidence had, it was proper for the court below in the absence of corroborative evidence to have relied on the alleged confessional statements of the Appellant admitted as Exhibits P2 & P2A in convicting and sentencing the Appellant to death?
b. Was the court below right when it refused to consider all the defences open up to the Appellant on the evidence before the court below?
c. Did the court below not prejudiced the constitutional right to fair hearing of the Appellant as enshrined under Section 36 (1) of the 1999 Constitution when it failed to consider the cross examination of the prosecution witness by the Appellant and contradiction emanating there before placing probative value on same in convicting and sentencing the appellant to death.
d. Whether a case of culpable homicide punishable with death was made out before the court below to justify the conviction and sentence of the appellant to death.
On issue No (a) learned appellants’ counsel submitted that the learned trial Judge failed to critically take conditions on admission of confessional statement into consideration viz a viz the evidence had otherwise he would have reached the conclusion that Exhibits P2 and P2A needed corroborative evidence which was totally absent. He relied on several judicial authorities including:
GOLDEN DIBIE V STATE [2007] 3SC (PT.1) 176
DAWA V STATE (1980) 8 -11 SC 236 AKPAN V STATE (1992) 6 NWLR (PT. 284) 439
On dying declaration, learned counsel submitted that the court below failed to make any findings on whether or not the deceased declarant believed himself to be in danger of approaching death at the time of declaration. He cited ORSHIOR KUSE V STATE (1969) 1 NWLR 153.
On issue No (b) learned counsel submitted that the learned trial Judge failed to consider all the defences raised on the evidence no matter how slight. He cited OFORLETE V STATE (2000) 3NSC QR 243 at 245.
Learned counsel contended that the appellant raised the defence of provocation in Exhibit P2A. he stated further that the evidence of PW1 and PW2 showed that there was a fight between the accused and the deceased.
He submitted that the issue of the court below not considering all the defences open to the appellant was very vital and vitiated the whole proceedings.
On issue No.(c) learned appellant’s counsel submitted that the learned trial judge did not grant the appellant fair hearing when he failed to consider the pieces of evidence favourable to the appellant/accused. He referred to UKWU YOK V OGBUKE (2010) 5NWLR (PT 1187) 316 at 338; PDP V ABUBAKAR [2007] 3NWLR (PT. 1022) page 515 at 547 and some other cases.
He submitted that the learned trial Judge conspicuously relied heavily on the evidence of PW2 but did not consider the evidence elicited from him under cross examination which was favourable to the accused. He added that the court reproduced in chief which were favourable to the Respondent but failed to do same in respect of the Appellant. He submitted this amounted to a denial of fair hearing of the appellant which nullifies the trial of the lower court. He cited SALU V EGEIBON (1994) 6NWLR (PT 348) 23 at 44 and other cases.
Learned appellant’s counsel further argued that the learned trial judge failed to consider the contradictions emanating from the evidence of the prosecution witnesses before placing probative value on same. He contended that it was the duty of the Respondent to have proffered explanations on the material contradictions but none was proffered. He relied on UBANI V THE STATE (2005) 1QCCR page 131 at 142.
On Issue No (d) learned appellant’s counsel submitted that the prosecution prove its case beyond reasonable doubt.
He submitted that there was conflicting evidence as to who actually died, ABDULLAHI MOHAMMED or ABDULLAHI ALTINE. He referred to the evidence of PW2 as against the charge against the accused. This doubt according to him, ought to have been resolved in favour of the defence.
Learned counsel further submitted that it was not proved that the accused caused the death of the deceased. He contended that the hearsay evidence of the PW2 ought not to have been relied upon by the trial Judge. He submitted that the purported statement of Abdullahi Altine or Abdullahi Mohammed Altine to PW2 did not qualify as dying declaration under s.40 (1 & 2) of the Evidence Act 2011 as it did not relate to the charge.
He relied on HAUSA V STATE (1994) 78 SCNJ 164; EKPOISONCE V STATE (2009) 1NWLR (PT 1122) 354, OZO EMEKA V STATE (1998) 10NWLR (PT 571) 632 and OKOKOR V STATE (1967) NMLR 189
He finally urged the court to resolve all the issues in favour of the appellant.
As aforestated, the Respondent’s brief of argument was filed on 24/10/2014. Respondent’s counsel adopted the issues formulated in the appellant’s brief and argued as follows;
On Issue No.(a) and (b) learned counsel submitted that the prosecution proved and established its case beyond reasonable doubt. He referred to the provision of Section 40 of the Evidence Act stating that it was fully complied with. He further referred to the confessional statement of the accused, Exhibit P2 and P2A and submitted that it bound the accused person. He relied on NWACHUKWU V STATE (2007) IIMJSC. Page 46 SOLALA V THE STATE (2005) 3QCCR 160.
He also contended that the dying declaration was admissible. He cited ORSHIOR KUSE V THE STATE (1969) NMLR 153; OKOROR V THE STATE [1967] NMLR 189.
On the contradictions highlighted by appellants counsel in his brief learned Respondents counsel submitted that they were not material. He cited JOHN AGBO V THE STATE (2007) 2NCC 160 at 170
On issue No.c learned Respondent’s counsel referred to several portions of the record of appeal and submitted that there was no breach of fair hearing of the accused at the court below as ample opportunity was given to him to ventilate his defence.
On Issue No B, learned counsel submitted that no defence was raised by the appellant in both his extra judicial statement and evidence as DW1. He submitted that the confessional statement was direct positive and unequivocal as to the guilt of the accused and so it was strong enough to ground a conviction. He relied on NWACHUKWU V STATE [2007] II OCCR page 80.
He finally urged the court to resolve the issues in favour of the respondent.
I have carefully considered the submissions of learned counsel on both sides as contained in their respective briefs of argument as well as the contents of the record of appeal transmitted to this court.
I have also deeply considered the issues as formulated by the counsel for the parties. I am of the respectful view that the following sole issue is adequate in the determination of this appeal to wit -whether or not the learned trial Judge was right in law to have convicted and sentenced the accused appellant having regard to the evidence adduced before the court and as contained in the record of appeal?
I shall determine this appeal in the light of this sole issue.
The judgment and conviction of the appellant by the learned trial Judge rested on two pillars.
i. The dying declaration of the deceased to PW2 and
ii. The confessional statement of the accused admitted as Exhibits by the trial judge
DYING DECLARATION
PW2, Fatima Umar also known as Fatimatu Altine was the mother of Abdullahi Altine the deceased, she gave evidence inter alia as follows: –
“On a Thursday in the bush accused met my son Abdullahi in the bush rearing cattle. He the accused beat him. Accused met my son sleeping when with the cows, accused used a machete to kill the deceased. The deceased person told me it was the accused. This was the accused. This was before he died when he was conveyed on a horse to hospital. He was wounded on his forehead as well as on his legs. The deceased was cut on his stomach.”
The learned trial Judge held as follows in his judgment on pages 74 -75 of the record;
“From the totality of evidence adduced herein, it is manifest there is no eye witness account of what transpired between the accused person and the deceased. But there is clear evidence from the testimony of PW2 Fatima Altine, the mother of the deceased that she was at the scene immediately and the deceased communicated with her. PW2 said the victim before his death disclosed that the attack on his was by the accused person.Most important in this case to note is what the deceased communicated to PW2 which amount to a dying declaration. I agree with learned prosecuting counsel that dying declaration is admissible.”
The question now is whether or not what the victim communicated to PW2 was a dying declaration in the eyes of the law. What is a dying declaration? In AKPAN V THE STATE (1992) NWLR (Pt. 248); 1992 7SCNJ 22, Karibi-Whyle JSC answered the question thus
“It is well established in our law that a statement made by a person in imminent fear of death, and believing at the time it is made that he was going to die is admissible as a dying declaration. See Section 33(A) of Evidence Act. See AKINFE V STATE (1988) 3NWLR (PT. 83) 729, OKOKOR V STATE (1967) NMLR 189, R V OGBUEWU (1949) 12 WALA 483. Strict proof of the actual words used by the deceased is generally required in proof of the dying declaration to avoid any uncertainties.”
For a piece of evidence to pass as dying declaration there must be proof that the declarant when talking to the witness was under the apprehension that death was knocking at his door. See OLABODE V THE STATE (2009) 11NWLR (PT. 1152) 254 (S.C)
Viewed in the light of the above and the evidence on record there is no proof that the victim was under the apprehension of imminent death when he made the statement to PW2. The learned trial Judge did not, with due respect, advert his mind to this point. See also Section 40 of the Evidence Act. The learned trial Judge was therefore wrong to have relied on the statement of the victim which did not comply with the requirement of Section 40 of the Evidence Act and decided authorities on dying declaration.
CONFESSIONAL STATEMENT OF THE ACCUSED
The first question to ask is whether or not the accused retracted the confessional statement admitted as Exhibits P2 and P2A.
The statement of the accused was tendered by Sgt Mohammed Bawa, PW4 at the point it was tendered as exhibit counsel for the accused objected thus (on page 36 of record);
“We object to the admissibility of the two documents because the statements were not made voluntarily. The accused was promised at the time he gave statement that he will be assisted. This was done outside the cautionary words. The accused was not taken before ASP Nasiru because he did not write his name. the ASP did not sign but only the IPO and the accused thumb print. The thumb print is not that of accused person.”
There is need to scrutinize the objection of defence counsel as stated above. It is;
1. That the statement was not voluntarily made or
2. The accused did not make the statement at all.
A trial within trial is conducted when accused person objects to the admissibility of the confession because it was not voluntarily made. See LASISI V THE STATE [2013] LPER 20183 SC
The learned trial judge proceeded rightly to conduct a trial within trial but the trial was aborted when the counsel for the accused withdrew his objection to the admissibility of the statement of the accused on 21/11/2012 (see page 42 of record).
The Hausa and English versions of the statement of the accused were admitted consequently as Exhibits P2 and P2A.
But the objection of the accused was also to the effect that he did not make the statement. This becomes clearer when one looks at his evidence under examination in chief on page 48 of record and under cross-examination on pages 49 -50 of record.
On page 48 of the record the accused said;
“It is true police said I made a statement I was arrested and brought to Ghandi police station. The DPO asked me if I knew Abdullahi the deceased and if something happened between us, I said nothing happened. From there I was taken to Rabah Police Station where I spent 3 days in detention. I was asked about Abdullahi and I again said nothing was between us. There I made a statement in the police station. From Rabah I was brought to State CID Sokoto. when I came to CID I was locked up in a room I was challenged why I beat him and I denied. I saw in the CID an officer who brought out papers and began to write later I was asked to sign but I complained to them that I was not the one who committed the offence.”
On pages 49 -50 of the record, the accused under cross-examination
“It is true in my statement I protested that I am not the one who committed the offence under consideration. I want this court to believe that even though I protested about the death of Abdullahi. I only knew of his death in this court.
Thumb print is my usual way of signing. I made statements to the police in different police stations and equally signed them.”
It is settled that retraction of a confessional statement does not preclude the court from grounding conviction upon it.
See R V OMOKARO (1941) 7WACA 146; ACHABUA V STATE (1976) NSCC 74; YUSUFU V STATE (1976) 6SC. 167, MOHAMMED V STATE (20140 LPELR 2291 (SC)
But there must be some corroborative evidence outside the confession which would make it probable that the confession was true see EJINIMA V THE STATE (1991) 6NWLR (PT 200) 627.
In HARUNA V THE ATTORNEY GENERAL OF FEDERATION (2012) LPELR -7821 (SC) Adekeye JSC had this to say;
“A court can convict on the retracted confessional statement of an accused person but before this is properly done, the trial judge should evaluate the confession and the testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person which is different from his retracted confession and the judge asking himself the following questions -is there anything outside the confession to show that it is true?
a) is it corroborated.
b) are the relevant statements made in it of facts true as far as they can be tested?
c) Did the accused person have the opportunity of committing the offence charge?
d) is the confession possible?
e) is the confession consistent with other facts which have been ascertained and have been proved?”
I have combed the entire evidence adduced as per the record of appeal. It is clear that there was no eye witness to the crime. The learned trial Judge referred to the cutlass tendered as a form of corroboration of the retracted confessional statement of the accused. I must state that with due respect I disagree.
Even from the prosecution case how the cutlass came to be registered as exhibit is not clear. The IPO, Sgt Bawa said he did not know when the cutlass was registered. He did not know when it was recorded at the police station.
The accused denied having anything to do with the cutlass.
A piece of evidence with doubtful background cannot confirm or corroborate a confessional statement which is being retracted. A confused piece of evidence cannot be used to clear another confusion in the evidence.
I have also observed that the learned trial judge also drew corroboration from the similarity in the evidence of the prosecution and the retracted statement. I still want to disagree on this over-zealous Investigating Police Officers have a way of composing statements for the accused in alignment with the investigation conducted. The fact that the retracted confessional statement revealed that the deceased was struck on the head thrice and the investigation revealed the same should not be held to be corroborative having regard to the fact that in some cases the investigating police officers are also the author of the statements. What should be corroborative in my respectful view should be a piece of evidence outside the confessional statement that is independent of such statement like;
a. Incriminating evidence recovered from accused with properly executed search warrant.
b. Blood stained items backed by forensic expert’s evidence or report.
c. Writing of the accused backed by hand writing analyst’s report.
d. Gun and expelled bullets backed by ballistic expert’s report.
e. Demeanour of the accused in the witness box or in court etc.
What happens when accused retracts his statement? If the statement was not made voluntarily it implies an admission that he made the statement but involuntarily. See ABDULLAHI IBRAHIM V THE STATE [2013] LPELR -2188 3 (SC) per Akaahs JSC.
It is however different when the accused says he never made the statement.
In this case, the accused at the point of tendering of the statement of the accused said through his counsel on page 36 of record thus;
“We object to the admissibility of the two documents because the statements were not made voluntary. The accused was promised at the time he gave statement that he will be assisted.
The accused was not taken before APS Nasiru because he did not write his name. The ASP did not sign but only the IPO and the accused thumb print. The thumbprint is not that of accused person.”
The meaning of the above in my respectful view is that the accused made the statement tendered. It is therefore surprising that the accused in his defence turned round to deny making the statement. The shiftiness of the accused in his defence on the issue of the statements suggests that the accused was not saying the truth, thereby confirming that he actually made the statement and that it contained the truth.
The learned trial Judge was therefore right to have relied on it in convicting the accused. The shiftiness of the accused lends corroboration to the authenticity of the confessional statement. It is pertinent at this juncture to quote the confessional statement of the accused for clarity’s sake:
“I of the above name and address thereby elect to give my statement as follows: I was born about 17years ago at Sangiwa village Rabah local Government Sokoto my occupation is rearing of domestic animals. On 17/2/2009 I visited my proposed wife by name Inno. I then asked her of one wrist watch I bought for her. She then said she gave it to one Abdullahi Muhammed of our village. I then left her and came back home. That day I looked for Abdullahi but did not see him. On the 18/2/2009 I was rearing my animals when I saw Abdullahi together with one of his friends, I then asked him but he denied any knowledge of the writs watch. On the 19/2/2009 early in the morning I was passing near Abdullahi’s house I saw him lying sleeping outside. On seeing him my mind went back to the wrist watch issue and I was provoked by then I was in possession of a cutlass. I then cut Abdullahi Mohammed on his head three times with the cutlass. I saw blood coming out from his head I then ran away. Later I was arrested by the police with an allegation that Abdullahi died as a result of the injury I inflicted on him. Honestly, I cut Abdullahi on his head because he intended to snatch my proposed wife. That is all I have to state.”
The learned trial Judge rightly relied on the above statement.
I therefore resolve the sole issue in favour of the Respondent.
I need to briefly touch on the contention of the appellant that the learned trial Judge failed to consider all the defences available to the accused. This indeed is the requirement of the law. See UMARU ADAMU V THE STATE (2014) LPER -2269 (SC) where Ariwoola JSC on pages 31 -32 of the judgment had this to say:
“the law is clear that in all trials of culpable homicide, the court has the onerous duty to consider;
(a) all the defence raised by the evidence whether the accused person specifically put up such defence or not and
(b) any defence raised by an accused person a matter how weak inconsequential or stupid it may appear must be given due attention see APISHE V THE STATE (1971) 1ALL NLR 50; TAKITA V THE STATE [1969] 1ALL NLR 270; WILLIAMS V IGP [1965] NMLR 470” The question is, is there any defence raised by the accused disclosed in the evidence? Learned counsel for the appellant submitted the defence of provocation and sudden fight was impliedly raised in the statement of the accused. I respectfully disagree. The accused said he was provoked by an incident he remembered. He said in his statement thus;
“On seeing him my mind went back to the wrist watch issue and I was provoked by then I was in possession of a cutlass.” This is not provocation as known to law. He did not say the victim provoked him.
It is the duty of this court as well as the trial court to consider all defences available to the appellant in a case of culpable homicide see OJO V THE STATE [1973] 11SC (REPRINT) 199 Where Sowemimo JSC on page 9 had this to say.
“It is settled principle that an accused in a murder charge is not restricted in the consideration of his defence to the defence raised by him but it is open to the court to consider other defences available to the accused on the facts preferred or established before the court of trial. On appeal, the appeal court will consider all the defences open to the appellant on the facts established in the court of trial in spite of the fact that such defence or defences were not considered in the lower court.”
Learned counsel hammered on the different names given to the deceased by the PW2 and the charge -Altine Abdullahi and Abdullahi Muhammed as constituting material contradictions that were not considered. I am however unable to see how any of the witnesses was misled by the names. It is clear that the accused had no doubt as to the identity of the deceased. I therefore hold that the contradiction is immaterial.
I have gone through the facts of this case and the confessional statement of the accused on which the learned trial Judge relied to convict the appellant I am unable to see any defence available to the accused/appellant yet unconsidered which would have affected the verdict of the lower court.
I have no hesitation in dismissing this appeal for lack of merit. I affirm the judgment and sentence of Hon. Justice D. B. Sambo delivered in Suit No. SS/16c/2011 BUBA SULE V THE STATE on 26/3/2013 at High Court of Justice, Sokoto.
AHMAD O. BELGORE, J.C.A.: I have read, before now, the judgment just delivered by my learned brother, Tunde O. Awotoye, JCA., I agree that the appeal is devoid of merit and should be dismissed.
I dismiss the appeal.
M.L. SHUAIBU, J.C.A.: I have had the privilege of reading in draft the lead judgment delivered by my learned brother Awotoye, JCA. I entirely agree with his reasoning and conclusions contained therein.
I also dismiss the appeal and affirm the decision of the lower Court in Suit No. SS/16c/2011.
Appearances
A. B. Liman Esq.For Appellant
AND
Yahaya Abubakar SC1, Ministry of Justice, SokotoFor Respondent
