IBRAHIM MAIWADA v.THE STATE (2015)

IBRAHIM MAIWADA v.THE STATE

(2015)LCN/7858(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of May, 2015

CA/K/30/C/2014

RATIO

APPEAL: APPEAL AGAINST THE JUDGMENT OF A TRIAL COURT IN A CRIMINAL MATTER; WHEN WILL AN APPEAL AGAINST THE JUDGMENT OF A TRIAL COURT IN A CRIMINAL MATTER BE DISMISSED

Now, it is trite law that an appeal against the judgment of a trial court in a criminal matter will be dismissed once the judgment answers the following questions positively: (i) did the prosecution prove the essential elements of the offence; (ii) was the case proved beyond reasonable doubt and (iii) was the evaluation of the evidence of the prosecution and defence witnesses properly done – Osuagwu Vs State (2013) 5 NWLR (PT. 1347) 360. In this wise, it is the view of this Court that there are only two issues for determination in this appeal and these are:
i. whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offence of culpable homicide punishable with death beyond reasonable doubt.
ii. Whether the lower Court was correct when it found that the defence of provocation was unavailable to the Appellant on the evidence led on record. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CRIMINAL LAW: HOMICIDE; THE INGREDIENTS THE PROSECUTION MUST ESTABLISH BEYOND REASONABLE DOUBT TO SECURE A CONVICTION FOR 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 or grievous bodily harm was its probable consequence. 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 tests 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 Vs State (2014) 2 NWLR (Pt.1391) 298. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: BURDEN OF PROOF; WHETHER THE BURDEN OF PROOF OF THE GUILT OF AN ACCUSED PERSON BEYOND REASONABLE DOUBT MEANS THAT THE PROSECUTION MUST SUSTAIN ITS CASE BEYOND EVERT SHADOW OF DOUBT

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. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, 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 Vs State (2013) 16 NWLR (Pt 1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER. 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt but nothing short will suffice.” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CRIMINAL LAW: HOMICIDE; WHAT THE PROSECUTION MUST ESTABLISH TO PROVE THE INGREDIENT OF WHETHER IT WAS THE ACT OF THE ACCUSED PERSON THAT CAUSED THE DEATH OF THE DECEASED

On the second ingredient of the offence of whether it was the act of the Appellant that caused the death of each of the deceased persons, 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 – Udosen Vs State (2007) 4 NWLR (Pt 1023) 125, Oche Vs State (2007) 5 NWLR (Pt 1027) 214, Ekpoisong Vs State (2009) 1 NWLR (Pt 1122) 354,Iliyasu vs. State (2014) 15 NWLR (Pt 1430) 245. This point was made by the Supreme Court in 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 proceed.ing, 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” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: WAYS IN WHICH THE PROSECUTION MAY PROVE THE GUILT OF THE DEFENDANT IN A CRIMINAL TRIAL

It is settled law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account of 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 – Emeka vs. state (2001) 14 NWLR (734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt 1066) 300, Mbang Vs State (2010) 7 NWLR (Pt 1194) 431, Dele Vs State (2011) 1 NWLR (Pt. 1229) 508, Ilodigwe Vs State (2012) 18 NWLR (Pt 1331) 1. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

SUBJECT A CONFESSION STATEMENT TO BEFORE THE TRIAL COURT WOULD BELIEVE AND ACT ON THE CONFESSION

It is settled law that where an accused person retracts his confessional statement, as the Appellant sought to do in this case, what is required is that before a trial Court would believe and act on the confession it should subject the confessional statement to the following tests:,

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 (2010) 15 NWLR (Pt 1215) 1 and Galadima Vs State (2012) 18 NWLR (Pt 1333) 610. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

COURT: DUTY OF THE COURT; THE DUTY OF A TRIAL COURT TO EVALUATE THE EVIDENCE PRESENTED BY PARTIES BEFORE IT, ASCRIBE PROBATIVE VALUE TO THE EVIDENCE AND THEN COME UP WITH A DECISION

Now, it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – Idakwo Vs Nigerian Army (2004) 2 NWLR (Pt 857) 249, Oyekola Vs Ajibade (2004) 17 NWLR pt 902) 356, Imoh Vs Onanuga (2013) 15 NWLR (Pt 1376) 139 and Al-Mustapha Vs State (2013) 17 NWLR (Pt 1383) 350. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

COURT: PERVERSE DECISION; WHEN IS A DECISION OF A COURT SAID TO BE PERVERSE

A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious;or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (pt 1270) 217. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CRIMINAL LAW: INTENTION TO MURDER; CRITERIA TO DETERMINE WHETHER A DEFENDANT REALLY HAD AN INTENTION TO MURDER

It is settled law that 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 brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused – Iden Vs 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 hear, the Supreme Court held that this clearly explained that the appellant’s intention was to cause grievous injury to the deceased. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CRIMINAL LAW: THE DEFENCE OF PROVOCATION; THE TEST TO BE APPLIED IN THE DETERMINING THE DEFENCE OF PROVOCATION AND THE DUTY OF THE ACCUSED PERSON TO ADDUCE CREDIBLE AND POSITIVE EVIDENCE TO SUPPORT THE ALLEGATION OF PROVOCATION
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 serf-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 of 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 bear 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 (2007) 18 NWLR (Pt 1066) 240.
It is trite that in order to establish the defence of provocation, it is the duty of the accused person to adduce credible and positive evidence to support the allegation of provocation – Akalezi vs. State (1993) 2 NWLR (Pt.273) Kaza vs. state (2008) 2SCNJ 373, Galadima vs. state (2013) 3 NWLR (Pt 1333) 610, Afosi vs. state (2013) 13 NWLR (Pt 1371) 329. The starting point is that the accused person must of necessary admit the commission of the offence in the first place before going on to explain the circumstances in which it was committed and then contend that due to the circumstances surrounding the commission of the offence of murder, the offence be reduced from murder to manslaughter – Njoku Vs State (2013) 9 NWLR (Pt 1360) 417. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

COURT: DUTY OF COURT; THE DUTY OF THE COURT TO CONSIDER SUCH DEFENCES OPEN TO AN ACCUSED PERSON

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 vs. 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. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CRIMINAL LAW: THE DEFENCE OF PROVOCATION; THE ELEMENTS THAT MAKES UP PROVOCATION IN LAW

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 (2007) 18 NWLR (pt 1066) 240, Edoho vs. state (2010) 14 N\WLR (Pt 1214) 651. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

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

Between

IBRAHIM MAIWADA Appellant(s)

AND

THE STATE Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Katsina State High Court in Charge No KHT/DM /21C/2009 delivered by Honorable Justice I. B. Ahmed on the 28th of June, 2013. The Appellant was charged with culpable homicide punishable with death under Section 227 of the Penal Code of Katsina State. The Appellant was alleged to have caused the death of one Abu Sufiyanu Hamisu on the 21st of July, 2007 in Waleru Village in Dutsinma Local Government Area of Katsina State by hitting him with a stick on the head with the knowledge that death would be the probable consequence of his act.

The Appellant pleaded Not Guilty and the matter proceeded to trial and in the course of which the Respondent called six witnesses and tendered four exhibits – a medical report of death, the English and Hausa versions of the statements made by the Appellant at Dutsinma Police Station and at State Criminal Investigation Department and two sticks – in proof its case against the Appellant. The Appellant called three witnesses, including himself, to testify in his defence. At the conclusion of

trial and after the final addresses of Counsel, the lower Court found the Appellant guilty of culpable homicide punishable with death and sentenced him to death by hanging. The Appellant was dissatisfied with the judgment of the lower Court and he caused his Counsel to file a notice of appeal against it. The notice of appeal is dated the 5th of August, 2013 and it contained nine grounds of appeal.

In canvassing the case of the Appellant in this appeal, his counsel filed a brief of arguments dated the 12th of August, 2014 on the 14th of August, 2014 and in response to which Counsel to the Respondent filed a brief of arguments dated the 12th of September, 2014. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs as their oral submissions in this appeal.

Counsel to the Appellant formulated five issues for determination in this appeal and these were:
i. Whether the learned trial Judge ought to have resolved the doubt in the evidence of PW1, PW2, PW5 and DW1, DW2, DW3 in favour of the Appellant.
ii. Whether the learned trial Judge was right when he held that he did not believe

the evidence of Dw1, DW2 and DW3 simply because none of the witnesses reported to the Police that PW1 hit the deceased.
iii. Whether the Respondent established its case against the Appellant.
iv. Whether the learned trial Judge was right to have relied on Exhibits 2A, 2B, 4A and 4B (being confessional statements obtained from the Appellant under duress) in convicting the Appellant.
v. Whether the trial Court was right when it held that the defence of provocation would not avail the Appellant.

Counsel to the Appellant argued the first and second issues for determination together and he prefaced his arguments with the provision of Section 36 (5) of the 1999 constitution that every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty and stated that the necessary consequence of the provision is that the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and he referred to the provisions of Section 139 of the Evidence Act and the cases of Alabi Vs State (1993) 7 NWLR (pt 307) 511 and Solola Vs State (2005) 5 SC (pt 1) 135 amongst others.

Counsel then referred to the three elements necessary for the prosecution to prove conjunctively beyond reasonable doubt to sustain a charge of murder as stated by the Supreme Court in the case of Abogede Vs The State (1996) 6 NWLR (pt 448) 270 and stated that while it was not in contest in the instant case that the deceased is dead, as confirmed by the medical report, Exhibit A, there was no cogent or reliable evidence showing that the act or omission of the Appellant that caused the death of the deceased was unlawful and/or that the act or omission of the Appellant that caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

Counsel stated that in proving its case, three of the witnesses called by the Respondent, PW1, PW2 and PW5, gave eye witness testimonies that it was the Appellant who hit the deceased on the head with a stick which resulted in his death and that, in response, the Appellant’s three witnesses, DW1, DW2 and DW3 also gave eye witnesses testimony that it was PW1 who while reprimanding the deceased that hit the deceased on his head with a stick which resulted in

the death and that the said stick was tendered as Exhibit 3. Counsel stated that the testimonies of the two sets of witnesses created a doubt in the entire evidence before the lower Court as to who actually used the stick to hit the deceased and that the doubt could only have been resolved by a fingerprint analysis carried out on the stick to show whose finger impression between the Appellant and PW1 was on the stick and that failure of the police to carry out such analysis ought to have created an irreconcilable doubt in the mind of the trial Judge which should have been resolved in favour of the Appellant and he referred to the cases of COP V. Donatus Ude (2012) All FWLR (pt 642) 1691 and Okoh V. The State (2009) All FWLR (Pt 453) 1358, amongst others.
Counsel stated that before pinning the use of the stick, Exhibit 3, on the Appellant, the Police ought to have examined the fingerprints of the Appellant and compared same with the fingerprint impressions on the stick, even before arraigning the Appellant in Court because by Regulation 13 of the Nigeria Police Regulations the Police herd a duty to take the fingerprints of every person in their custody

before arraigning them in Court.

Counsel stated that the learned trial Judge, without such fingerprint analysis, picked and believed the testimonies of PW1, PW2 and PW5, and disbelieved the testimonies of the defence witnesses, in arriving at the decision that it was the Appellant that killed the deceased by use of the stick, Exhibit 3, simply because the Appellant and the defence witnesses did not report the matter to the Police and that the lower Court fell into error by such assessment because it is the law that failure to report a crime to the police does not make a person a criminal or even an accomplice and he referred to the case of Ogunlana v. State (1995) 5 NWLR (Pt 395) 266. Counsel stated further that the lower Court ought to have treated and rejected the testimonies of the three prosecution witnesses as evidence of tainted witnesses because they had some purpose to serve since if PW1 had not testified for the prosecution to implicate the Appellant, he would have been accused of killing the deceased and the testimonies of the three prosecution witnesses automatically exonerated PW1 and he referred to the cases of Ogunlana Vs State supra and

Mbenu Vs State (1988) NWLR (Pt 84) 615 on how a Court should treat the evidence of tainted witnesses. Counsel urged this Court to resolve the first and second issues for determination in favour of the Appellant.

Counsel to the Appellant also argued the third and fourth issues for determination together and he reiterated the principle of criminal litigation that the prosecution had the onus of proving its case beyond reasonable doubt and referred to several cases and stated that the Respondent, in the instant case, tendered as Exhibits 2A, 2B, 4A and 4B, the confessional statements of the Appellant, in proving that it was the Appellant that killed the deceased. Counsel stated that the Appellant challenged the voluntariness of the statement and consequent on which the lower Court conducted a trial within trial and he reproduced the testimony of the Appellant in the trial within trial saying that it showed that the Appellant was tortured and forced to make the confessional statement and that the Appellant buttressed his evidence by showing the lower Court the scars on his body, but that despite these glaring evidence, the lower Court admitted the

confessional statements and relied on them in convicting the Appellant. Counsel referred to the definition of torture in the case of Uzoukwu v. Ezeono II (1991) 6 NWLR (pt 200) 708 and stated that where it is proved that a confessional statement given by an accused person was given under torture, duress, threat or inducement, it was inadmissible and where it is wrongly admitted the same Court had the power to expunge same in the course of writing the judgment and he referred to the unreported decision of the supreme Court in Lasisi v. The State delivered on 8th of March, 2013 and the case of Ajayi V. A.G., Ogun State (2009) 7 NWLR (pt 1141) 443.

Counsel stated that where a confessional statement is not so expunged by a trial Court, an appellate Court has the power to do so and he referred to the case of
Akono v. The Nigerian Army (2000) 14 NWLR (Pt 687) 318, amongst others’ Counsel urged this Court to expunge the confessional statements, Exhibits 2A, 2B, 4A and 4B, and, stated that without the statements the Respondent had nothing to sustain the charge against the Appellant. Counsel proceeded further to subject the confessional

statements to the six way test laid down by the Supreme Court in several cases including Adesina Vs The State (2012) 14 NWLR (pt 1321) 429 for testing the veracity of a retracted confessional statement and stated that in view of the serious conflict between the testimonies of PW1, PW2, PW5 and the testimonies of DW1, DW2, DW3, it cannot be said that there was anything outside the confessional statement confirming the truth of its contents and that Exhibits 2A, 2B, 4A and 4B failed all the six tests. Counsel stated that if these Exhibits were removed from the records, the lower Court would not have arrived at the same decision and he urged this Court to thus set aside the judgment of the lower Court and referred to the case of State v. Ogbubunjo (2001) 2 NWLR (Pt 698) 576. Counsel urged this Court to resolve the third and fourth issues for determination in favour of the Appellant.

On the fifth issue for determination, counsel stated that the lower Court had a duty to consider all defences put up by the Appellant whether specifically pleaded or not and he referred to the case of Akpabio Vs State (1994) 7 NWLR (pt. 359) 635 and proceeded to say that the

lower Court was thus in error when it did not consider the defence of provocation impliedly raised by the Appellant’ Counsel referred to the definition and elements of the defence of provocation as stated by the Supreme Court in the cases of Amala Vs State (2004) 12 NWLR (Pt 888) 520 and Uwagboe Vs state (2008) 12 NWLR (pt 1102) 621, and stated that where the anger is accompanied by any utterance of act of the victim, then provocation would be justified and he referred to the case of Inyama Vs The State (1972) 3 SC 91. Counsel stated that assuming but not conceding in the instant case that it was the Appellant that killed the deceased, the concomitant effect of the act of the deceased in attempting to rape the Appellants wife on her matrimonial bed and the act of inflicting injury on the Appellant after being caught would justify the Appellant’s action in provocation’ Counsel urged this Court to find that the Appellant acted under provocation and to uphold the defence in his favour.

In conclusion, Counsel urged this Court to allow the appeal and to set aside the judgment of the lower Court and the sentence passed on the Appellant’

In response, Counsel to the Respondent adopted the five issues for determination as formulated by the Counsel to the Appellant. Counsel also argued the first and second issues for determination together and conceded that the Respondent had the burden of proving the ingredients of the offence of culpable homicide punishable with death against the Appellant beyond reasonable doubt and that it never shifts, but stated that once the Respondent discharged the burden, it became the duty of the Appellant to rebut the assertion that he committed the offence and he referred to the case of Ali Vs State (2012) 7 NWLR (Pt. 1299) 209. Counsel listed the ingredients of the offence of culpable homicide punishable with death and stated that the Respondent Proved all the ingredients of the offence beyond reasonable doubt through the unchallenged and unshaken testimonies of PW1, PW2 and P\75 and that the lower Court was obliged to act and convict the Appellant on the basis of such unchallenged testimonies and he referred to the case of Ada vs. state (2008) 13 NWLR (Pt 1103) 149. Counsel stated that it was based on the assessment of the credibility of the witnesses that the lower Court

believed the testimonies of PW1, PW3 and PW5 and disbelieved the testimonies of DW1, DW2 and DW3 and that the issue of assessment of credibility of witnesses was the exclusive preserve of a trial Court that sees and hears the witnesses and is therefore in a better position to assess such witnesses and he referred to the cases of Ani Vs State (2003) 11 NWLR (Pt 830) 142 and Haruna Vs AG Federation (2012) 9 NWLR (Pt 1306) 419.

Counsel stated that the testimonies of DW1, DW2 and DW3 did not create any doubt in the case of the Respondent because the Appellant as DW1 did not give that story to the police on his arrest and neither did the DW2 or DW3.attend the Police Station to narrate the story to exonerate the Appellant after he was arrested. counsel stated that there was thus no need for. any fingerprint analysis as the identity of the person who used the stick to hit the deceased on the head was clear from the credible evidence before the lower Court and that the Regulation 13 of the Police Regulation was not a requirement of the law and that all the cases that the Counsel to the Appellant referred to were irrelevant to the facts of this case and that the

position of the law was that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt and he referred to the cases of Osewla Vs State (2012) 17 NWLR (Pt 1329) 283 and FRN Vs Iweka (2013) 3 NWLR (Pt 1341) 285. Counsel stated that it is DW1, DW2 and DW3 that should be treated as tainted witnesses on the facts of the instant case and not PW1, PW2 and PW5 and that it was obvious from the evidence led that DW2 was not present at the scene of the crime and could not thus have witnessed the incident and that the testimonies of the prosecution witnesses were backed up and corroborated by the confessional statements of the Appellant, Exhibits 2A,2B,4A and 4B, and that though the testimony of the Appellant was contrary to the contents of his confessional statement, the lower Court was at liberty to disregard his testimony and act on his confessional statement and he referred to the cases of Ogudo vs. state (2011) 12 SCNJ 1 and Bassey vs. State (2012) 12 NWLR (pt 1314) 209. Counsel urged this Court resolve the first and second issues for determination in favour of the Respondent.
?
Counsel also argued the third and fourth issues for determination

together and stated that when the Respondent sought to tender the two confessional statements, Exhibits 2A, 2B,4A and 4B, through two different witnesses in the course of trial, the Appellant objected to their admissibility on the ground of involuntariness and the lower Court conducted two separate trials within trial to resolve the issue of voluntariness of the statements. counsel stated that the case of the Appellant in the trials within trial was that he did not make either of the two statements, and not that he made them involuntarily, and that where an accused person denies making a statement to the police, the statement will be admitted by the trial court and that as such the two confessional statements were properly and rightly admitted and he referred to the Adisa vs state (2013) 14 NWLR (pt 1375) 567. Counsel stated that there was no justification for the lower Court to expunge the confessional statement and/or for this Court to interfere and expunge the said statements and that the issue of the admissibility of the confessional statements ought to have been taken up in the course of the trial within trial and he referred to the case of Osuagwu Vs

State (2013) 5 NWLR (pt. 1347) 360. on the point of whether the confessional statements passed the six way test on veracity, Counsel subjected the confessional statements to the test and stated that they passed all the tests particularly in view of the corroboration of their contents by the testimonies of PW1, PW2 and PW5 Counsel urged this Court to resolve the third and fourth issues for determination in favour of the Respondent.

On the fifth issue for determination, Counsel conceded that the lower Court had a duty to consider all defences put up by the Appellant whether specifically pleaded or not, but stated that a trial Court must not turn itself into a knight errant desperately looking for. any defence that will exonerate the accused person when on the face of the totality of the evidence led, no such defence is available and he referred to the case of Uluebeka Vs State (2011) 4 NWLR (Pt 1237) 358. Counsel stated that in the instant case, the lower Court considered the defence of provocation in favour of the Appellant, but found that the evidence on record did meet the standard required by law to sustain the defence. Counsel referred to the

requirements of the defence of provocation as reiterated in the cases of Ahunger Vs State (2012) 12 NWLR (Pt 1313)181 and Famakinwa vs. State (2013) 7 NWLR (pt 1354) 597 and stated that the evidence of the Appellant before the lower Court was that the deceased went to the wife of the Appellant with the intention of having an affair with her and that he was caught by the Appellant and DW3 and they took the deceased to his father tomake a formal report and the Appellant thereafter hit the deceased on the head with a stick and killed him and that the evidence did not satisfy the requirements. counsel stated that the lower Court was right when it found that the defence of provocation was not available to the Appellant and he urged this Court to resolve the fifth issue for determination in favour of the Respondent.

In conclusion, Counsel urged this Court to dismiss the appeal and to affirm the judgment of the lower Court and the sentence passed on the Appellant therein’

Now, it is trite law that an appeal against the judgment of a trial court in a criminal matter will be dismissed once the judgment answers the following questions positively: (i) did

the prosecution prove the essential elements of the offence; (ii) was the case proved beyond reasonable doubt and (iii) was the evaluation of the evidence of the prosecution and defence witnesses properly done – Osuagwu Vs State (2013) 5 NWLR (PT. 1347) 360. In this wise, it is the view of this Court that there are only two issues for determination in this appeal and these are:
i. whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offence of culpable homicide punishable with death beyond reasonable doubt.
ii. Whether the lower Court was correct when it found that the defence of provocation was unavailable to the Appellant on the evidence led on record.

All the arguments of Counsel to both parties shall be considered and resolved under these two issues for determination.

The Appellant was charged for culpable homicide punishable with death and he was alleged to have killed of one Abu Sufiyanu Hamisu by hitting him with a stick on the head with the knowledge that death would be the probable consequence of his act. 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 or grievous bodily harm was its probable consequence. 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 tests 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 Vs 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. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, 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 Vs State (2013) 16 NWLR (Pt 1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER. 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt but nothing short will suffice.”

This statement has been adopted and has been severally

reiterated by Supreme Court in several cases.

On the first ingredient of the offence of culpable homicide punishable with death, it was not in contest between the parties that the person referred to in the charge against the Appellant as Abu Sufiyanu Hamisu is dead. All the witnesses, both the prosecution and the defence witnesses, testified to the death of the deceased and the Respondent tendered a medical report dated the 24th of July, 2007 issued by one Dr. Y. A. Aliyu confirming the death of the deceased as Exhibit 1. Further, the finding of the lower Court on the issue in the judgment has not been appealed against by the Appellant.

(2014) 15 NWLR (Pt 1430) 245. This point was made by the Supreme Court in 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 proceed.ing, 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”

On the cause of death, the Respondent tendered the report of the coroner as Exhibit 1 and which put the cause of death as severe head injury. The cause of death as stated in the autopsy report was consistent with the testimonies first, second and fifth prosecution witnesses that the deceased was hit on the head with a stick and consequent on which he suffered a head injury and fell down and was

rushed to the hospital and that he was on admission in the hospital receiving treatment when he died later on the same day. The Appellant and his defence witnesses conceded at the trial that the deceased died as a result of the head injury he suffered after he was hit on the head with a stick. It is trite that where there is evidence that a deceased person was hale and hearty before the occurrence of an offending act and death is instantaneous or nearly so and there is no break in the chain of events from the time of the act that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to that act, even without medical evidence of the cause of death – Essien vs. state (1984) 3 SC 14, Adekunle vs. state (1989) 5 NWLR (Pt 123) 505,Azu Vs State (1993) 6 NWLR (Pt 299) 303 and Akpa Vs State (2008) 14 NWLR Pt 1106) 72.
Thus, in Ben Vs State (2006) 16 NWLR (Pt 1006) 582, where the deceased was struck on the head with a stick and he fell down unconscious and never regained
consciousness until he was pronounced dead some hours later in the hospital, the Supreme Court held that the trial Court rightly found that

the cause of death was the lethal blow to the head without a need for medical evidence. In Adekunle vs. state (2006) 14 NWLR (Pt 1000) 717, where the deceased was shot by the defendant and was rushed to the hospital for treatment and died on the next day, the Supreme Court held that medical evidence was unnecessary and that the gun shot was the cause of death. The rationale for this position, which is founded on sound logic and common sense, is that since that act is the most proximate event to the death of the deceased, it should be regarded as the deciding factor even when it may be taken as merely contributory to the death of the deceased – Jeremiah vs. State (2012) 14 NWLR (Pt 1320) 248. The Respondent thus led cogent evidence proving the cause of death of the deceased beyond reasonable doubt’

This takes us to the second limb of the second ingredient of the offence of culpable homicide punishable with death; whether it was the act of the Appellant that caused the death of the deceased. It is settled law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account of 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 – Emeka vs. state (2001) 14 NWLR (734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt 1066) 300, Mbang Vs State (2010) 7 NWLR (Pt 1194) 431, Dele Vs State (2011) 1 NWLR (Pt. 1229) 508, Ilodigwe Vs State (2012) 18 NWLR (Pt 1331) 1.

It is obvious from the records of appeal that the Respondent relied on both confessional statement and eye witness account in proving the guilt of the Appellant and that it was on the basis of these that the lower Court convicted and sentenced the Appellant. The Respondent tendered two confessional statements. The first was tendered by a Sergeant Hassan Iro, the Investigation Police Officer at the Divisional Police Headquarters Dutsinma who effected the arrested the Appellant and he testified as the third prosecution witness. He gave evidence that he knew the accused person, i.e. the Appellant, and stated that after. receiving a complaint of culpable homicide, he went to the scene of the crime with one Sergeant Kabir Idds and he continued thus:
“On reaching the scene we arrested the

accused person and brought him to the police station. We explained the nature of the allegation against him in Hausa language. We invited him into the Crime Branch office, and cautioned him in Hausa language, read it over to him and he understood and thumb printed. He gave his voluntary statement in Hausa language. I then read it over to him to which he understood. On the same date one of the accused person’s senior sisters whose name I cannot recall brought one stick to the police station belonging to the accused Person. The stick was shown to the accused person and he confessed that the stick belonged to him. On 23/07 /2007 the accused person and his statement were taken to my superior officer by name Shehu Garba, ASP. I read the accused person’s statement to the said ASP Shehu Garba. The accused was asked whether it was his statement to which he admitted being his statement. Thereafter ASP Shehu Garba endorsed the statement with a red biro. After the endorsement the accused person also signed, the accused person thumb printed the statement.” (see page 20 of the records)

When the Respondent sought to tender the Hausa and English versions of the said

statement of the Appellant, Counsel to the Appellant objected to their admissibility thus:
Nasir: I object to the admissibility of the two statements to be that of the accused person on the grounds that he gave the statement under duress as he was kept for three days without food and was only given little water for the period. He was also beaten up. In the circumstance, we urge the Court to refuse to admit the statements.” (see page 23 of the records)
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Consequent on the objection, the lower Court conducted a trial within trial. The Appellant testified in the trial within trial thus:
?sometime in the month of July 2007 after I slept at the police station Dutsinma, the following day I was summoned by one Sgt Hassan Iro who confronted me with the offence of culpable homicide. I denied committing the offence. Then Sgt Hassan Iro called his colleague, took me to one room and demanded that I should admit committing the. offence which I refused. I was then handcuffed and the two of them began to beat me. I was later taken back to the cell and at about 5.30pm I was taken back to the same room and was beaten up again threatening that I should admit

the offence. They used stick to beat me. When I insisted on pleading my innocence Sgt Hassan said he would write what he wanted … I do not know whether Sgt Hassan indeed wrote the statement as threatened by him. I did not give police any statement. I did not sign or thumb print any document. I know nothing about the confessional statement.” (see Pages 26 to27of the records)

The lower Court ruled that in view of the evidence of the Appellant that the statement sought to be tendered was not his statement as he did not give any statement to the police, the confessional statement was admissible in evidence and that the denial of the statement by the Appellant would go to the weight, If any, to be attached to the statement. The Hausa and English versions of the confessional statement were admitted as Exhibits 2A and 2B.. The Hausa version of the confessional statement, Exhibit 2A,carried the words of caution with a thumbprint, a thumbprint at the end of the statement, the endorsement of ASP Shehu Garba and his signature and, a thumbprint after the endorsement; exactly as stated by the third prosecution witness.
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The second confessional statement was

tendered by the sixth prosecution witness, Sergeant Kabir Umar attached to the State Criminal Investigation Department, Katsina as an Investigation officer. He stated that he knew the accused person, i.e. the Appellant, and he testified thus:
“On the 26/07/2007 I was in my department on duty when a case of culpable homicide was transferred to us for investigation from the Divisional Police Headquarters Dutsinma involving the accused person. The case was referred to our team for investigation. The team comprised of inspector Magaji Adamu, Sgt Haruna Abdutlahi and myself. I was instructed to record the statement of the accused person. I invited the accused person to our investigation office, explained the nature of the allegation against him in Hausa language and read to him the words of caution which he understood and thumb printed. He then volunteered his statement in Hausa language which I read over to him and also thumb printed same as his statement’ I then countersigned. I took the statement and the accused person to my superior, ASP Atteh for endorsement of the statement. I read over the statement of the accused person before ASP and the ASP asked him

whether he was the maker of the statement to which the accused person answered in the affirmative’ Having been convinced, the ASP endorsed the statement. I thereafter translated the statement into English. …”

Counsel to the Appellant objected to the admissibility of the confessional statement on the ground that the . Appellant made the statement under duress and as result of which the lower Court conducted a trial within trial. In the trial within trial, the Appellant testified in examination in chief that he admitted the offence and which was recorded but stated that he was beaten and that he admitted the offence because of the injury he suffered from the beating and because he thought the policemen were going to kill him. Under cross examination, however, the Appellant stated that it was the sixth prosecution witness that dictated what was in the statement and the statement was not his statement. At the close of the trial within trial, the lower Court delivered a ruling on the 1st of November,2012 wherein it found that the statement was made voluntarily and it admitted the Hausa and the English versions of the confessional statement as Exhibits 4A and

4B. Exhibit 4A the Hausa version of the confessional statement carried the words of caution with a thumbprint, a thumbprint at the end of the statement, the endorsement of ASP Etu clement and his signature and. a thumbprint after the endorsement; exactly as stated by the sixth prosecution witness.

Counsel to the Appellant upbraided the lower Court for relying on the two confessional statements to convict the Appellant despite the evidence of beatings, threats and duress led by the Appellant before the lower Court in the course of trial within trial. It is elementary that allegations of beatings, threats and duress by accused person go to the admissibility of a confessional statement and not to the weight or reliance that a lower Court will place on the confessional statement. It will be recalled that the lower Court conducted two trials within trial to determine the admissibility of the two confessional statements and delivered Rulings thereon’ The Ruling on the first trial within trial to determine the admissibility of Exhibits 2A and 2B was delivered on the 4th of April,2011 while the Ruling on the second trial within trial to determine the

admissibility of Exhibits 4A and 4B was delivered on the 1st of November 2012.

Now, a trial, within trial is a process that a trial Court undertakes when an accused person in a criminal trial protests the admission of a confessional statement allegedly made by him to the Police on the ground that the said statement was not and could not have been voluntarily made by him and that the statement was obtained under duress or some threat of whatever nature or actual physical torture to his person. The main trial in the Court is abated and the accused person is made to face a mini trial within the con of the main trial, to determine the veracity of the account of the accused person on whether his statement to the Police was voluntary or not. The procedure at the mini trial is similar to that of the main trial as witnesses are called to give evidence on both sides and they are subjected to cross-examination by the other side. The trial Court writes a ruling at the conclusion of the mini trial either admitting the statement of the accused person or rejecting same and after which the main trial will resume.

It is obvious from the records of appeal

that the case of the Appellant against the admissibility of the first confessional statement, Exhibits 2A and 2B, in the course of the first trial within trial was that he denied the statement, saying that he did not make it despite the alleged beatings he received. It is settled law that where an accused person denies the making of a confession statement despite allegations beatings and duress, the confessional statement is admissible without further ado and the only question is the weight to attach to the confessional statement – Isma’il Vs State (2011) 17 NWLR (Pt. 1277) 601, Onyenye Vs State (2012) 15 NWLR (Pt. 1324) 586, Lasisi Vs State (2013) 9 NWLR (Pt. 1358) 74, Iheme vs. State (2013) 10 NWLR (Pt 1362) 333, Abdullahi vs. state (2013) 11 NWLR (pt. 1366) 435.

With regards to the second confessional statement, Exhibits 4A and 4B., the lower Court in its Ruling on the trial within trial made specific findings on the evidence led by the parties on the voluntariness of the confessional statement and it was on basis of the findings that it held that the statement was made voluntarily. The Appellant did not appeal against any of the findings of fact made

by the lower Court in the Ruling, even in his final notice of appeal, and no issue was formulated or argument put forward by the Counsel to the Appellant in this appeal to challenge those findings.

Counsel only repeated the evidence led by the Appellant in the trial within trial and made submissions thereon. Findings of fact made by a trial Court in a trial within trial are based on the credibility of witnesses after watching their demeanour and an appellate Court should not upset such findings – Osuagwu Vs State (2013) 5 NWLR (Pt. 1347) 360, Abiodun Vs State (2013) 9 NWLR (Pt 1358) 138. Further, it is settled that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties – Amale Vs Sokoto Local Government (2012) 5 NWLR (Pt 1292) 181, SCC (Nigeria) Ltd Vs Anya (2012) 9 NWLR (Pt 1305) 213, Uwazurike vs. Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Nwaogu vs. Atuma (2013) 11, NWLR (Pt 1364) 117. In effect the decision of the lower Court on the voluntariness of the second confessional statement remains binding and conclusive between the parties on the issue. It cannot be

re-examined by this Court – Alakija vs. Abdulai (1998) 6 NWLR (Pt 552) 1 and Opara Vs Dowel schlumberger (Nigeria) Ltd (2006) 15 NWLR (Pt 1002) 342.

The English version of the first confessional statement’ Exhibit 2B., read thus:
“… that today being 2l/7/07 at about 0500hrs I and my brother Garba Musa went to walaru village nearby our village because we strongly suspected one Abu Sufiyanu and one Shaaibu Garba went to our house in the night because we followed their footsteps up to one Abu Tukur house then that Abu Tukur told us that they were the people that went to our house that is why we went to their house together with our sticks then when we reached the house of one Shaaibu Garba we met his brother Abdullahi then we asked him where is Shaaibu then he told us maybe he went to the house of Mai Ungwa Illiya then that Abdullahi directed us up that house of Abu Sufiyanu then on reaching to the said house we met Hamisu the father of Abu Sufiyanu then we asked about his son then he called him then we asked both of them what brought them to our house in the night on the Process of that I hold my stick and beat Abu Sufiyanu on his head seriously

when he fall down then I and my brother Garba Musa run away to our house. I beat that Abu Sufiyanu because I was strongly suspected him that he went and called my wife ” ‘”
And the English version of the second confessional statement, Exhibit 4B, read thus:
“… that my occupation is farming and rearing of animal. I hail from Dutsinma.I am a family man having a wife and two children. I did not attain western education but I have Arabic knowledge. On 2l/07/2007 at about 0100hrs I was at my house inside my wife’s room (Maryam) I heard a dog barking, as such I came out of the house with a torchlight. On coming out, I saw two people whom I do not know and on sighting me, they all took to their heels and escaped inside a farm. My elder brother by name Abu Garba came out and asked me what is happening. I then told him that it was some people that came to our house but I flashed them and they all took to their heels. We then traced their foot print” which conveyed us to the house of Abu Tukur. On reaching the house, we took an excuse and explained to them that we were tracing some foot prints which eventually brought us down to the house,The said Abu Tukur

denied it hence we once again retraced the foot prints which again carried us back to our house. When we came back my elder brother called the Ward Head and informed him all that was happening. The said Abu Tukur called aside my brother and pleaded with him to let sleeping dog lie and that they were the people
that came to our house. He confessed that himself, Abu Sufiyanu Mal. Hashimu and Shaaibu Lamushe were the three people that came to our house’ He further confessed to my brother that they purposely came to meet our wives. Having heard this, I proceeded to the house of Abu Sufiyanu in order to ask him but he was not at home. He, Shaaibu, urged us to go to the house of Mal Hamisu where they normally sleep. Abdullahi went in and called them to our house but they said that they will not come to our house. As such Mal Hamisu the father of Abu Sufiyanu came to our house instead. He asked us what happened and we disclosed to him the whole details surrounding his child, Abu Sufiyanu. Mal Hamisu was annoyed as such reconfirmed from them if the allegation was true and Shaaibu Garba Lamushe confessed to him that truly they went to our wives. Mal Hamisu was

very sad with this episode and was querying them bitterly and unfortunately I got annoyed and hit his child Abu Sufiyanu and consequent on which he fell down unconscious and I escaped until on Saturday around 1200hrs policemen came to my house looking for me as Abu Sufiyanu died sequel to the injury I inflicted on his head”

In Okonkwo Vs State (1998) 8 NWLR (pt 561) 210 It was held that where an allegation of involuntariness of a confessional statement is made, the Court is
empowered to look through the contents of the confessional statement to determine if the structure and pattern of the contents were consistent with a statement made involuntarily. Looking at the contents of Exhibit 4B, the confessional statement that the Appellant challenged on the ground of involuntariness, it started with the work and family background of the Appellant and from there proceeded to the activities of the Appellant on the day of the commission of the crime. The story was properly sequenced, well structured and patterned and it was a continuous narrative which told a flowing and consistent story. The Appellant stated under cross examination that the entire contents

of the statement were dictated by the sixth prosecution witness and that they were not his statements. The Appellant admitted under cross-examination
that his occupation was farming and rearing of animals. This was the first sentence in Exhibit 48 and the Appellant did not explain how the sixth prosecution witness would have known this fact if he did not tell him.

Again, looking at the contents of Exhibit2B which was made on the 21st of July, 2007 and of Exhibit 48 made on the 26th of July, 2007, at two different Police stations and recorded by two different policemen, it is obvious that though Exhibit 4B contained more details, they were similar and consistent on the facts material to this case and they corroborated each other. It stands to reason that they must have been made by the same person. The assertion of the Appellant on the involuntariness of his confessional statements and his retraction of them was thus clearly an afterthought and an affront to reason. In Aigoukhian Vs State (2004) 7 NWLR (Pt 873) 565, the Supreme Court said that where the statement of evidence of a witness is of such obvious exaggerated proportions that it enters into

the realm of either fantasy or is an affront to intelligence of is reckless in its utterance it should be ignored, treated with utmost contempt and rejected in its entirety.

The issue of the alleged beating, threats and duress raised by the Appellant were properly dealt with and concluded by the lower Court in the trials within trial before it admitted the two confessional statements. The submissions of counsel to the Appellant using this Court to expunge the two confessional statements from the records on the ground that they were. obtained by torture and duress were totally misconceived.

It was the further submission of Counsel that the lower Court ought not to have placed any weight or given any probative value to Exhibits 2A, 2B.,4A and 4B as there was no credible evidence outside the confessional statements showing that the contents were true. It is settled law that where an accused person retracts his confessional statement, as the Appellant sought to do in this case, what is required is that before a trial Court would believe and act on the 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 (2010) 15 NWLR (Pt 1215) 1 and Galadima Vs State (2012) 18 NWLR (Pt 1333) 610.

Looking through the judgment of the lower Court, it found corroborative evidence of the contents of Exhibits 2A, 2B,4A and 4B in the eye witness testimonies of the first, second and fifth prosecution witnesses. The first prosecution witness was the father of the deceased, Hamisu Zubaru and he testified thus:
“… It was on a certain day I could not remember in the early hours of the morning when I wanted to perform ablution to pray then I heard a

call outside my house. When I came out I saw the accused together with his senior brother and one Abdu Garba. I asked them what was wrong to which the accused replied that they were suspecting the deceased of going to meet the accused’s wife. I asked the accused person to be patient but the accused person said he would not and immediately hit the deceased with a stick. The accused together with his brother and Abdu Garba later ran away while I came out to pray. The accused person hit the deceased in the centre of the deceased’s head. After saying my prayers and on seeing that the deceased’s condition was worsening I took him to the hospital. …”

The second prosecution witness was Abdullahi Garba and he testified that:
“… about three years and some months ago some people came to my house around 5.00am calling and my wife told me that there were some people outside the house. When I went out I saw the accused person together with his elder brother by name Garba. They told me that they were looking for the deceased Abu Sufiyanu as they were accusing him of attempting to rape the accused person’s wife. As he deceased was my brother I took them to Mal

Hamisu Zubairu (PWl) and told him the allegation against the deceased. Mal Hamisu woke up Mal Zubairu who was Mal Hamisu’s senior brother. Mal Hamisu then pleaded with the accused to be patient as he would take measures to end the matter. The accused said he would not forgive and instantly raised a stick and hit Abu Sufiyanu, the deceased. Together with Z:ubairu, we seized the accused person and took him outside. The accused hit the deceased on his head. I then went home and prayed. The deceased fell down when he was hit. …”
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The fifth prosecution witness was Zubairu Hamisu, the senior brother of the first prosecution witness and he testified that:
“… About four years back when I was preparing to go to the mosque for early morning prayers I met about five people by the entrance of my house. I know the five people. They were Hamisu Zubairu, Abdullahi Lamshi, Ibrahim Maiwada, Garba Maiwada and Abu Sufiyanu. I inquired from them what was wrong. Then Ibrahim Maiwada and Garba Maiwada said they have come to meet Abu Sufiyanu to answer an allegation that Abu Sufiyanu went to meet Ibrahim Maiwada’s wife with the intention of having an affair with her. I

pleaded with them to be patient and be given a second chance and that if the allegation was true he would do it again. As I was in the process of reconciling them, the accused person hit Abu Sufiyanu on his head with a stick. Abu Suiyanu fell down and the accused person and other people he came with went away. We then got a motorcyclist who carried us with Abu Sufiyanu to the Dutsinma Hospital. …”

Counsel to the Appellant argued copiously in the brief of argument that these testimonies of the first, second and fifth prosecution witnesses ought not to have
been accepted and relied on by the lower Court as they were in conflict with the testimonies of the three defence witnesses who were also eye witnesses to the
incident. The three defence witnesses were the Appellant, his brother., Garba Inusa and one Mani Alhaji Isa and they all testified that it was the first prosecution witness, Hamisu Zubairu, who beat his son, the deceased, on the head with a stick in the course of reprimanding him for attempting to have an affair with the wife of the Appellant and that it was not the Appellant that beat the deceased.

Now, it is the

primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – Idakwo Vs Nigerian Army (2004) 2 NWLR (Pt 857) 249, Oyekola Vs Ajibade (2004) 17 NWLR pt 902) 356, Imoh Vs Onanuga (2013) 15 NWLR (Pt 1376) 139 and Al-Mustapha Vs State (2013) 17 NWLR (Pt 1383) 350.

In weighing the evidence led by the prosecution and defence witnesses on the issue of who attacked and hit the deceased on the head with a stick, the lower Court stated thus:
“What the Court has observed however in the testimony of all the defence witnesses and which the Court for obvious reasons does not agree with is the fact as stated by the witnesses that it was the deceased’s father who beat the deceased leading to

his death or that (as mentioned by DW2) that the deceased’s father ordered the accused
person to go and beat the deceased. In the first place, PW5 in the person of Zubairu Hamisu had told the Court in his testimony that when he was preparing to go for his morning prayers he met about five people and those people were Hamisu Zubairu, Abdullahi Lamshi, Ibrahim Maiwada, Garba Maiwada and Abu Sufiyanu when he inquired from them what went wrong. The issue here is why did any of them not report the matter to the police if going by what the defence witnesses said that it was the deceased’s father that beat the deceased to his death? Why was the father not arrested by the police? Why did any of the prosecution witnesses not say it was the deceased’s father that committed the offence. After all, it was the deceased’s father that took the deceased to the hospital and it was him that reported the matter to the police with the accused person as the prime suspect. Why did the accused person not tell the police that he was innocent and that it was the deceased’s father that committed the offence? Why did the defence witnesses not support him at the police station? The

police officers who investigated the case at both Dutsinma Police Headquarters and at the State CID all appeared and testified before this Court as prosecution witnesses but there was nothing as such from their testimony. Could all these persons be said to have shielded the deceased’s father? For these reasons alone, what these defence witnesses told the Court is nothing but a bunch of lies and do not serve as good defence to the accused person and I discountenance and reject them in evidence.” (see pages 135 to 135 of the records)

What is obvious from the above excerpts of the judgment is that the lower Court carried out an evaluation of the evidence led by the parties on the issue of who
attacked and hit the deceased on the head with stick and stated its reasons for rejecting the evidence of the defence witnesses. It a settled statement of law that
evaluation of evidence is the exclusive preserve of the trial Court and where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming

to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse -Ajibulu Vs Ajayi (2014) 2 NWLR (Pt. 1392) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt 1392) 564.

testimonies of the three defence witnesses was perverse. Additionally, the two confessional statements of the Appellant, Exhibits 2A, 2B.,4A and 4B, amount to documentary evidence and their contents support the oral testimonies of the prosecution witnesses as against the testimonies of the defence witness. It is trite law that documentary evidence serves as the hanger upon which to test the veracity of oral evidence and oral evidence that is supported by documentary evidence will be deemed more credible – Bunge Vs The Governor of Rivers State (2006) 12 NWLR (Pt 995) 573, Egharevba vs. osagie (2009) 18 NWLR (Pt 1173) 299, Cameroon Airlines vs. Otutuizu (2011) 4 NWLR (Pt 1233) 512, Ukeje vs. Ukeje (2014) 11 NWLR (Pt 1418) 384. This Court cannot fault the evaluation of evidence carried out by the lower Court.

It is beyond contest that the eye witness testimonies of the three prosecution witnesses provided credible, cogent and material evidence outside the confessional statements of the Appellant which corroborate in all particulars the contents of the confessional statements. Both confessional statements and the eye witness accounts of the prosecution

witnesses proved beyond reasonable doubt that it was the act of the Appellant that caused the death of the deceased.

This takes us to 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. This is what is known as “specific intention” necessary for sustaining a murder charge In dealing with this requirement, the lower Court stated in the judgment thus:
“Now to the last and final question, whether the accused person’s act which caused the death was intentionally done with knowledge that death or grievous bodily harm was its probable consequence. To determine this question this Court has to once again fall back on the testimony of PWl, PW2 and PW5 as eye witnesses to the incident culminating into the murder of the deceased.” (see page 131 of the records}.

The lower Court thereafter reproduced the testimonies of the first and second prosecution witnesses and continued thus:
“From the above, what more would this Court require in proof that the accused

person actually intended to cause the deceased’s death? Firstly, as a result of his encounter with the deceased, the accused person took a stick, went to the deceased’s house in the company of his brother, met the deceased, confronted the deceased and in spite of pleas from the deceased’s relations hit hard the deceased as a result of which he fell down. No wonder, this piece of evidence coming from no other than three eye witnesses has provided the required corroboration to the two accused person’s confessional statement marked Exhibits 2 and 4.
In the two Exhibits, the accused person has given a graphic account of how he met the deceased Abu Sufiyanu in his own house and landed a heavy stick on him without giving the deceased the opportunity to explain or to defend himself of the allegation from the accused person. The fact that the deceased fell down after the accused person’s hit on the deceased and from the post mortem examination report (Exhibit 1) and also the fact that the accused person immediately left the scene without rendering any assistance to the deceased in term of taking him to the hospital or attempt to revive him, meant that the

accused person actually intended to cause the deceased’s death. …” (see pages 132 to 133 of the records)

of the Appellant. 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, Afosi vs. state (2013) 13 NWLR (Pt 1371) 329. This Court cannot fault the finding of the lower Court that the evidence led by the Respondent proved the third ingredient of the offence of culpable homicide punishable with death beyond reasonable doubt.

This Court finds and holds that the Respondent led credible evidence to establish the offence of culpable homicide punishable with death against the Appellant beyond reasonable doubt. The first issue for determination in this appeal is resolved in favour of the Respondent.
?
The second issue for determination is whether the lower Court was correct when it found that the defence of provocation was unavailable to the Appellant on the
evidence red on record. provocation is a partial defence for murder in cases where the act of omission causing death was provoked by some conduct

of the deceased’ It reduces a change 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 or 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.
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 serf-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 of 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 bear 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 (2007) 18 NWLR (Pt 1066) 240.
It is trite that in order to establish the defence of provocation, it is the duty of the accused person to adduce credible and positive evidence to support the allegation of provocation – Akalezi vs. State (1993) 2 NWLR (Pt.273) Kaza vs. state (2008) 2SCNJ 373, Galadima vs. state (2013) 3 NWLR (Pt 1333) 610, Afosi vs. state

(2013) 13 NWLR (Pt 1371) 329. The starting point is that the accused person must of necessary admit the commission of the offence in the first place before going on to explain the circumstances in which it was committed and then contend that due to the circumstances surrounding the commission of the offence of murder, the offence be reduced from murder to manslaughter – Njoku Vs State (2013) 9 NWLR (Pt 1360) 417. The Appellant in the instant case did not admit the commission of the offence in his oral testimony before the lower Court and his evidence of the circumstances of the occurrence of the incident that led to the death of the deceased was rejected by
the lower Court and which this decision this Court has upheld. The Appellant did not thus lead any evidence to establish the defence of provocation.

Notwithstanding these however, the trial Court was still obligated to consider the defence of provocation on the evidence led by the Respondent – Afosi Vs State supra, Njoku Vs State supra. This is in furtherance of the principle 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 of 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 vs. 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 did consider the defence of provocation and it stated in the judgment thus:
“The only evidence this Court has observed which could have served in defence of the accused person for killing the deceased was the fact that

it was the deceased that went to the accused person’s wife in order to have an affair with her, which could have served as the accused person’s defence that he committed the act under provocation’ However at the time and the place he committed the act, could he be said to have acted under provocation? If the accused person had killed the deceased at his (accused persons) house at the time he caught him in his wife’s room before he escaped that could have served as good defence of provocation. But not in this case when it had taken some hours and at different place than the accused person’s house to kill the deceased.” (see pages 136 to 137 of the records)

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 (2007) 18 NWLR (pt 1066) 240, Edoho vs. state (2010) 14 N\WLR (Pt 1214) 651.

The summary of the facts as can be garnered from the evidence led by the Respondent was that the Appellant and his senior brother suspected that some
persons came to their house in the very ea{y dark hours of the day on the 21st of July, 2007 and they believed that these persons came to their house to meet with their wives. The Appellant and his brother, armed with sticks, traced the foot prints of these persons through a farm and they ended up in the house of one Abu Tukur The said Abu Tukur informed the Appellant and his brother that it was one Shaaibu Lamshi and Abu sufiyanu, the deceased, that went to their house and he confirmed that these persons went there to

meet their wives. The Appellant and his brother went to the house of Shaaibu Lamshi and they did not meet him at home but met his brother called Abdullahi who joined them and the three of them went to the house of
Mallam Hamisu, the father of the deceased. They got there around 5am and met Mallam Hamisu outside preparing to go for his morning prayers and they informed him of what happened and Shaaibu Lamshi and the deceased were called out and they were joined by Mallam Zubairu, the senior brother of Mallam Hamisu. Mallam Hamisu reprimanded Shaaibu Lamshi and the deceased and he and Mallam zubairu pleaded with the Appellant to be patient to enable them deal with the matter amicably but that the Appellant said he would not forgive and he hit the deceased on the head with the stick he was holding and whereupon the deceased fell to the ground and the Appellant and his brother fled the scene.

These facts do not show that the Appellant acted in the heat of passion brought on by a grave and sudden provocation before the passion had time to cool. The Appellant did not catch the deceased in his house with his wife but left his house armed with a stick

to search for the deceased and it took them quite some time to eventually track down the deceased and it was while the father and uncle of the deceased had
intervened in the matter and were trying to find an acceptable solution that the
Appellant attacked the deceased with the stick. It was not the case of the Appellant that he was suddenly provoked to act by something said by the deceased in course of the attempt by the father and the uncle of the deceased to resolve the matter. There was nothing to suggest that the Appellant acted on the spur of the moment and in the heat of passion before there was time for temper to cool and the fact that he left home armed with a stick suggests that he had planned what to do. The defence of provocation was not available to the Appellant on the state of the evidence – Biruwa vs. State (1992) 1 NWLR (Pt 220) 633 and Ahungur vs. State (2012) 12 NWLR (Pt 1313) 181. The finding of the lower Court on provocation is thus unassailable. The second issue for determination is also resolved in favour of the Respondent.

In conclusion, this Court finds no merit in this appeal and it is hereby dismissed. The judgment

of the Katsina State High Court in charge No KHT /DM/21C/2009 delivered by Honorable Justice I. B. Ahmed on the 28th of June, 2013 and the sentence passed therein on the Appellant are hereby affirmed. These shall be the orders of this Court.

UWANI MUSA ABBA AJI,J.C.A.: I had the privilege of reading before now, the draft of the lead judgement of my learned brother, Habeeb A.O. Abiru, JCA, just delivered.

The issues for determination as found by my learned brother has been eloquently and completely dealt with to the extent that I have nothing useful to add.

I therefore adopt the said reasoning and conclusions as mine in dismissing this appeal. This appeal is hereby dismissed as lacking in merit. The conviction and sentence of the Appeal as contained in the judgement of the Lower Court delivered on the 28th June 2013 is hereby affirmed.

ABDU ABOKI, J.C.A.: I have had the opportunity of reading the lead judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, and I agree with the reasoning and conclusion contained therein that this appeal lacks merit and should be dismissed.

I abide by the

consequential order in the lead judgment.

Appearances:

Mr. J. J. Usman with him, Paul KaluFor Appellant(s)

S. B. Umar (DPP) with him, A Umar (CSC), Halima Lawal (ACSC), Aminu Garba (ACSC), Abu Umar (SSC) and N Galadima (SC, Ministry of Justice Katsina State)For Respondent(s)

Appearances

Mr. J. J. Usman with him, Paul KaluFor Appellant

AND

S. B. Umar (DPP) with him, A Umar (CSC), Halima Lawal (ACSC), Aminu Garba (ACSC), Abu Umar (SSC) and N Galadima (SC, Ministry of Justice Katsina State)For Respondent

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